Interim Decision #3138 

MATTER OF MEDRANO 

In Deportation Proceedings 

A-29076886 

Decided by Board September 10, 1990 

Decided by Board February 5, 1991 

(1) The status of a lawful temporary resident alien who commits a deportable offense 

must be terminated pursuant to section 245A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1255a(b)(2) (1988), as a condition precedent to the commencement 

of deportation proceedings. 

(2) A motion to reconsider which is based on a legal argument that could have been 

raised earlier in the proceedings will be denied. 

CHARGE: 

Order: Act of 1952—See. 241(a)(11) [8 U.S.C. § 1251(a)(11)]—Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Janice B. Neetenbeek 

General Attorney 

David Dixon 

Appellate Counsel 

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

Opinion: Morris, Board Member. 

BEFORE THE BOARD 

(September 10, 1990) 

In a decision dated March 15, 1990, the immigration judge entered 

an order terminating the respondent's deportation proceedings "without prejudice to the Immigration Service to reinstitute deportation 

proceedings at such time as the Respondent's lawful temporary 

resident status has properly been terminated," and the immigration 

judge certified his decision to the Board pursuant to 8 C.F.R. §§ 3.1(c) 

and 3.7 (1990). The decision of the immigration judge will be 

affirmed. 

The respondent is a 26-year-old native and citizen of Mexico. He 

entered the United States without inspection on March 25, 1980. On 
Interim Decision #3138 

March 24, 1988, the respondent was granted lawful temporary resident 

status pursuant to section 245A(a) of the Immigration and Nationality 

Act, 8 U.S.C. § 1255a(a) (1988). On October 6, 1989, the Immigration 

and Naturalization Service issued an Order to Show Cause, Notice of 

Hearing, and Warrant for Arrest of Alien (Form 1 -221S) against the 

respondent, charging that he had been convicted of delivery of cocaine 

in violation of the Texas Penal Code on October 1, 1989, and that he 

was consequently deportable pursuant to section 241(a)(11) of the Act, 

8 U.S.C. § 1251(a)(11) (1988). The respondent appeared pro se for a 

deportation hearing on October 24, 1989. After noting that the 

respondent had been granted temporary resident status under the 

Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 

100 Stat. 3359, the immigration judge asked the Service attorney to 

submit a brief addressing the issue of whether he had the authority to 

proceed to a determination of the respondent's deportability in the 

absence of any evidence that the respondent's temporary resident 

status had been terminated. 

The respondent's deportation hearing was continued pending the 

Service's submission of a brief regarding this question. In its brief 

submitted to the immigration judge, the Service contended that 

because it has exclusive jurisdiction over applications for temporary 

residence pursuant to section 245A(a) of the Act, the immigration 

judge could not make inquiries regarding the respondent's temporary 

resident status and had to "proceed to the merits of the deportation 

proceeding." The immigration judge disagreed. He reviewed the Act's 

provisions concerning termination of temporary residence, as well as 

the regulations implementing the termination procedure, and he 

concluded that he could not conduct the respondent's deportation 

hearing until the Service established that his temporary resident status 

had been terminated. The immigration judge then certified his 

decision to the Board. 

The issue which this case presents is whether the Service is required 

to terminate, as a condition precedent to the commencement of 

deportation proceedings, the lawful temporary resident status of an 

alien who commits a deportable offense after he has acquired 

temporary residence in this country. At section 245A(b)(2), the Act 

provides: 

The Attorney General shall provide for termination of temporary resident status 

granted an alien under subsection (a)— 

(A) if it appears to the Attorney General that the alien was in fact not eligible for 

such status; 

(B) if the alien commits an act that (i) makes the alien inadmissible to the United 

States as an immigrant, except as otherwise provided under subsection (d)(2), or (ii) 

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Interim Decision #3138 

is convicted of any felony or three or more misdemeanors committed in the United 

States; or 

(C) at the end of the thirty-first month beginning after the date the alien is granted 

such status, unless the alien has filed an application for adjustment of such status 

pursuant to paragraph (I) and such application has not been denied. 

The respondent is charged with having been convicted of a drugtrafficking felony, and he is accordingly subject to having his 

temporary resident status terminated pursuant to section 

245A(b)(2)(B) of the Act. 

In accordance with the statutory mandate that "[t]he Attorney 

General shall provide for termination of temporary resident status" 

for specified aliens, the Service has promulgated regulations providing 

for the termination of an alien's temporary residence. See 54 Fed. Reg. 

6504, 6511 (1989). These regulations have been codified at 8 C.F.R. 

§ 245a.2(u) (1990). 

The regulation which sets forth the procedure for the termination of 

temporary resident status requires that the Service issue a Notice of 

Intent to Terminate to the alien; that the alien be given 30 days to 

submit evidence in response to the termination charge; and that the 

Service notify the alien of an adverse decision giving reasons for that 

determination. 8 C.F.R. § 245a.2(u)(2) (1990). This regulation also 

provides that an alien may appeal an adverse decision to the Service's 

Administrative Appeals Unit within 30 days of the service of the 

termination decision. Id.; see also 8 C.F.R. § 103.3(a)(2)(i) (1990). 

Furthermore, the regulations written by the Service regarding 

termination of temporary residence clearly contemplate that the 

termination process will precede the commencement of deportation 

proceedings against an alien: 

Termination of the status of any alien previously adjusted to lawful temporary 

residence under section 245A(a) of the Act shall act to return such alien to the 

unlawful status held prior to the adjustment, and render him or her amenable to 

exclusion or deportation proceedings under section 236 or 242 of the Act, as 

appropriate. 

8 C.F.R. § 245a.2(u)(4) (1990) (emphasis added). 

On appeal, the Service has indicated that its present position is that 

a lawful temporary resident who commits an offense for which he 

becomes subject to deportation from the United States must have his 

temporary resident status terminated prior to the institution of 

deportation proceedings against him. By virtue of its position on 

appeal, the Service has removed its opposition to the decision of the 

immigration judge. Because the Service apparently intends to terminate, prior to the commencement of deportation proceedings, the 

temporary resident status of all aliens whose cases arise in the same 

procedural posture as the respondent's, we find no reason to disturb 

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the immigration judge's decision in this case. Accordingly, the decision 

below, terminating the respondent's deportation proceedings because 

the Service failed to present evidence to establish that the respondent's 

temporary residence had been terminated, will be affirmed. 

ORDER: The decision of the immigration judge is affirmed. 

FURTHER ORDER: The record is returned to the Office of 

the Immigration Judge. 

BEFORE THE BOARD 

(February 5, 1991) 

The Immigration and Naturalization Service has filed a motion to 

reconsider the Board of Immigration Appeals' decision dated September 10, 1990, in which we affirmed the immigration judge's decision. 

In a decision dated September 27, 1990, the Board denied the 

Service's. motion for a 30-day stay of the execution of the decision 

affirming the immigration judge. The motion to reconsider will now be 

denied_ 

In a memorandum dated June 14, 1990, the Board asked the Service 

for its opinion concerning the issue of whether an alien who commits a 

deportable offense after he has acquired temporary residence can "be 

found deportable or deported" without his temporary resident status 

being terminated pursuant to section 245A(b)(2)(B) of the Act. On July 

6, 1990, the Service responded to the Board's query as follows: "It is 

the Service position that a respondent in these circumstances must 

first have his temporary LPR status terminated pursuant to 8 C.F.R. 

Sec. 245a.2(u)." The Service did not indicate in its response that it had 

any disagreement with the immigration judge's decision. The Board 

subsequently entered the decision affirming the immigration judge's 

order which had terminated the respondent's deportation proceedings. 

In its motion to reconsider, the Service raises two arguments. It 

contends first that the Board's holding conflicts with the requirements 

of the Act regarding aliens who have been convicted of an "aggravated 

felony" as defined in the Anti-Drug Abuse Act of 1988, Pub. L. No. 

100-690, 102 Stat. 4181. The Service also contends that immigration 

judges lack jurisdiction to question a Service decision to commence 

deportation proceedings against an alien. 

We will not address the merits of the Service's arguments because 

no adequate explanation has been offered for its failure to raise these 

arguments earlier in the proceedings. Arguments for consideration on 

appeal should all be submitted at one time, rather than in piecemeal 

fashion. This is particularly true in the instant case, where the Board 

specifically solicited the Service's views concerning the issues presented. The Service was granted a reasonable period of time in which to 

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Interim Decision #3I38 

consider fully the implications of the issues and to develop its position 

on appeal. 

Moreover, we note that in its argument concerning the Act's 

"aggravated felony" provisions, the Service has cited Board decisions 

which were not designated as precedent decisions. The regulations 

provide that a motion to reconsider "shall be supported by such 

precedent decisions as are pertinent." 8 C.F.R. § 3.8(a) (1990). 

Decisions which the Board does not designate as precedents are not 

binding on the Service or the immigration judges in cases involving the 

same or similar issues. See 8 C.F.R. § 3.1(g) (1990). We therefore do 

not consider the Service's reliance on Board decisions which were not 

designated as precedent decisions to be a persuasive ground for 

reconsideration. We note too that the argument in the Service's 

motion, that an immigration judge has no authority to review a Service 

decision to commence proceedings against an alien, was initially raised 

by the general attorney in a trial brief. The Service abandoned this 

argument, however, when it submitted its previous appellate position, 

which appeared to endorse the decision of the immigration judge. 

Accordingly, because the arguments in the Service's motion were 

not raised when it submitted its position on appeal, and because the 

Service has not provided an adequate explanation for its failure to 

raise these arguments at an earlier stage of the proceedings, the motion 

to reconsider will be denied. 

ORDER: The motion to reconsider is denied. 

DISSENTING OPINION: James P. Morris, Board Member 

I respectfully dissent 

Our decision of September 10, 1990, was based upon the fact that 

the Immigration and Naturalization Service had removed its opposition to the decision of the immigration judge. Because the Service 

apparently intended to terminate, prior to the commencement of 

deportation proceedings, the temporary resident status of all aliens 

whose cases arise in the same procedural posture as the respondent's, 

we found no reason to disturb the immigration judge's decision. The 

Board's decision was reasonable under those circumstances. Nevertheless, I believe that the immigration judge's decision misconstrued the 

applicable regulation. The Service has now filed a motion to reconsider and has indicated its opposition to the construction of the regulation 

applied by the immigration judge. 

In its decision on the motion to reconsider the Board chooses to 

avoid the merits of the issue because the Service has not adequately 

explained why the arguments made by the Service in its motion were 

not raised earlier in the proceedings. The Board, therefore, has decided 

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to deal with the case on the basis of procedural failures by the Service. 

Yet, if these failures are conceded, they do not preclude the Board 

from addressing the issue before it, i.e., must the status of a lawful 

temporary resident be terminated before the initiation of deportation 

proceedings on grounds of deportability arising subsequent 'to the 

acquisition by the alien of such status? Since the Service has moved to 

reconsider and has now expressed its opposition to the construction 

given to the regulation by the immigration judge, we now have an 

opportunity to correct what I perceive to be error by the immigration 

judge. 

I would not rely on the arguments advanced by the Service in 

support of its motion to reconsider. Rather, I would construe the 

applicable regulation in a reasonable way, with the result that 

termination of lawful temporary resident status prior to the initiation 

of deportation proceedings would not be required in this case. 

The regulation, 8 C.F.R. § 245a.2(u)(4) (1990), provides as follows: 

Return to unlawful status after termination. 

Termination of the status of any alien previously adjusted to lawful temporary 

residence under section 245A(a) of the Act shall act to return such alien to the 

unlawful status held prior to the adjustment, and render him or her amenable to 

exclusion or deportation proceedings under section 236 or 242 of the Act, as 

appropriate_ 

Itis apparent from the language of the regulation that a person 

whose temporary status has been terminated returns to his former 

unlawful status and, of course, he or she is then amenable to exclusion 

or deportation proceedings on the basis of that unlawful status. The 

regulation does not say, however, that in the absence of a termination 

of temporary status, the alien is immune from deportation or exclusion 

proceedings. Such an intent would be a clear departure from the 

treatment given to lawful permanent residents who are deportable. I 

would require that any such intent be clearly manifest in the regulation 

and would not impose a requirement of termination on the basis of an 

inference that might be drawn from the provision that aliens whose 

temporary resident status has been terminated are subject to exclusion 

or deportation proceedings. 

The regulation says nothing about - an alien who commits a 

deportable offense while in lawful temporary resident status. The 

regulation does not require that such status be terminated in order to 

initiate deportation proceedings on the basis of a ground of deportation arising after the attainment of lawful temporary resident status. 

To impose such a requirement is to place a higher value on lawful 

temporary resident status than is accorded to the status of a lawful 

permanent resident. Section 246 of the Immigration and Nationality 

Act, 8 U.S.C. § 1256 (1988), provides for the rescission of the 

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adjustment of status of an alien who has been granted adjustment of 

status under section 245 of the Act, 8 U.S.C. § 1255 (1988). It is well 

established that the Service may use exclusion or deportation proceedings against a lawful permanent resident whether the alien gained 

resident status through entry on an immigrant visa or through 

adjustment of status. There is no prerequisite of revocation of the 

status of an alien whose status was adjusted to that of lawful 

permanent resident. Monet v. INS, 791 F.2d 752 (9th Cir. 1986); 

Ubiera v. Bell, 463 F. Supp. 181 (S.D.N.Y.), affd without opinion, 594 

F.2d 853 (2d Cir. 1978); Matter of Belenzo, 17 I&N Dec. 374 (A.G. 

1981); Matter of S-, 9 I&N Dec. 548 (A.G. 1962). 

As a matter of logic and policy, it makes no sense to provide more 

protection from deportation to a temporary resident than to a lawful 

permanent resident. The plain language of the regulation does not 

require that result, nor does any language of the statute. Therefore, the 

Board should take this opportunity to correct the erroneous decision of 

the immigration judge in this case. It should not be necessary for the 

Service to revise the regulation in order to have a reasonable 

interpretation of it. 

I would grant the motion to reconsider the Board's decision of 

September 10, 1990, and, upon reconsideration, reverse the order of 

the immigration judge. 

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