Interim Decision #2127 

MATTER OF MOSQUEDA 

In Section 223 Proceedings 

A-12810791 

Decided by Regional Commissioner March 1, 1972 

Application for issuance of a reentry permit is denied as a matter of discretion 

pursuant to the provisions of section 223(b) of the Immigration and Nationality Act where the applicant would be executing an outstanding order of 

deportation upon his departure from the United States and his status as an 

alien lawfully admitted for permanent residence would be changed thereby. 

ON BEHALF OF APPLICANT: Joseph W. Solomon, Esquire 

1'7510 N.E. Eighth Place 

Miami, Florida 33162 

The application for a reentry permit was denied by the District 

Director, Miami, Florida and is now considered on appeal. 

The applicant is a 46-year-old native and citizen of Cuba. He was 

paroled into the United States on October 18, 1962 and adjusted to 

permanent resident status on December 5, 1964 under Public Law 

89-732. 

He was convicted on March 27, 1969 of unlawful possession and 

unlawful sale of marijuana and sentenced to two years in a 

penitentiary. On the basis of these convictions he was found by a 

Special Inquiry Officer to be deportable from the United States 

and was ordered to be deported to Cuba. He applied under section 

243(h) of the Immigration and Nationality Act, as amended, for 

relief from deportation and it was granted to him. On January 18, 

1971 a warrant of deportation was issued but at the same time he 

was notified that his deportation to Cuba would not be effected at 

that time. Section 243(h) reads as follows: 

The Attorney General is authorized to withhold deportation of any alien 

within the United States to any country in which in his opinion the alien 

would be subject to persecution on account of race, religion, or political opinion 

and for such period of time as he deems to be necessary for such reason. 

The applicant desires to visit sick relatives in Costa Rica. He is 

presently in the United States and has not been deported. However, section 101(g) of the Immigration and Nationality Act and 

regulations, 8 CFR 243.5, provide that any alien who has departed 

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Interim Decision #2127 

from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law. 

Section 243(h) protects him from deportation to a country where 

he would be subject to persecution, which in his case is Cuba. If he 

departs to Costa Rica, he will deport himself. 

It is noted, in passing, that the applicant would be ineligible for 

an immigrant visa and would be excludable from admission to the 

United States under section 212(aX23) of the Immigration and 

Nationality Act, as amended, as an alien who has been convicted 

of possession and sale of marijuana. Consideration has been given 

to the possibility that the applicant might qualify for a waiver of 

that ground of inadmissibility pursuant to section 212(c) of the Act. 

However, that section clearly states that its provisions may be 

invoked only on behalf of an alien "lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and 

not under an order of deportation. . ..". (Emphasis supplied.) As 

indicated above, the applicant would be proceeding abroad under 

an order of deportation. Accordingly, there is no procedure by 

which he could overcome his excludability under section 212(a)(23) 

of the Act at this time. He would also be excludable under section 

212(aX17) of the Act as an alien who has been deported, unless he 

is given permission to reapply. However, it would be inappropriate 

as it would serve no useful purpose to grant him such permission, 

since it is clear that this alien could not qualify for reentry as an 

immigrant if he left the United States (Matter of Martinez-Torres, 

10 I. & N. Dec. 776). Ordinarily, however, the fact that an alien 

would be inadmissible upon his return to the United States with a 

reentry permit would not, in and of itself, be grounds for denial of 

an application therefor. 

There are other factors requiring consideration in the instant 

application for a reentry permit under section 223 of the Act. That 

section provides that any alien "lawfully admitted for permanent 

residence" who intends to depart from the United States temporarily may apply for such document. If the permit is issued, in the 

absence of fraud or misrepresentation on the applicant's part, the 

rightful holder must be recognized as an alien lawfully admitted 

for permanent residence who is returning from a temporary visit 

abroad, when he presents the unexpired permit upon his return to 

the United States (Matter of V--, 4 I. & N. Dec. 143). 

The term "lawfully admitted for permanent residence" is defined in section 101(a)(20) of the Act as "the status of having been 

lawfully accorded the privilege of residing permanently in the 

United States as an immigrant in accordance with the immigration laws, such status not having changed". (Emphasis supplied.) In 

Matter of S—, 6 I. & N. Dec. 392, it was held that the status of an 

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Interim Decision #2127 

alien (such as the applicant herein) who was lawfully admitted for 

permanent residence, has not changed within the meaning of that 

definition by reason of the fact that he had subsequently become 

deportable. Therefore, the application in the instant case may not 

be denied on the ground that the applicant is no longer an alien 

"lawfully admitted for permanent residence". 

However, once the applicant departs and thereby executes the 

outstanding order of deportation, his status will have changed and 

he may no longer be considered an alien "lawfully admitted for 

permanent residence" within the meaning of section 101(a)(20) of 

the Act. It would indeed be a contradiction to issue a reentry 

permit to the applicant which, pursuant to Matter of V—, supra, 

would require the Service to recognize him as a lawful permanent 

resident upon his return from a temporary visit abroad, with the 

knowledge that the applicant will have forfeited that status upon 

his departure under the outstanding order of deportation. 

Section 223(b) of the Act specifically provides for the exercise of 

discretion in issuing a reentry permit. Under the circumstances 

described above, denial of the application as a matter of discretion 

is warranted. 

ORDER: It is ordered that the appeal be and the same is hereby 

dismissed. 

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