1 United States Court of Appeals,

Fifth Circuit.

No. 93-5436

Summary Calendar.

Guiseppe CIPRIANO, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

July 5, 1994.

Petition for Review of an Ord er of the Immigration and

Naturalization Service.

Before POLITZ, Chief Judge, DAVIS and SMITH, Circuit Judges.

POLITZ, Chief Judge:

Guiseppe Cipriano petitions for review of the denial of relief

from deportation by the Board of Immigration Appeals. We grant

review in part, vacate in part, and remand for further proceedings.

Background

Cipriano, a native and citizen of Italy, entered the United

States in 1956 as a five-year-old child and became a permanent

lawful resident. He was deported in 1975 because of convictions

for theft of an automobile, attempted larceny under $100, obtaining

less than $100 under false pretenses, and conspiring to possess a

$20 counterfeit bill. With only one relative in Italy and unable

to speak the language, in short order Cipriano surrepti tiously

returned to the United States. In 1980 he was found possessed of

two grams of heroin and a firearmand was convicted of both

offenses. He served 14 months of a five-year sentence. During his

incarceration he recovered from a drug dependency. He also was1 8 U.S.C. § 1251(a)(2) (now codified at 8 U.S.C. §

1251(a)(1)(B)).

2 8 U.S.C. § 1182(c).

3 8 U.S.C. § 1254(a)(1).

2 con victed of re-entering the United States after deportation in

violation of 8 U.S.C. § 1326, serving 179 days of a two-year

sentence for that offense and two additional months for parole

violation. Upon his release from prison in June 1985, Cipriano

obtained employment with an automotive parts wholesaler and rapidly

rose through the ranks to the position of Operations Manager. He

moved in with his elderly parents and supports them.

In 1988 the Immigration and Naturalization Service initiated

a second round of deportation proceedings, charging that Cipriano

h ad entered the United States without inspection in violation of

section 241(a)(2) of the Immigration and Nationality Act. 1 An

immigration judge ordered deportation to Italy and denied his

applications for discretionary relief. The Board of Immigration

Appeals affirmed on statutory grounds; Cipriano timely petitioned

for review.

Analysis

Cipriano contests the Board's denial of his applications for

waiver of deportation under section 212(c) 2 and for suspen sion of

deportation under section 244(a)(1). 3 Section 212(c) authorizes

the Attorney General to waive deportation for aliens with seven

consecutive years of lawful unrelinquished domicile in the United

States. Cipriano does not qualify for such relief from the pending4 782 F.2d 1299 (5th Cir.1986).

5 898 F.2d 474 (5th Cir.1990).

6 8 U.S.C. § 1105a(c) provides in pertinent part:

An order of deportation ... shall not be reviewed by any

court if the alien ... has departed from the United States

after the issuance of the order.

7 898 F.2d at 476 (internal quotation omitted).

8 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).

3 deportation order because the 1975 order of deportation terminated

his status as a lawful resident. He insists, however, that he is

eligibl e for n unc pro tunc relief from the 1975 order. Our

precedents foreclose review of that claim. In U manzor v. Lambert 4

and again in Quezada v. INS 5 we held that 8 U.S.C. § 1105a(c)

precludes judicial review of orders of deportation after departure

from the Unit ed States. 6 Cipriano maintains that deportation

pursuant to an allegedly unconstitutional order does not trigger

this jurisdictional infirmity. We rejected that proposition in

Quezada, noting that the exception urged by Cipriano, wher e

recognized, "has become a sinkhole that has swallowed the rule of

1105a(c)." 7

United States v. Mendoza-Lopez, 8 on which Cipriano relies,

does not hold to the contrary. Therein the Supreme Court allowed

a collateral attack on a deportation order which was used to

establish an element of a criminal offense where judicial review of

t he administrative order previously had been unavailable. The

instant proceeding is not criminal. The Court explicitly reserved

the question at issue herein: whether post-departure judicial9 481 U.S. at 837 n. 13, 107 S.Ct. at 2154 n. 13 (stating

that the opinion expresses no view about the holding in Mendez v.

INS, 563 F.2d 956 (9th Cir.1977)).

10 8 U.S.C. § 1101(f)(7).

11 647 F.2d 457 (5th Cir.1981).

4 review of an allegedly unconstitu tional deportation order is

available in the context of deportation proceedings. 9

We are persuaded, however, that the Board erred in finding

Cipriano ineligible as a matter of law for suspension of

deportation under section 244(a)(1). To obtain such relief, an

applicant mu st establish seven years of continuous physical

presence, good moral character, and severe hardship if deportation

occurs. Section 101(f)(7) 1 0 pr ecludes a finding of good moral

character if the applicant was incarcerated for 180 days or more

d uring the seven-year period. The Board determined that section

101(f)(7) barred Cipriano's efforts to e stablish good moral

character because he was incarcerated from October 1984 until June

1985, within seven years prior to his original application for

section 244(a )(1) relief. Cipriano argues that the Board should

have looked back sev en years from the date of its decision on

September 20, 1993. That reflection would have placed his period

of imprisonment outside the relevant time frame. We are

constrained to agree.

In Vargas-Gonzalez v. INS, 11 we r eversed a denial of section

244(a)(1) relief and remanded the case to the Board when the

applicant's seven-year eligibility period accrued during the

pendency of his non-frivolous petition for review. The facts of12 Cf. Prichard-Ciriza v. INS, 978 F.2d 219 (5th Cir.1992)

(refusing to allow a section 212(c) applicant to count the time

that his appeal was pending with the Board toward the seven-year

requirement when the appeal was frivolous).

13 532 F.2d 268 (2d Cir.1976).

14 See id. Had Cipriano been afforded an opportunity to

apply for a waiver of deportation in 1975, he might well have

been successful in light of the length of his residence in the

United States and the relatively minor nature of his offenses.

5 the instant case merit similar treatment. Cipriano's appeal had

substance and therefore does not trigger concerns that it was filed

solely for purposes of delay. 12 His challenge to the

constitutionality of the 1975 deportation proceeding, in which he

was not advised of the availability of a section 212(c) waiver,

finds support in the INS's longstanding recognition, predating the

seminal case of F rancis v. INS, 1 3 of the whimsy of limiting such

waivers to exclusion cases. 14 With the removal of the statutory bar

to establishing good character, Cipriano may ma ke a substantial

showing of entitlement to relief, particularly in light of his 40

years of residence in this country, hi s drug dependency

rehabilitation, current employment, and response to family

obligations. Accordingly, we vacate the order of the Board insofar

as it dismissed Cipriano's application for section 244(a)(1) relief

on statutory grounds and remand for consideration of that

application on the merits.

Petition for review DENIED in part, GRANTED in part, and the

matter is REMANDED for further proceedings consistent herewith.