Interim Decision #3213 

MATTER OF GABRYELSKY 

In Deportation Proceedings 

A-13960837 

Decided by Board November 3, 1993 

(1) A waiver under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(c) (Supp. IV 1992), may be used in conjunction with an application for 

adjustment of status by an alien who is deportable for both drug and weapons 

offenses; thus a lawful permanent resident alien who has been convicted of a weapons 

violation is not ineligible to apply for adjustment of status and may concurrently 

apply for section 212(c) relief to waive his deportability arising from his drug 

conviction. 

(2) Under the regulations at 8 C.F.R. § 245.1(e) (1993), an alien may concurrently apply 

for adjustment of status and section 2I2(c) relief. 

(3) An applicant for adjustment of status is not precluded from concurrently applying for 

a waiver of inadmissibility under section 212(c) of the Act to waive another 

deportable offense, even though section 212(c) of the Act would not separately and 

independently waive all grounds of deportability. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)(i)j—Convicted of 

controlled substance violation 

Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation 

ON BEHALF OF RESPONDENT: 

Ramsey Clark, Esquire 

Lawrence W. Schilling, Esquire 

36 East 12th Street 

New York, New York 10003 

ON BEHALF OF SERVICE: 

David M. Dixon 

Appellate Counsel 

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

The respondent has appealed from the decision of the immigration 

judge dated February 5, 1993, finding the respondent deportable as 

charged, denying his requests for adjustment of status under section 

245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) 

(1988), and a waiver of inadmissibility under section 212(c) of the Act, 

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8 U.S.C. § 1182(c) (Supp. IV 1992), and ordering him deported from 

the United States. The appeal will be sustained. 

The respondent is a native and citizen of Poland, 1who was 

admitted to the United States at New York, New York, on December 

20, 1965, as a refugee when he was 14 years old. His status was 

adjusted to that of a lawful permanent resident on March 26, 1968. On 

November 14, 1988, he was convicted in the Superior . Court of 

California, Tebama County, of possession of a firearm, a machine gun, 

and possession of a silencer in violation of sections 12220, 12500, and 

12520 of the California Penal Code. Also on that date and in that 

court, the respondent was convicted of the offense of manufacture of a 

controlled substance, methamphetamine, in violation of section 

11379.6 of the California Health and Safety Code. Although he was 

sentenced to 5 years of imprisonment for the controlled substance 

violation and 8 months each for the weapons violations, the respondent served less than 5-years of imprisonment for his convictions. In 

addition, the respondent indicated in his application for adjustment of 

status that he was also convicted of malicious mischief, and of driving 

under the influence on two occasions. 

At his hearing before the immigration judge, the respondent 

requested the opportunity to apply for adjustment of status under 

section 245 of the Act in conjunction with a waiver of inadmissibility 

under section 212(c) of the Act. The immigration judge denied his 

requests, reasoning that the respondent was not separately eligible for 

adjustment of status and section 212(c) relief, and he could not 

"bootstrap" eligibility from one form of relief to the other. On appeal, 

the respondent argues that the immigration judge erred by denying his 

request for adjustment of status in conjunction with the application for 

section 212(c) relief. The respondent claims the immigration judge 

improperly determined that he was statutorily ineligible for adjustment of status and section 212(c) relief. 

Based on the respondent's admissions at his hearing and the records 

pertaining to his convictions that were presented by the Service, we 

agree that deportability has been established by the clear, unequivocal, 

and convincing evidence required by Woodby v MS, 276 U.S. 385 

(1966), and 8 C.F.R. § 242.14(a) (1993) to support the order of 

deportation. 

We reject the respondent's claim that the immigration judge erred 

in ordering him deported while his petition for habeas corpus is 

pending in the United States District Court for the Eastern District of 

California. The fact that the respondent may be attempting to 

1 The respondent claims his citizenship was revoked by the Polish Government after 

his parents escaped from that country in 1963. 

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collaterally attack his convictions does not affect his present deportability. See generally Matter of Khalik, 17 I&N Dec. 518 (BIA 1980); 

Matter of Fortis, 14 I&N Dec. 576 (BIA 1974); Matter of Sirhan, 13 

I&N Dec. 592 (BIA 1970). An alien cannot collaterally attack the 

legitimacy of a criminal conviction in a deportation or exclusion 

proceeding. See Trench v. INS, 783 F.2d 181 (10th Cir. 1986); 

Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981). The pendency of postconviction motions or other forms of collateral attack, not constituting 

direct appeals, do not serve to negate the finality of the conviction or 

the charge of deportability, unless and until the conviction has been 

overturned pursuant to such a motion. Okabe v. INS, 671 F.2d 863 

(5th Cir. 1982); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 

1975), cert. denied, 423 U.S. 1050 (1976). We therefore conclude that 

the respondent's convictions are final and fully sustain the charges of 

deportability. 

We find merit however to the respondent's assertion that the 

immigration judge erred in finding the respondent ineligible for 

adjustment of status and in concluding he could not combine the 

remedies of adjustment of status and section 212(c) of the Act. The 

respondent should have been allowed to apply for adjustment of status 

under section 245(a) of the Act, since he is statutorily eligible for that 

relief.2 Section 245(a) of the Act provides for the adjustment of status, 

in the discretion of the Attorney General, of an alien who was 

inspected and admitted or paroled into the United States if: (1) the 

alien makes an application for adjustment, (2) an immigrant visa is 

immediately available to him at the time his application is filed, and 

(3) the alien is eligible to receive an immigrant visa and is admissible 

for permanent residence. 

The record reflects that the respondent was admitted to this country 

in 1965, and with respect to the first prerequisite, he has submitted an 

Application for Permanent Residence (Form 1-485). Concerning the 

second requirement, the respondent's evidence, i.e., his Petition to 

Classify Status of Alien for Issuance of Immigrant Visa (Form 1-130) 

and Application for Advance Permission to Return to Unrelinquished 

Domicile (Form 1-191), indicate that he is the unmarried son of a 

United States citizen. He thus falls within the first-preference family 

visa category. See section 203(a)(1) of the Act, 8 U.S.C. § 1153(a)(1) 

(Supp. IV 1992). A visa petition filed on his behalf has been approved, 

and an immigrant visa would be immediately available to him, since 

first-preference visa numbers are now current. See Department of 

2The fact that the respondent has been a lawful permanent resident does not preclude 

him from applying for adjustment of status. See Tibke v. INS, 335 F.2d 42 (2d Cir. 

1964); Mader of Parodi, 17 I&N Dec. 608, 611 (BIA 1980). 

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State Visa Bulletin, Vol. VII, No. 26 (Aug. 1993); see also Matter of 

Rainford, 20 I&N Dec. 598. (BIA 1992). 

In regard to the third statutory requirement, we point out that while 

the respondent's conviction for possession of a firearm establishes his 

deportability under section 241(a)(2)(C) of the Act, see Matter of 

Chow, 20 I&N Dec. 647 (BIA 1993), affd, 12 F.3d 34 (5th Cir. 1993), 

it does not render him inadmissible for purposes of section 245 

adjustment, as there is no corresponding exclusion ground. In Matter 

of Rainford, supra, the Board specifically held that a conviction for 

criminal possession of a weapon did not preclude a finding of 

admissibility in connection with an application for adjustment of 

status under section 245 of the Act, because it is not a ground of 

excludability. Further, although the respondent's controlled substance 

conviction does render him inadmissible under section 

212(a)(2)(A)(i)(II) of the Act, he may utilize section 212(c) of the Act 

for the limited purpose of waiving this ground. See generally Matter of 

Hernandez-Casillas, 20 I&N Dec. 262, at 284 n. 6 (BIA 1990; A.G. 

1991), aff'd, 983 F.2d 231 (5th Cir. 1993). 

Section 212(c) of the Act provides that aliens lawfully admitted for 

permanent residence who temporarily proceed abroad voluntarily and 

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

unrelinquished domicile of 7 consecutive years, may be admitted in 

the discretion of the Attorney General without regard to certain 

specified grounds of exclusion enumerated in section 212(a) of the Act. 

The respondent is statutorily eligible to apply for this waiver insofar as 

he is a lawful permanent resident who apparently has maintained a 

lawful unrelinquished domicile in this country for 7 consecutive years. 

See section 212(c) of th Act; Matter of Edwards, 20 I&N Dec. 191, 

194-95 (BIA 1990). 

Although the statute describes a waiver under section 212(c) of the 

Act which is available to aliens seeking to eliminate a ground of 

inadmissibility upon application to enter the United States, it has been 

interpreted to include availability for relief in deportation proceedings 

as well where the alien has not departed from the United States 

subsequent to the acts that rendered him excludable. See Francis v. 

INS, 532 F.2d 268 (2d Cir. 1976); Matter of Granados, 16 I&N Dec. 

726 (BIA 1979), affd, 624 F.2d 191 (9th Cir. 1980); Matter of Hom, 16 

I&N Dec. 112 (BIA 1977), modified, Matter of Wadud, 19 1&N Dec. 

182 (BIA 1984); Matter of Silva, 16 I&N Dec. 26 (BIA 1976); see also 

Matter of Hernandez-Casillas, supra. 

The immigration judge properly determined that the respondent 

could not use section 212(c) of the Act to waive deportability for his 

firearms conviction. An alien deportable on the basis of a firearms 

conviction is ineligible for relief under section 212(c) because there is 

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Interim Decision #3213 

no exclusion ground corresponding to the deportation ground for 

conviction of a firearms offense. See Matter of Chow, supra; Matter of 

Hernandez-Casillas, supra; Matter of Granados, supra. But see BedoyaValencia v. INS, 6 F.3d 891 (2d Cir. 1993) (extending Francis rule to 

entry without inspection charge where there could not conceivably be 

an analogous ground of exclusion, and allowing application for section 

212(c) relief). We reject the respondent's claim that his weapons 

conviction could be a constituent of a section 212(a)(2)(B) ground of 

excludability (multiple criminal convictions) when combined with his 

convictions for manufacture of a controlled substance and malicious 

mischief, which could be 'waived by section 212(c). In Matter of 

Montenegro, 20 I&N Dec. 603 (BIA 1992), this Board followed the 

holdings of Matter of Wadud, supra, and Matter of Granada:, supra, 

and rejected the expansion of section 212(c) to include cases where the 

ground of deportability charged is not also a ground of inadmissibility, 

even where the alien's conviction would also cause him to be 

excludable for having been convicted of a crime involving moral 

turpitude under section 212(a)(2)(A)(i)(I) of the Act. 

We find support, however, in the federal regulations for the 

respondent's use of section 212(c) of the Act in conjunction with his 

application for adjustment of status. The regulations at 8 C.F.R. 

§ 242.17(a) (1993), pertaining to the creation of the status of an alien 

lawfully admitted for permanent residence under sections 244(a), 245, 

or 249 of the Act, 8 U.S.C. §§ 1254(a), 1255, 1259 (1988 & Supp. IV 

1992), provide in pertinent part: 

In conjunction with any application for creation of status of an alien lawfully 

admitted for permanent residence made to an immigration judge, if the respondent is 

inadmissible under any provision of section 212(a) of the Act and believes he meets 

the eligibility requirements for a waiver of the ground of inadmissibility, he may 

apply to the immigration judge for such waiver. 

We specifically note that an alien may apply for both adjustment of 

status and section 212(c) relief. The regulations at 8 C.F.R. § 245.1(e) 

(1993) provide: 

Concurrent applications to overcome exclusionary grounds. Except as provided in 

parts 235 and 249 of this chapter, an application under this part shall be the sole 

method of requesting the exercise of discretion under section 212(g), (h), (i), and (k) 

of the Act, as they relate to the excludability of an alien in the United States. Any 

applicant for adjustment under this part may also apply for the benefits of section 

212(c) of the Act, for permission to reapply after deportation or removal under 

section 212(a)(17) of the Act, and for the benefits of section 212(a)(28)(I)(ii) of the 

Act. No fee is required for filing an application to overcome the exclusionary grounds 

of the Act if filed concurrently with an application for adjustment of status under the 

provisions of the Act of October 28, 1977, and of this part. (Second emphasis added.) 

This regulation, allowing requests for discretionary waivers of 

inadmissibility under sections 212(g), (h), and (i) of the Act by aliens 

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in the United States, was first promulgated by the Commissioner of 

the Immigration and Naturalization Service as 8 C.F.R. § 245.1(f) in 

30 Fed. Reg. 14,778 (1965), and it was amended at 31 Fed. Reg. 535 

(1966). Paragraph (f) of 8 C.F.R. § 245.1 was amended at 31 Fed. Reg. 

2373 (1966), and the "Concurrent applications to overcome exclusionary grounds" heading and the sentence providing, "Any applicant for 

adjustment under this part may also apply for the benefits of section 

212(c) of the Act and for permission to reapply after deportation or 

removal," were added. The regulation was also amended at 32 Fed. 

Reg. 9632 (1967) (adding benefits under section 212(a)(28)), and at 43 

Fed. Reg. 18,644 (1978) (adding last sentence pertaining to fee). In 

1982, it was redesignated as 8 C.F.R. § 245.1(d) at 47 Fed. Reg. 

12,133 (1982) and revised at 47 Fed. Reg. 44,237 (1982). In 1987, it 

was redesignated in its current form at 8 C.F.R. § 245.1(e). See 52 

Fed. Reg. 6321 (1987). 

Under the provisions of 8 C.F.R. § 245.1(e) (1993), there is no 

requirement that section 212(c) of the Act separately and independently waive all grounds of deportability in order for an applicant for 

adjustment of status to concurrently apply for relief under sections 245 

and 212(c), as argued by the Service. 3Indeed, such a reading would 

render the regulation at 8 C.F.R. § 245.1(e) (1993) meaningless, for 

there would be no need to concurrently apply for adjustment of status 

to overcome exclusionary grounds if a section 212(c) waiver would 

independently waive all grounds of inadmissibility. We note that in. 

Matter of Hernandez-Casillas, supra, the Attorney General concluded 

that although a lawful permanent resident deportable for entering the 

United States without inspection is ineligible for section 212(c) relief, 

discretionary relief under section 212(c) is otherwise available in 

deportation proceedings where the alien requests adjustment of status 

under section 245 of the Act. Id. at 32 n.6, 47 n.16. Citing Matter of 

Smith, 11 I&N Dec. 325 (BIA 1965), the Attorney General indicated 

that if the ground of deportation had been other than illegal entry, a 

3We do not consider the instant case to be analogous to Matter of Roman, 19 I&N 

Dec. 855 (BIA 1988). In Matter of Roman, we found the respondent could not establish 

combined eligibility for nuns pro tunc permission to reapply for admission and a waiver 

of inadmissibility pursuant to section 241(f) of the Act, where she was not separately 

eligible for either form of relict The alien could not "bootstrap" eligibility from one 

waiver to the other since she would not be eligible for either form of relief without the 

other waiver having first been granted. In the instant case, the respondent does not need 

to have his status adjusted to that of a lawful permanent resident before he is eligible to 

apply for a waiver under section 212(c) of the Act; he is already a lawful permanent 

resident. In the adjustment of status context, a respondent can apply for several waivers, 

such as under sections 212(c), (g), (h), and (i) of the Act, in conjunction with his 

application for adjustment of status. See 8 C.F.R. § 245.1(e) (1993). 

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remand might have been necessary to permit the respondent to seek 

adjustment of status under section 245 of the Act. Id. at 47 n.16.4 

While we note that the regulation now at 8 C.F.R. § 245.1(e) (1993) 

was promulgated before Francis v. INS, supra, (expanding section 

212(c) relief to deportable aliens who have not temporarily departed 

from the United States), and Matter of Silva, supra, we are not 

persuaded by the Service's contention that these cases have mooted the 

applicability of this regulation and Matter of Smith, supra. There is no 

basis to ignore this regulation on the Service's theory that it is moot. It 

is a valid, properly promulgated, currently applicable regulation and 

cannot simply be disregarded. 

We note that the respondent is not ineligible for adjustment of 

status as a result of the weapons offense, and he would not be 

deportable as a result of the conviction if his status is adjusted to that 

of a lawful permanent resident. See Matter of Rainford, supra. In 

Matter of _Rainford we rejected the futility doctrine described in Matter 

of V-, 1 UN Dec. 293 (BIA 1942), (that it would be futile to admit 

someone only to have him immediately become subject to deportation) in the adjustment of status context. Thus, we held that the alien's 

conviction for criminal possession of a weapon did not bar him from 

adjustment of status, and that he would no longer be deportable on the 

basis of his conviction if granted adjustment of status to that of a 

lawful permanent resident. Consequently, we conclude that on the 

basis of the regulation at 8 C.F.R. § 245.1(e) (1993), the respondent in 

the instant case is eligible to apply for section 212(c) relief in 

conjunction with adjustment of status, notwithstanding his weapons 

convictions. 

Having found that the respondent is admissible to the United States 

and therefore eligible to apply for adjustment of status, as well as for 

section 212(c) relief, we will remand the case to the immigration judge 

to allow the respondent to present his applications for relief. 5We note 

that to be granted adjustment of status and section 212(c) relief, the 

respondent will also have to show the immigration judge that he merits 

4 In Mauer cofK-L-, 20 184N Dec. 654 (BIA 1993), VA 12 F.36 1102 (8th Cir. 1993), 

the Board noted that the respondent, who claimed eligibility for adjustment of status 

under section 245 of the Act, was not precluded from applying for that relief because of 

his firearms -violation, but because he did not present evidence of an approved visa 

petition. We indicated that his inadmissibility as a drug trafficker under section 

212(a)(2)(C) of the Act could not be waived under section 212(h), so he was ineligible for 

relief. By contrast, in the instant case the respondent is a lawful permanent resident who 

can use section 212(c) of the Act to waive his inadmissibility under section 

2 i 2(a)(2)(A)(1)(11). 

5 In light of our determination in this case, we need not address the other issues raised 

by the respondent on appeal. 

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the granting of relief in the exercise of discretion. Finally, visa 

numbers for first-preference classification will still need to be current. 

ORDER: The appeal is sustained and the record is remanded 

to the immigration judge for further proceedings in accordance with 

the foregoing opinion and for entry of a new decision. 

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