Interim Decision #3109 

MATTER OF GORDON 

In Deportation Proceedings 

A-35355155 

Decided by Board May 25, 1989 

(1) An alien in deportation proceedings who was found deportable but was granted a 

waiver of inadmissibility under section 212(c) of the Immigration and Nationality 

Act, 8 U.S.C. § 1182(c) (1982), returns to the same lawful permanent resident status 

that he previously held. 

(2) Notwithstanding the respondent's conviction for a crime committed after a grant of a 

waiver of inadmissibility, his grant may not be subsequently withdrawn for that 

reason in a reopened deportation proceeding; the Immigration and Naturalization 

Service must initiate new deportation proceedings in order to have the immigration 

judge consider evidence of subsequent criminal activity by the respondent. 

(3) While section 212(c) of the Act does not expressly or implicitly provide for 

revocation or rescission of a grant of a waiver of inadmissibility or a conditional grant 

of a waiver, an immigration judge may nevertheless reopen proceedings and 

reconsider his own decision to grant a waiver if he believes that the waiver was 

erroneously granted in the first instance. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. § 1251(a)(4)]—Crimes involving moral 

turpitude 

Lodged: Act of 1952—Sec. 241(a)(1) [8 U.S.C. § 1251(a)(1)1—Excludable at entry under 

section 212(a)(19) j8 U.S.C. § 1182(a)(19)]—Fraud or willful 

misrepresentation of a material fact 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

David Iverson, Esquire Hans Burgos-Gandia 

P.O. Box 8329 General Attorney 

St. Thomas, U.S. Virgin Islands 00801 

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

This is an appeal from the decision of an immigration judge dated 

December 5, 1988, in which he found the respondent deportable under 

section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1251(a)(4) (1982), denied his application for a waiver of inadmissibility under section 212(c) .of the Act, 8 U.S.C. § 1182(c) (1982), and 

ordered him deported from the United States to Tortola, British 

Virgin Islands. The respondent's appeal will be sustained. 

The respondent is a 32-year-old native of Tortola, British Virgin 

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Interim Decision #3109 

Islands, and a citizen of the United Kingdom. He was admitted to the 

United States on June 28, 1977, as a lawful permanent resident. 

Thereafter, on June 20, 1986, the Immigration and Naturalization 

Service instituted deportation proceedings against him by the issuance 

of an Order to Show Cause, Notice of Hearing, and Warrant for Arrest 

of Alien (Form I-221S). The Order to Show Cause alleged, inter alia, 

that the respondent had been convicted on December 28, 1978, in the 

Magistrate's Court of Tortola, Colony of the British Virgin Islands, of 

robbery. He was sentenced to 3 months' imprisonment and ordered to 

pay restitution for the value of the stolen property. The Order to Show 

Cause further alleged that the respondent was also convicted on April 

3, 1979, in the same court, of receiving stolen property. This time he 

was sentenced to 4 months' imprisonment with hard labor. Based on 

these convictions, the Service charged the respondent with deportability under section 241(a)(4) of the Act, as an alien who at any time after 

entry was convicted of two crimes involving moral turpitude, not 

arising out of a single scheme of criminal misconduct. 

At a deportation hearing conducted on June 8, 1987, the Service 

presented certified true copies of the judgment orders rendered against 

the respondent in the Magistrate's Court of Tortola. We find, as did 

the immigration judge, that deportability under section 241(a)(4) of 

the Act was established by clear, unequivocal, and convincing 

evidence. See Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. 

§ 242.14(a) (1988). 1The respondent applied for a waiver of inadmissibility under section 212(c) of the Act. After a hearing on the merits of 

the application, the immigration judge granted the respondent a 

section 212(c) waiver, finding that he had demonstrated strong family 

ties in the United States, and that his equities outweighed the negative 

factors in the record. The immigration judge further concluded that 

the respondent's criminal activity appeared to have ceased, thus 

indicating rehabilitation on his part. Matter of Marin, 16 I&N Dec. 

1 On December 8, 1986, the Service lodged an additional charge of deportability 

against the respondent under section 241(a)(1) of the Act, alleging that he was excludable 

at the time of entry under section 212(aX19), as an alien who procured a visa or entry 

into the United States by fraud or willful misrepresentation of a material fact. The 

Service alleged that the respondent falsely stated in his visa application that he had 

never been convicted of a crime involving moral turpitude, when in fact he had been 

convicted of burglary in 1976. The immigration judge heard testimony with regard to 

this issue and .concluded that the respondent did not make a deliberate attempt to hide 

his criminal record. Indeed, a police report reflecting the respondent's burglary 

conviction was attached to his original application for a visa and was available for 

inspection to the American consular officer who interviewed the respondent. The 

immigration judge thus concluded that the respondent did not procure his visa by fraud, 

and therefore the charge of deportability under section 241(a)(1) of the Act had not been 

sustained. The Service did not appeal this determination. 

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581 (BIA 1978). The Service did not appeal this decision and it 

became final on June 18, 1987. 8 C.F.R. §§ 3.37, 242.21 (1987). 

A year later, on August 15, 1988, the Service filed a motion to 

reopen the respondent's deportation proceedings. As good cause for 

the motion to reopen, the Service submitted evidence that the 

respondent had been convicted on March 13, 1987, in the Territorial 

Court of St. Thomas, the Virgin Islands, of assault. He was sentenced 

to 30 days' imprisonment, fined $50, and placed on probation for 1 

year.2The Service further submitted evidence that the respondent had 

been convicted on February 3, 1988, in the District Court of the Virgin 

Islands, of first degree assault. He was sentenced to 5 years' imprisonment. 

According to the Service, the respondent's 1988 assault conviction 

constitutes clear evidence of his lack of rehabilitation. Therefore, the 

Service argued, the grant of the section 212(c) waiver, which was based 

in part on a finding of rehabilitation, should be revoked, and the 

respondent should be ordered deported from the United States. The 

immigration judge granted the Service's motion to reopen on August 

31, 1988, and a new deportation hearing was conducted on December 

5, 1988. At the deportation hearing, the immigration judge concluded, 

based on the new convictions, that the respondent was not rehabilitated after all, and therefore a waiver should not have been granted. The 

immigration judge denied the original application for waiver and 

ordered the respondent deported from the United States to Tortola, 

British Virgin Islands. This appeal followed. 

The issue in this case is whether a grant of a waiver of inadmissibility under section 212(c) of the Act may be subsequently withdrawn, 

pursuant to a motion to reopen deportation proceedings, based on 

evidence of renewed criminal activity. 

The Service contends on appeal that an immigration judge may, 

upon motion by the trial attorney, reopen or reconsider any case in 

which he has made a decision, unless jurisdiction in the case has 

vested in the Board. 8 C.F.R. § 242.22 (1988). A motion to reopen 

may be granted by the immigration judge if he is satisfied that the 

evidence sought to be offered is material and was not available and 

could not have been discovered or presented at the hearing. 8 C.F.R. 

§ 242.22 (1988). The Service points out that 8 months after being 

granted a waiver, the respondent was again convicted of assault. This 

new conviction is material to the issue of rehabilitation and was 

unavailable at the time of the hearing. Had this evidence been before 

the immigration judge previously, he would not have granted the 

2This assault conviction occurred 3 months prior to the respondent's first deportation 

hearing. It was apparently not part of the record at that time and not considered by the 

immigration judge in his decision to grant section 212(c) relief. 

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respondent a waiver of inadmissibility in the exercise of discretion. 

The Service therefore argues that reopening was justified. The Service 

further argues that once deportation hearings are reopened, an 

immigration judge may withdraw a grant of section 212(c) relief based 

on a subsequent conviction. We do not agree. 

Section 212(c) of the Act provides as follows: 

Aliens lawfully admitted for permanent residence who temporarily proceeded 

abroad voluntarily and not under an order of deportation, and who are returning to a 

lawful unrelinquished domicile of seven consecutive years, may be admitted in the 

discretion of the Attorney General without regard to the provisions of paragraphs (1) 

through (25) and paragraphs (30) and (31) of subsection (a). 

We note initially that the language of section 212(c) of the Act does 

not contain a provision for the revocation or rescission of a prior grant 

of a waiver of inadmissibility. Compare section 212(c) with section 205 

of the Act, 8 U.S.C. § 1155 (1982), and section 246 of the Act, 8 

U.S.C. § 1256 (1982). Neither does the language of section 212(c) 

contain any express provision for a conditional grant of a waiver. 

Compare section 212(c) with sections 212(g) and (h) of the Act and 

Matter of Mascorro-Perales, 12 I&N Dec. 228. 231 (BIA 1967) (the 

section 212(h) waiver was intended to be conditioned upon the future 

good behavior of an alien and could be revoked if any subsequent 

crime was committed). Indeed, this Board has specifically rejected the 

practice of conditional grants of section 212(o) waivers. Instead, we 

held that such relief should be granted unconditionally as to the 

grounds of inadmissibility specified where an alien establishes that 

such relief is warranted. Matter of Pryzgocki, 17 I&N Dec. 361 (BIA 

1980).3 

A grant of a waiver of inadmissibility under section 212(c) of the 

Act fully returns an alien to the same lawful permanent resident status 

previously held. Matter of Przygocki, supra. Once a waiver of 

inadmissibility is granted with respect to certain crimes, deportation 

proceedings must be initiated anew to consider subsequent criminal 

offenses. The immigration judge in this case conducted a full hearing 

on the merits of the respondent's application for section 212(c) relief 

and concluded that, despite his clear deportability, the respondent 

merited such relief in the exercise of discretion. This grant of section 

212(c) relief restored the respondent to his previous status of that of 

alien lawfully admitted for permanent residence. The waiver did not 

3The predecessor provision of section 212(c) of the Act (the seventh proviso to section 

3 of the 1917 Immigration Act) contained specific language authorizing conditional 

grants of relief. These conditions were ordinarily in the form of warnings to the alien to 

remain a person of good moral character and to not commit any more offenses in the 

future. Matter of G-Y-G-, 4 I&N Dec. 211 (BIA 1950; Acting A.G. 1951); Matter of S-, 4 

I&N Dec. 180 (BIA, Acting A.G. 1951). The seventh proviso was superseded by section 

212(c) of the Act, which contains no language authorizing conditional grants. 

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carry with it the condition that if the respondent were convicted of 

another crime in the future, he would be subject to deportation on the 

same grounds already waived. Reopening may not serve as the vehicle 

by which subsequent crimes are considered after a section 212(c) 

waiver has been granted. To allow this would be to leave the alien in a 

tenuous state indefinitely, without the benefit of the procedural 

safeguards afforded in a new deportation hearing. 

We note that although the respondent cannot again be charged with 

deportability based on the same criminal convictions already waived, 

his prior crimes do not completely disappear from the record for 

immigration purposes. The respondent, for example, has now become 

deportable because of an additional crime involving moral turpitude, 

which can serve as the basis for a new Order to Show Cause in 

conjunction with a prior crime involving moral turpitude. See Matter 

of Mascorro-Perales, supra. The prior convictions may also be considered by the immigration judge in a new deportation hearing with 

respect to issues of rehabilitation and discretion. 

We do not by this decision interfere with the immigration judge's 

inherent power to reopen and reconsider his own decisions where a 

section 212(c) waiver was erroneously granted in the first instance, for 

example, because the respondent was not statutorily eligible for such 

relief, or because the relief was granted without the benefit of certain 

material information which was not previously available. Cf. Matter of 

Tayabji, 19 I&N Dec. 264 (BIA 1985). In this case, for example, the 

respondent was convicted of assault in March 1987, 3 months prior to 

his first deportation hearing. Yet at the hearing, the respondent denied 

having been charged with or convicted of any crimes in the Virgin 

Islands, other than a burglary conviction in 1978. Had reopening been 

predicated upon material misrepresentations made by the respondent 

in conjunction with the procurement of discretionary relief, reopening 

might have been justified. 

We conclude that a grant of section 212(c) relief serves to preserve 

the respondent's lawful permanent resident status in the United States 

notwithstanding the specified offenses found by the immigration judge 

to render the respondent deportable. Any subsequent criminal or 

immigration violations must be addressed within the context of new 

deportation proceedings pursuant to a new Order to Show Cause. The 

grant of a waiver under section 212(c) of the Act may not be 

conditioned upon the future good behavior of an alien. Reopening to 

consider subsequent crimes was therefore not justified in this case. 

Accordingly, the respondent's appeal is sustained. 

ORDER: The appeal is sustained. 

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