Interim Decision #2703 

MATTER OF SALMON 

In Deportation Proceedings 

A-30587001 

Decided by Board December 29, 1978 

(1) Where a ground of deportation is also a ground of inadmissibility which may be waived 

under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), that 

relief is available to an alien in deportation proceedings. 

(2) As the charge of deportability under section 241(a)(4) of the Act, 8 U.S.C. 1251(a)(4) 

(conviction of a crime involving moral turpitude), is the equivalent of a ground of 

excludability under section 212(a)(9), 8 U.S.C. 1182(a)(9) (exclusion based on conviction 

of a crime involving moral turpitude), section 212(c), 8 U.S.C. 1182(c), will be available 

to the respondent in deportation proceedings. 

(3) The mere fact of an alien's conviction of a crime providing the basis for deportation does 

not, in itself, end that alien's lawful domicile for section 212(c) purposes nor does it 

terminate his status as a lawful permanent resident. Matter of S—, 6 1. Si N. Dec. 392 

(BIA 19b4; A.G. 1955) followed. 

(4) Section 212(c) does not provide an indiscriminate waiver for all who demonstrate 

statutory eligibility for such relief. 

(5) An alien bears the burden of demonstrating that, as a matter of discretion, he warrants 

section 212(c) relief. Matter of Maria, Interim Decision 2666 (BIA 1978) followed. 

(6) The standards established in Matter of Maria in considering applications for section 

212(c) relief are not limited only to those applications involving aliens convicted of drug 

offenses but apply equally to an alien convicted of a crime for which he has been found 

deportable under section 241(a)(4) of the Act. 

(1) Although confined aliens and those who have recently committed criminal acts have a 

more difficult task in securing discretionary relief, an immigration judge may not 

decline to entertain an application for relief under section 212(c) of the Act by a 

statutorily eligible alien merely because he is held in confinement. Matter of Fernandez, 

14 I. & N. Dec. 24 (BIA 1972) distinguished. 

(8) Despite recent convictions for criminal trespass in the third degree, and robbery in th e 

third degree, where youthful alien had eight years of residence, cluse family ties, and 

had just been released on parole, case remanded for consideration of evidence of 

possible rehabilitation. 

CHARGE: 

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4))—Conviction of crime involving moral turpitude committed -within five years of entry and 

sentenced to confinement for a year or more 

ON REHA_LF OF RESPONDENT: 

Willard E. Myers, III, Esquire 

Prisoners' Legal Services of New York 

Ithaca, New York 14850 

Ithaca, NY 14850 

ON BEHALF OF SERVICE: 

George Indelicato 

Appellate Trial Attorney 

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Interim Decision #2703 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

The respondent has appealed from the decision of an immigration 

judge, dated March '7, 1978, finding him deportable as charged 1and 

denying his request for relief from deportation under section 212(c) of 

the Immigration and Nationality Act, 8 U.S.C. 1182(c). The record will 

be remanded. 

The respondent is a 22-year-old , native of Great Britain and citizen of 

Jamaica who was admitted to the United States as a lawful permanent 

resident in October, 1970. At a deportation hearing held on March 7, 

1978, the respondent conceded deportability under section 241(aX4) of 

the Act, 8 U.S.C. 1251(a)(4), as an alien who had been convicted of a 

crime involving moral turpitude committed within five years after entry 

for which he had been sentenced to confinement in a prison or corrective 

institution for a year or more. The only issue on appeal involves the 

immigration judge's denial of the respondent's application for section 

212(c) relief. 

The following evidence appears of record. In October 1975, the 

respondent was charged with criminal trespass in the third degree, 

which arose out of his entry into the New York subway without paying 

the fare (Tr. pp. 16, 17). He paid a fine of $25 in connection with his 

conviction (Ex. 6). 2On February 17, 1976, the respondent was convicted 

in the Supreme Court of New York for Kings County of the offense of 

robbery in the third degree, committed on September 14, 1975. On April 

12, 1976, the respondent was sentenced to three years in a New York 

correctional facility for this offense (Ex. 3). On March 15, 1976, the 

respondent was again convicted of robbery in the third degree, for 

which he was sentenced by the Supreme Court of New York for 

Richmond County to an indeterminate term, not to exceed four years 

(Ex. 7). This sentence was to run concurrently with the sentence imposed by the Kings County court. 

At a deportation hearing held on March 7, 1978, the respondent 

conceded deportability as charged, and indicated his desire to apply for 

section 212(c) relief from deportation (Tr. p. 2). The trial attorney 

argued that the respondent was statutorily ineligible for such relief 

because his conviction for robbery on February 17, 1976, precluded him 

The respondent was charged, in the Order to Show Cause issued on August 1, 1977, 

with deportability under section 241(aX4) of the Act. It appears that the immigration 

judge's decision listing the charge of deportability as section 241(a)(1) is a mere typographical error and will be treated by us as such. 

2Although a pre-sentence report of the respondent and the decision of the immigration . 

 judge refer to the date of the respondent's sentencing for this offense as February 19, 

1975, we believe that the correct date is February 19, 1076, us the offense was committed 

in October, 1975. 

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Interim Decision #2703 

from establishing the requisite seven years of lawful permanent residence necessary for a grant of section 212(c) relief. The immigration 

judge did not specifically determine the question, but rather, in his 

decision, stated: 

Assuming, arguendo, that the Government's position is correct there is still a question 

as to whether the respondent would have been eligible as a matter of discretion. 

The immigration judge then went on to find that the respondent did not 

merit the favorable exercise of discretion. 

Availability of Section 

212(c) in Deportation Proceedings 

Section 212(c) of the Immigration and Nationality Act provides, in 

pertinent part, 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 seven 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 grounds specified 

include an alien who has been convicted of a crime involving moral 

turpitude as set forth in section 212(a)(9) of the Act, 8 U.S. C. 1182(a)(9). 

Although the language in section 212(a)(9) concerning excludability on 

the basis of conviction for a crime involving moral turpitude is not 

exactly the same as the language of section 241(a)(4) 3of the Act concerning deportability for a conviction of a crime involving moral turpitude, we find that drawing such a distinction would run counter to the 

rationale of Francis v. INS, 532 F2d 268 (2 Cir. 1976), adopted by this 

Board in Matter of Silva, Interim Decision 2532 (BIA 1976). 

In Francis, supra, the Second Circuit Court of Appeals held that the 

provisions of section 212(c) are applicable not only to permanent resident aliens who temporarily proceed abroad voluntarily and not under 

an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, but that such provisions 

are also applicable to nondeparting permanent resident aliens. In Mat3Section 241(a)(4) provides: 

Any alien in the United States (mcluding an alien crewman) shall, upon the order of 

the Attorney General, be deported who- 

. . . . is convicted of a crime involving moral turpitude committed within five years 

after entry and either sentenced to confinement or confined therefor in a prison or 

corrective institution, for a year or more, or who at any time after entry is convicted 

of two crimes involving moral turpitude, not arising out of a single scheme of cri_minal 

misconduct, regardless of whether confined therefor and regardless of whether the 

convictions were in a single trial. . . . 

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Interim Decision #2703 

ter of Silva, supra, we adopted the holding of the Francis court and 

concluded that section 212(c) permits a waiver of a ground of inadmissibility to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the act or acts 

which render him deportable. Therefore, if a ground of deportation is 

also a ground of inadmissibility, as here, section 212(c) can be invoked in 

a deportation hearing. Cf. Matter of Ham, Interim Decision 2557 (BIA 

1977); Matter of Tanori, Interim Decision 2467 (BIA 1976). 

Eligibility 

We also find that the respondent is not barred from seeking section 

212(c) relief by the fact of his conviction for robbery on February 17, 

1976. The Service argued at the respondent's deportation hearing that 

this conviction alone ended the period of lawful domicile necessary to a 

grant of relief under section 212(c) in that it occurred before seven years 

had elapsed after the respondent's entry as a lawful permanent resident. However, in Matter of 6 I. & N. Dec. 392 (BIA 1954; A.G. 

1955), we held that the fact that an alien may have become deportable 

subsequent to his admission to the United States for lawful permanent 

residence, without more, was insufficient to preclude him from seeking 

relief under section 212(c). This position appears to have been followed 

by the Service in Matter of Mosqueda„ 14 I. & N. Dec. 55 (R.C. 1972). 

Therefore, we find that the fact of the respondent's conviction (providing a basis for deportation) does not in itself terminate the respondent's 

lawful permanent resident status, nor the lawful domicile necessary for 

a grant of section 212(c) relief We conclude, therefore, that the respondent is statutorily eligible for such relief. 

Discretion 

However, section 212(c) does not provide an indiscriminate waiver for 

all who demonstrate statutory eligibility for such relief. Instead, the 

Attorney General or his delegate is required to determine as a matter of 

discretion whether the applicant warrants the relief sought. The alien 

bears the burden of demonstrating that his application merits favorable 

consideration. Matter of Marin, Interim Decision 2666 (BIA 1978). 

In Matter of Morin, we established the standards to be applied in 

considering applications for section 212(c) relief. 4We observed that 

confined aliens and those who have recently committed criminal acts will 

have a more difficult task in showing that discretion should be exercised 

4 Contrary to counsel's assertions on appeal, the standards set out in Mann to guide the 

exercise of discretion in section 212(e) cases are not limited only to those applications 

involving aliens convicted of drug offenses, but apply equally to an alien such as the 

respondent, who was convicted of robbery in the third degree. 

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Interim Decision #2703 

in their behalf than aliens who have committed the same offense in the 

more distant past. However, we also there held that, contrary to the 

immigration judge's opinion in this case, Matter of Fernandez, 14 I. & 

N. Dec. 24 (BIA 1972) should not be read as permitting an immigration 

judge to decline to entertain an application for relief under section 

212(c) by a statutorily eligible respondent merely because he is held in 

confinement. 5 

In his decision, the immigration judge cited the favorable factors 

present in the respondent's application, including his length of residence 

in the United States (more than eight years), his close family ties here 

(his parents and three sisters), and the hardship the respondent would 

suffer if he were forced to return to Jamaica, his native country_ The 

immigration judge also considered the respondent's age at the time of 

his convictions for robbery, and the favorable report of one of the 

respondent's teachers contained in the record. However, the immigration judge found that these favorable factors, balanced against the 

serious nature and recency of the respondent's convictions, were not 

sufficient to merit a favorable exercise of discretion. 

Since the date of the decision in this case, the respondent has been 

released on parole. This development should, we find, be considered by 

the immigration judge in considering the respondent's application for 

discretionary relief. See generally Matter of Marin, supra. We will, 

therefore, remand the record to the immigration judge to enable him to 

consider this additional evidence. On remand, the respondent should be 

given an opportunity to present any additional information he may have 

in support of his application, including any evidence of rehabilitation 

since the date of his incarceration. Accordingly, the record will be 

remanded to the immigration judge. 

ORDER: The record is remanded. 

* Although the immigration judge cited Matter of Fernandez as permitting him to 

xr•efuse to entertain the section 212(c) application because the respondent was still in 

Prison, he in fact accepted the application and allowed the respondent the full opportunity 

present evidence in support of a favorable exercise of discretion. 

738