Interim Decision #2338 

MATTER OF ZOELLNER 

In Deportation Proceedings 

A-10316628 ' 

Decided by Board December 16, 1974 

(1) Where an alien had been convicted of two crimes involving moral turpitude and was 

thereafter, in a deportation proceeding, found deportable under section 241(a)(4) of the 

hiunigration and Nationality Act, he was properly advised that he could apply for 

adjustment of status wider section 245 of the Act in conjunction with an application for a 

waiver of inad missibility under section 212(h) of the Act. 

(2) The constitutionality of the immigration laws is not a proper subject for consideration 

in an administrative deportation hearing. 

(3) British Honduras is included in the definition of an adjacent island to the United 

States in section 101(b)(5) of the Act. Respondent is precluded from naming British 

Honduras as fie country of deportation under section 243(a) of the Act because he is 

neither native, citizen nor resident of that country. 

CHARGE: 

Order: Act of 1952—Section 241(a)(4), [8 U.S.C. 1251(a)(4)]—Convicted of two crimes 

involving moral turpitude at any time after entry. 

• 

ON BEHALF OF RESPONDENT: Glen H. Downs, Esquire 

Legal Aid Service 

732 S.W. Third Avenue 

Portland, Oregon 97204 

In a decision dated October 26, 1973, the immigration judge found the 

alien respondent deportable as charged and ordered his deportation to 

West Germany. The respondent has appealed from that decision. The 

appeal will be dismissed. . 

The respondent is a native and a citizen of Germany who entered the 

United States in 1955. At the hearing, the SerVice introduced certified 

records showing the following convictions relating to the respondent: (1) 

September 17, 1957, in the District Court of Grayson County, Texas, for 

the crime of theft over $50 (Exh. 2); (2) December 10, 1959, in the 

Municipal Court of the City and County of San Francisco, California, for 

the crime of petit larceny, section 488 of the California Penal Code (Exh. 

3); (3) July :.2, 1972, in the Circuit Court for Multnomah County, 

Oregon, for the crime of forgery in the first degree (Exh. 4). We agree 

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with the immigration judge's conclusion that the respondent's deportability under section 241(a)(4) of the Immigration and Nationality Act has 

been established by clear, convincing, and unequivocal evidence. 

The immigration judge informed the respondent that he could apply 

for adjustment of status under section 245 of the Act in conjunction with 

an application for a waiver of inadmissibility under section 212(h) of the 

Act (Tr. p. 41). No such application was submitted. The respondent is 

ineligible for any other discretionary relief from deportation because of 

his recent conviction. 

On appeal, counsel claims that the immigration judge should have 

terminated the proceedings because section 241(a)(4) of the Act is unconstitutional. However, as the immigration judge pointed out, the 

constitutionality of the immigration laws is not a proper subject for 

consideration in an administrative deportation hearing. Matter of Santana, 13 I. & N. Dec. 362 (BIA 1969); Matter of L—, 4 I. & N. Dec. 556 

(BIA 1951). 

Counsel alSo contends that the immigration judge erred in refusing to 

allow the respondent to designate British Honduras as the country of 

deportaton pursuant to section 243(a) of the Act. 

Section 243(a) permits an alien to designate the country to which he 

wishes to be deported, except that an alien may not designate "any 

foreign territory contiguous to the United States or any island adjacent 

thereto or adjacent to the United States unless such alien is a native, 

citizen, subject, or national of, or had a residence in such designated 

foreign contiguous territory or adjacent island." (Emphasis supplied.) 

Section 101(b)(5) of the Act defines the term "adjacent islands" as 

including ". . other British, French, and Netherlands territory or 

possessions in or bordering on the Caribbean Sea." 

In Matter of Longsworth, 13 I. &N. Dec. 225 (BIA 1969), we held that 

British Honduras is within the section 101(b)(6) definition of "adjacent 

islands," because it is a British territory bordering on the Caribbean 

Sea. In Matter of Piggott, 15 I. & N. Dec. 129 *(BIA October 30, 1974), 

we receded from the result reached in Matter of Longsworth with 

regard to the eligibility of a native of a foreign colonial' possession to 

apply for suspension of deportation under section 244 of the Act. Our 

holding in Master of Piggott, had no effect on our holding in Matter of 

Longsworth that British Honduras was within the section 101(b)(5) 

definition of "adjacent islands." 

Since British Honduras is within the section 101(b)(5) definition of 

"adjacent islands," its designation by one who is not a native, citizen, 

subject, national, or resident of that country is precluded by section 

243(a) of the Act. Consequently, it was proper for the immigration judge 

to refuse to order deportation to British Honduras, and instead to direct 

deportation to West Germany, the country in which the respondent was 

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born. The respondent stated that he did not fear persecution if deported 

to West Germany (Tr. p. 40). - 

The decision of the immigration judge was correct. The appeal will be 

dismissed. 

ORDER: The appeal is dismissed. 

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