Interim Decision #3161 

MATTER OF CERNA 

In Deportation Proceedings 

A-30257519 

Decided by Board October 7, 1991 

(1) An applicant for relief under section 212(c) of the Immigration and Nationality Act, 

8 U.S.C. § 1182(c) (1988), must be a lawful permanent resident of the United States 

and must have a lawful unrelinquished domicile of 7 consecutive years. 

(2) Barring a subsequent reversal of a respondent's deportability finding by an appellate 

court or administratively, an alien's status as a lawful permanent alien ends upon the 

entry of an administratively final order of deportation. 

(3) A respondent who is subject to an administratively final order of deportation cannot 

successfully move to reopen deportation proceedings to again apply for relief under 

section 212(c) of the Act as such a respondent is no longer a lawful permanent resident 

of this country. 

(4) Authority from one circuit is not binding in another and the Board declines to follow 

the holding in Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), outside the jurisdiction of 

the United States Court of Appeals for the Second Circuit. 

(5) Motions to reopen and motions to reconsider are separate and distinct motions with 

different requirements—a motion to reconsider requests that the original decision be 

reexamined in light of additional legal arguments, a change of law, or an argument or 

aspect of the case that was overlooked, while a motion to reopen seeks to reopen 

proceedings so that new evidence can be presented and a new decision entered on a 

different factual record, normally after a further evidentiary hearing. 

(6) The Board of Immigration Appeals has not held that a respondent who has been 

denied relief under section 212(c) of the Act is precluded from having the original 

decision reconsidered. 

(7) The Board is not favorably disposed to the practice of waiting until the conclusion of 

the administrative appeal process to file a motion that seeks to offer additional 

evidence regarding the matter previously in issue. 

(8) The Board has not held that the existence of outstanding equities creates a right to 

have the consequences resulting from particularly serious criminal misconduct waived 

or that such equities compel a grant of discretionary relief; rather, the Board has noted 

just the opposite (i.e., that the nature of the adverse factor or factors may ultimately be 

determinative of whether relief under section 212(c) of the Act is granted). 

CHARCie. 

Order: Act of 1952—Sec. 241(a)(11) (8 U.S.C. § 1251(a)(11))—Convicted of controlled 

substance violation 

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Interim Decision #3161 

ON BEHALF OF RESPONDENT: Helena Tetzeli, Esquire 

2650 S.W. 27th Avenue, 2nd Floor 

Miami, Florida 33133 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated March 25, 1987, an immigration judge found 

the respondent deportable as charged and denied his application for 

relief from deportation pursuant to section 212(c) of the Immigration 

and Nationality Act, 8 U.S.C. § 1182(c) (1982), in the exercise of 

discretion. The respondent, who had conceded his deportability, 

appealed solely from the denial of his request for relief under section 

212(c). The respondent's appeal was dismissed by this Board on July 

26, 1990. On January 23, 1991, the respondent, through new counsel, 

filed a "Motion to Reconsider and/or Reopen and Remand." The 

motion will be denied. 

We note initially that although styled as both a motion to reconsider 

and a motion to reopen, the motion before us is, in fact, solely a 

motion to reopen deportation proceedings. The motion seeks the 

opportunity to submit evidence that was not previously a matter of 

record and seeks a further opportunity to pursue a request for relief 

under section 212(c) of the Act on the supplemented record. There is 

no argument presented that alleges any specific error in our prior 

decision in this case. In any event, even if the respondent's submission 

is viewed in part as a motion to reconsider, we decline to reconsider 

our July 26, 1990, decision as we find nothing in the motion that 

would cause us to reevaluate that decision on the factual record that 

was then before us. 

As noted, the respondent is seeking to have his deportation 

proceedings reopened so that he can present what he submits is new 

evidence and again pursue an application for relief under section 

212(c) of the Act. However, the respondent cannot successfully move 

to reopen proceedings to again apply for relief under section 212(c) as 

he can no longer establish prima facie eligibility for such relief. An 

applicant for relief under section 212(c) of the Act must be a lawful 

permanent resident of the United States and must have a lawful 

unrelinquished domicile of 7 consecutive years. See section 212(c) of 

the Act; Gonzales v. INS, 921 F.2d 236, 238 (9th Cir. 1990). This 

respondent is no longer a lawful permanent resident of this country as 

his status as such ended upon the entry of the final administrative 

order of deportation by this Board. See section 101(0(20) of the Act, 8 

U.S.C. § 1101(a)(20) (1988); Rivera v. INS, 810 F.2d 540 (5th Cir. 

1987); Matter of Lok, 18 I&N Dec. 101 (BIA 1981), aff'd on other 

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Interim Decision #3161 

grounds, 681 F.2d 107 (2d Cir. 1982); see also 8 C.F.R. §§ 3.1(d)(2), 

3.37, 242.20, 243.1 (1991). For the reasons we enunciated in Matter of 

Lok, supra, barring a reversal on the merits of the respondent's 

deportability finding by an appellate court or administratively, the 

respondent lost his status as a lawful permanent resident on July 26, 

1990. 1Thus, he is no longer statutorily eligible for relief under section 

212(c). Gonzales v. INS, supra. Accordingly, the respondent's motion 

to reopen and remand will be denied. 

We note that the United States Court of Appeals for the Second 

Circuit recently found a decision of this Board denying reopening of 

deportation proceedings for this same reason to be "arbitrary and 

capricious." Vargas v. INS, 938 F.2d 358, 361-63 (2d Cir. 1991). The 

Second Circuit, in reversing our decision and in disagreeing with the 

Ninth Circuit's analysis in Gonzales v. INS, supra, concluded that a 

respondent's eligibility for section 212(c) relief, once established, 

survives a finding of deportability. The court ruled that, even if a 

respondent no longer is a lawful permanent resident of the United 

States, he CAE successfully move to reopen proceedings to again apply 

for relief under section 212(c) so long as his eligibility for such relief 

had once been established. Authority from one circuit is not binding in 

another, however, and we respectfully decline to follow the holding in 

Vargas v. INS outside the jurisdiction of the Second Circuit for the 

following reasons. See State of Ga. Dep't of Medical Assist. v. Bowen, 

846 F.2d 708, 710 (11th Cir. 1988). 

As regards Vargas v. INS, supra, we note that the basis for our 

conclusion in that case, that a respondent who has lost his lawful 

permanent resident status is not eligible to have deportation proceedings reopened to again apply for relief under section 212(c), was not, as 

stated by the court, simply supported by one "phrase" in Matter of 

Lok, supra. Vargas v. INS, supra, at 360. We also would not agree that 

we "did not present [our] decision [in Vargas] as an interpretation of 

statutory provisions." Id. at 363. Our decision in that case was based 

(as is our decision today) on the rationale we set forth in Matter of Lok, 

which in turn was founded on our interpretation of sections 101(a)(20) 

and 212(c) of the Act. 

Moreover, contrary to the holding in Vargas v. INS, our conclusions 

in this regard do not result in an "[i]mplicit [a]mendment" of the 

1 We would also deem the respondent's lawful domicile in this country to have ended 

on the same date that his status as a lawful permanent resident ended. See Appendix. 

However, the precedent decisions of the United States Court of Appeals for the Eleventh 

Circuit that arc controlling in this case hold that the respondent's lawful domicile ended 

with the issuance of the Order to Show Cause and Notice of Hearing (Form 1-221). 

Ballbe v. INS, 886 F.2d 306 (11th Cir. 1989), cert. denied, 495 U.S. 929 (1990); MartiXiques v. INS, 741 F.2d 350 (11th Cir. 1984). 

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regulatory provisions regarding motions to reopen set forth in 8 C.F.R. 

§§ 3.2 and 3.8 (1991). Vargas v. INS, supra, at 361. First, the 

regulations certainly do not create an express right to have proceedings 

considered for reopening in order to further pursue applications for 

relief under section 212(c) of the Act. In fact, as the Supreme Court 

noted in INS v. Jong Ha Wang, 450 U.S. 139 (1981), "The present 

regulation is framed negatively; it directs the Board not to reopen 

unless certain showings are made. It does not affirmatively require the 

Board to reopen proceedings under any particular condition." Id. at 

144 n.5. Moreover, the controlling regulations are not "effectively 

amend[ed]" in this context—or in any other—by the application of the 

rule that a motion to reopen deportation proceedings to apply for relief 

will be denied in the absence of a showing of prima facie eligibility for 

the relief in question. Vargas v. INS, supra, at 361. 

Further, in Vargas v. INS, the court stated that our "application of 

the Lok rule to motions to reconsider Section 212(c) relief has been 

erratic. Id. at 362. (Emphasis added.)" The court also stated that a 

"motion to reopen or to reconsider is not a request for a new decision_ 

Rather, it permits a decisionmaker to reevaluate the original decision." Id. In our view, both of these statements inappropriately 

entwine motions to reopen and motions to reconsider, which "are two 

separate and distinct motions with different requirements." Chudshevid v. INS, 641 F.2d 780, 783 (9th Cir. 1981); see also Sanchez v. INS, 

707 F.2d 1523, 1529 (DC. Cir. 1983). We have never held that a 

respondent who has been denied relief under section 212(c) is 

precluded from having the original decision reconsidered. A motion to 

reconsider asserts that at the time of the Board's previous decision an 

error was made. It "questions the Board's decision for alleged errors in 

appraising the facts and the law." 1 C. Gordon & S. Mailman, 

Immigration Law and Procedure § 3.0517](a], at 3-61 (rev. ed. 1991). 

When we reconsider a decision, we are in effect placing ourselves back 

in time and considering the case as though a decision in the case on the 

record before us had never been entered. If the respondent was eligible 

for relief at the time the original decision was entered, then in 

reconsidering the decision we would treat his status as that which it 

had been at the time of the initial decision. The very nature of a 

motion to reconsider is that the original decision was defective in some 

regard. A motion to reopen proceedings, however, is a fundamentally 

different motion.2 See Sanchez v. INS, supra; Chudshevid v. INS, supra. 

2A motion to reconsider "is a request that the Board reexamine its decision in light of 

additional legal arguments, a change of law, or perhaps an argument or aspect of the case 

which was overlooked, while Cal motion to reopen is usually based upon new evidence or 

a change in factual circumstances." Hurwitz, Motions Practice Before the Board of 

Immigration Appeals, 20 San Diego L Rev. 79, 90 (1982) (footnotes omitted). 

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Interim Decision #3161 

It does not contest the correctness of (or simply request a reevaluation 

of) the prior decision on. the previous factual record. Rather, a motion 

to reopen proceedings seeks to reopen proceedings so that new 

evidence can be presented and so that a new decision can be entered, 

normally after a further evidentiary hearing. We fmd nothing either 

inconsistent or illogical in holding that a respondent can move for 

reconsideration of a decision, which was entered while he was a lawful 

permanent resident and which denied relief under section 212(c), 

based on an argument that that decision was incorrectly entered, while 

a respondent who has lost his status as a lawful permanent resident 

cannot thereafter successfully move to reopen proceedings to have a 

different application for relief under section 212(c) adjudicated on a 

different factual record. Rather, we would find it inconsistent to 

conclude that an alien who is no longer a lawful permanent resident of 

the United States could have proceedings reopened to apply for relief 

only available to lawful permanent residents. 

Finally, as regards Vargas v. INS, supra, to our knowledge, we have 

not been "erratic" in our application of the "Lok rule" to motions to 

reopen proceedings to apply for section 212(c) relief. Id at 362. In 

view of the sheer number of decisions we enter and the difficulty, as a 

practical matter, of attempting to review every uost-Lok Board 

decision involving a motion to reopen proceedings to further pursue 

an application for relief under section 212(c), we would be hesitant to 

state that we have never granted a motion to reopen proceedings in 

such circumstances, just as we would not state that we have never 

entered an erroneous decision in any other context. The fact that such 

decisions occur is the reason that provisions for reconsideration exist. 

We are not aware of any such decisions, however, and note that none 

was identified in Vargas v. INS. 

Even were we to apply the Second Circuit's rationale to this case, we 

would deny the respondent's motion. We note initially that we are not 

favorably disposed to the practice of waiting until the conclusion of the 

administrative appeal process to file a motion that seeks to offer 

additional evidence regarding the matter previously in issue. Here, as 

regards the most significant of the respondent's new equities, we note 

that his marriage to a United States citizen occurred less than 1 month 

after the filing of his appeal from the adverse decision of the 

immigration judge issued on March 25, 1987, and his United States 

citizen child was born in November 1987. There is no explanation 

provided for the failure to submit a motion proffering this additional 

evidence while the respondent's administrative appeal was pending. 

In any event, wholly aside from its timing, and considering both the 

previous record and the new matters regarding the respondent's 

familial and community ties, his business venture, his property ties, 

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Interim Decision #3161 

and his completion of parole, we still would not grant this motion in 

the exercise of discretion. We are particularly sympathetic to the 

hardship that the respondent's deportation may cause his 4-year-old 

child and his United States citizen wife (although the significance of 

the marriage and the possible hardship to the respondent's wife is 

somewhat diminished by the fact that the marriage occurred after the 

respondent had been found deportable and his request for discretionary relief had already been denied by the immigration judge). The 

respondent does have outstanding equities, as is often the case with 

applicants for relief under section 212(c) of the Act. In describing how 

we exercise our discretion, we have stated that, absent outstanding or 

unusual equities, relief under section 212(c) will be denied in the 

exercise of discretion in cases where there are particularly adverse 

factors present. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). 

However, we have never held that the existence of such equities creates 

a right to have the consequences resulting from serious criminal 

misconduct waived. Nor do such equities compel a grant of discretionary relief. Rather, we have noted just the opposite (i.e., that the nature 

of the adverse factor or factors may ultimately be determinative of 

whether relief under section 212(c) is granted). See Matter of Buscerni, 

19 I&N Dec. 628, 634 (BIA 1988); Matter ofMaritt, 16 I&N Dec. 581, 

584-85 (BIA 1978). There are drug offenses of varying degrees of 

seriousness and in our view this respondent was convicted of a 

particularly serious drug trafficking offense. His 1984 conviction 

resulted from his purchase and importation into the United States of 

half a kilogram of cocaine. He personally bought the cocaine in Bolivia 

and had his shoes modified to conceal the drugs in order to smuggle 

them into this country. Moreover, the immigration judge found the 

respondent's credibility lacking in his testimony regarding the particulars of this crime and regarding his previous criminal record. 3The 

respondent can have been under no illusion of the seriousness with 

3The respondent testified that he had been convicted of possession of marihuana in 

1975 and that he pled guilty to a charge of carrying a concealed weapon in 1974 or 1975. 

As regards this latter matter, he testified as follows: He was driving his mother's car and 

a friend, who had a gun, "went inside a car to ... to get some tapes that belonged to 

him or something like that." They were both arrested. His friend was found not guilty, 

but the respondent was charged with carrying a concealed weapon because the weapon 

was in his car. He pled guilty because he knew that he was going to get probation and he 

wanted to avoid "wasting more time and money" by going to trial. The record indicates 

that he was adjudicated guilty of possession of marihuana on July 7, 1975, and received 

a suspended sentence. Some 6 months later, he was placed on probation for carrying a 

concealed weapon, carrying a firearm without a license, and breaking and entering an 

automobile. The adjudication of guilt was withheld in this latter case, leaving the 

respondent without a conviction under Florida law, and his probation was terminated 

on October 18, 1977. 

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which drug trafficking is viewed. While drug trafficking crimes of this 

nature are not unique in the gravity with which we view them, there 

are few adverse matters we view as more serious. We have never 

held—and certainly do not hold today—that there are no circumstances under which we might grant relief in the face of adverse 

matters of the nature present in this case. However, even considering 

the additional factors asserted in this motion, the case before us is 

simply not one in which we are satisfied that a favorable exercise of 

our discretion is warranted. The responsibility for the hardships and 

difficulties that this respondent and his family may face rest squarely 

on the respondent's shoulders. 

Accordingly, the respondent's "Motion to Reconsider and/or Reopen and Remand" will be denied in the exercise of discretion as well 

as on grounds of statutory eligibility. 

ORDER: The respondent's motion to reopen and reconsider is 

denied. 

APPENDIX 

We note that a principal -mission of the Board of Immigration 

Appeals is to ensure as uniform an interpretation and application of 

this country's immigration laws as is possible. At times achieving this 

goal is beyond our control as our decisions are reviewable in federal 

court and we ordinarily apply the law of a circuit to the cases that arise 

within that circuit. We certainly acknowledge the benefit to the 

adjudication process of having our decisions thus reviewable, particularly in view of the profound nature of the rights often at issue in the 

cases we review. Moreover, assistance in achieving some measure of 

uniformity is provided by the "great deference" a court ordinarily 

must accord our interpretation of the governing statute. Udall v. 

Tallman, 380 U.S. 1, 16 (1965); see also INS v. Cardoza-Fonseca, 480 

U.S. 421, 447-48 (1987); Chevron, U.S.A., Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 842-45 (1984). In this context, 

however, the history subsequent to our decision in Matter of Lok, 18 

I&N Dec. 101 (13IA 1981), was rather disheartening. 

We recognized in Matter of Lok what, in our view, is the 

inextricable relationship between the issue of when lawful permanent 

resident status terminates and when lawful unrelinquished domicile 

ends for section 212(c) purposes (i.e., it would seem to make little 

sense to conclude that an alien's lawful domicile has ended prior to the 

point at which he loses his status as a "lawful permanent resident," 

just as it would seem to make little sense to conclude that lawful 

domicile continues beyond the point that a final order of deportation 

has been entered). We recognized that arguments could be made in the 

deportation context as to various stages at which an alien's status as a 

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lawful permanent resident could be considered to have "changed" 

within the meaning of section 101(a)(20) of the Act. For reasons we 

articulated in Matter of Lok, and which we will not reiterate here, we 

concluded that the most appropriate rule was that an alien's status as a 

lawful permanent resident ends with an administratively final order of 

deportation, barring a subsequent reversal on the merits of the finding 

of deportability by a court or administratively as a result of a motion. 

Our interpretation of the law established a rather straightforward test 

in an area of the law which is particularly contorted, even in the 

context of an Immigration and Nationality Act that in simpler times 

was characterized as a "never-never land ... where plain words do not 

always mean what they say." Yuen Sang Low v. Attorney General, 479 

F.2d 820, 821 (9th Cir.), cert. denied, 414 U.S. 1039 (1973). 

Subsequent to our decision in Lok, various courts of appeals 

considered the issues we addressed therein (although not always 

addressing the relationship between the issue of when an alien loses his 

lawful permanent resident status and when his lawful unrelinquished 

domicile ends). We recognize that our perspective may be somewhat 

colored, as it was our decisions under review, but we arc not left with 

the sense in many instances that deference, substantial or otherwise, 

was accorded our interpretation of the relevant laws and regulations. 

Initially, the Second Circuit, in reviewing our decision in the Lok 

case itself, noted its view that the respondent's lawful domicile may 

have ended "even earlier" than the point specified in our decision (i.e., 

it "probably" ended when the respondent conceded deportability and 

"no appeal was taken challenging the finding of deportability"). Lok v. 

INS, 681 F.2d 107, 110 (2d Cir. 1982).' The premise underlying this 

conclusion was that the respondent's order of deportability had 

"probably" become final at that point. We note, however, that— 

contrary to this premise—the immigration judge's order of deportability had not become administratively final, as the respondent did 

appeal from the immigration judge's decision. Under the controlling 

regulations then in effect, if an immigration judge's "order" was 

appealed, it was not final. 8 C.F.R. § 242.20 (1982). The "order" that 

I Thus, in some respects, the Second Circuit takes a more restrictive interpretation of 

the laws in this area than do we, while in others, the court takes a far more expansive 

interpretation. That is, it would appear that the Second Circuit would cut off a lawful 

permanent resident's ability to initially establish eligibility for relief under section 212(e) 

at an earlier point than we would. However, if eligibility has once been established, the 

court would recognize no finality (other than the "physical deportation" of the alien 

from the United States) to an alien's right to seek reopening of deportation proceedings 

to further pursue an application for such relief even beyond the point that a loss of 

lawful permanent resident status clearly has occurred. See Vargas v. INS, 938 F.2d 358, 

363 (2d Cir. 1991). 

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was referred to was "the order" in its entirety, not simply the specific 

aspect of the order that was challenged on appeal. See 8 C.F.R. 

§ 242.18(a), (c) (1982); see also 8 C.F.R. §§ 3.1(d)(2); 3.37; 242.20 

(1991) (which make clear that it is "the decision" that either is or is 

not final, rather than its individual components). 

Thereafter, the Eleventh Circuit in its first decision in Marti -xiques 

v. INS, 713 F.2d 1511 (11th Cir. 1983), concluded that a respondent's 

lawful domicile did not terminate when we rendered a decision 

dismissing the respondent's appeal from an immigration judge's denial 

of discretionary relief because the respondent's presence could not be 

deemed unlawful until the administrative denial of discretionary relief 

was upheld on appeal. This decision was in turn followed by the Ninth 

Circuit's decision in Wall v. INS, 722 F.2d 1442 (9th Cir. 1984), in 

which it was held that the respondent's lawful domicile continued 

pending judicial consideration of his petition for review, but only 

because that petition challenged the respondent's deportability finding. The Ninth Circuit did not find it determinative whether or not the 

challenge to the administrative finding of deportability was ultimately 

successful. Next, on rehearing, the Eleventh Circuit vacated its prior 

decision in Marti-Xiques and held that the date that the Order to Show 

Cause and Notice of Hearing (Form I-221) is issued is the appropriate 

point at which to conclude that eligibility for section 212(c) relief is 

determined. Marti-Xiques v. INS, 741 F.2d 350 (11th Cir. 1984). This 

decision did not specifically address the issue of whether a respondent 

is deemed to have lost his status as a lawful permanent resident by the 

mere issuance of the Order to Show Cause or, whether such status is 

not lost at that point, but lawful domicile ends nonetheless. The Ninth 

Circuit then held in Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 

1985), that when "an alien concedes his deportability or fails to raise a 

challenge to an order of deportation, he may no longer be said to 

harbor a 'lawful intent' to remain in this country even if the INS fails 

to take immediate steps to expel him beyond our borders." Id. at 736. 

The court did not find it necessary to determine if one's "lawful 

intent" terminates when proceedings commence or when the deportation order becomes final. Id. 

The Fifth Circuit was the next to consider the issues raised in 

Matter of Lok. The Fifth Circuit initially ruled that an alien against 

whom a final administrative order had been entered was nonetheless 

entitled to claim his lawful permanent resident status for the purpose 

of filing a motion to reopen deportation proceedings to apply for relief 

under section 212(c) based in part on its conclusion that the Board 

decision in Matter of Lok would create a "Catch-22" and "essentially 

make[] the discretionary relief provided by section 212(c) unavailable 

in the deportation context." Rivera v. INS, 791 F.2d 1202, 1205 (5th 

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Cir. 1986). On reconsideration, however, the Fifth Circuit concluded 

that our decision in Lok was entitled to "great deference" and that our 

conclusion in that case was a "sensible one." Rivera v. INS, 810 F.2d 

540, 542 (5th Cir. 1987). In its 1987 decision, the Fifth Circuit noted 

that the Lok rationale did not create the "Catch-22" that it had been 

concerned about in its initial decision. Id. at 541. Finally, in 1989, the 

Eleventh Circuit reaffirmed its position that the date for determining 

whether an alien has maintained his lawful domicile for section 212(c) 

purposes is the date of issuance of the Order to Show Cause.. Ballbe v. 

INS, 886 F.2d 306 (11th Cir. 1989), cert. denied, 495 U.S. 929 (1990). 

Thus, depending upon where a case arises, the point at which a 

respondent must establish his eligibility for section 212(c) relief can be 

as early as the date of issuance of the Order to Show Cause (which may 

be long before the Immigration and Naturalization Service actually 

commences deportation proceedings by the filing of the Order to Show 

Cause with the Office of the Immigration Judge) or as late as the date 

of a circuit court's dismissal of a petition for review, if that petition 

involves an issue of deportability. 

If nothing else is clear, we believe this succession of decisions 

reflects the accuracy of our original view expressed in Matter of Lok, 

supra, in 1981 that there are "various stages within the deportation 

process at which the status of an alien 'lawfully admitted for 

permanent residence' may be considered to have changed within the 

meaning of section 101(a)(20) of the Act." Id. at 105. We also believe 

that these decisions, considered together, reflect that this is not an 

issue in which there is an obviously correct or incorrect answer. 

Perhaps we should take some solace in the fact that at least one circuit 

views our analysis in Matter of Lok as sensible. And, we note that the 

diversity of opinions here does not create any unmanageable burden 

on the adjudication process itself—we simply must assure that the 

right test is applied in the right circuit. At times that can pose a 

difficulty as a petition for review is not always filed in the same circuit 

in which the deportation proceeding was held, but this certainly is not 

a unique circumstance. Situations like this, however, do create a very 

real problem. The laws that we administer and the cases we adjudicate 

often affect individuals in the most fundamental ways. We think that 

all would agree that to the greatest extent possible our immigration 

laws should be applied in a uniform manner nationwide, particularly 

where the most significant aspects of the law are in issue. Here, 

however, we are left with a patchwork application of the law—with the 

most profound decisions affecting aliens (all of whom in this context 

have been lawful permanent residents of the United States) tied to the 

mere happenstance of where their cases arise geographically. 

408