Interim Decision #3214 

MATTER OF SOSA-HERNANDEZ 

In Deportation Proceedings 

A-34652686 

Decided by Board November 12, 1993 

(1) A waiver of deportability under section 241(1) of the Immigration and Nationality 

Act, 8 U.S.C. § 1251(f) (1988), waives not only the alien's deportability but also the 

underlying fraud or misrepresentation and renders the waiver recipient a lawful 

permanent resident from the time of his initial entry. 

(2) The beneficiary of a waiver of deportability under section 241(f of the Act may use 

the time accrued since the initial granting of lawful permanent residence to establish 

eligibility for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988). 

CHARGE: 

Order: Act of 1952—Sec. 241(2)(1) [8 U.S.C. § 1251(a)(1)]—Excludable at entry under 

section. 212(a)(20) [8 U.S.C. § 1182(a)(20)I—No valid immigrant visa 

Sec. 241(2)(11) [8 U.S.C. § 1251(a)(11)1—Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Lisa S. Brodyaga, Esquire Kenneth M. Muir 

402 East Harrison, Second Floor General Attorney 

Harlingen, Texas 78550 

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

In a decision dated July 19, 1989, an immigration judge found the 

respondent deportable as charged, granted his request for a waiver of 

deportability under section 241(1) of the Immigration and Nationality 

Act, 8 U.S.C. § 1251(f) (1988), determined him to be statutorily 

ineligible for a waiver of inadmissibility under section 212(c) of the 

Act, 8 U.S.C. § 1182(c) (1988), and for voluntary departure under 

section 244(e) of the Act, 8 U.S.C. § 1254(e) (1988), and ordered him 

deported to Mexico. The respondent has appealed from the denial of 

his request for a waiver of inadmissibility under section 212(c) of the 

Act. The appeal will be sustained. The respondent's request for oral 

argument before the Board is denied. See 8 C.F.R. § 3.1(e) (1993). 

The respondent, a 48-year-old native and citizen of Mexico, entered 

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the United States as a lawful permanent resident on May 13, 1974. On 

August 31, 1987, an Order to Show Cause and Notice of Hearing 

(Form I-221) was issued, charging the respondent with deportability 

under section 241(a)(11) of the Act as an alien convicted of a 

controlled substance violation based upon his January 30, 1987, 

conviction for possession with intent to distribute approximately 43 

kilograms of marijuana. The respondent's conviction record indicates 

that he was sentenced to 1 year in prison and 3 years of special parole 

for this offense. The respondent, through counsel, conceded deportability under section 241(a)(11) of the Act, and the immigration judge 

also found the respondent deportable under section 241(a)(1) of the 

Act, as an alien who was excludable at the time of entry under section 

212(a)(20), as an immigrant not in possession of a valid unexpired 

immigrant visa. The respondent has not challenged his deportability 

on appeal, and we find that the respondent's deportability under 

sections 241(a)(1) and (11) of the Act has been established by clear, 

unequivocal, and convincing evidence. See Woodby v. INS, 385 U.S. 

276 (1966); 8 C.F.R.§ 242.14(a) (1993). 

The respondent applied for a waiver of deportability under section 

241(1) of the Act and a waiver of inadmissibility under section 212(c) 

of the Act. In his decision of July 19, 1989, the immigration judge 

determined that the respondent is statutorily eligible for a =don 

241(f) waiver and merits such relief in the exercise of discretion. The 

immigration judge noted that the grant of a section 241(f) waiver 

simply waives the respondent's deportability under section 241(a)(1) 

as an alien excludable at the time of entry under section 212(a)(20) and 

that the respondent still remains subject to deportation under section 

241(a)(11) of the Act as an alien convicted of a controlled substance 

violation. The immigration judge determined that the respondent is 

statutorily ineligible for a section 212(c) waiver because a section 

241(f) waiver does not operate nunc pro tune to make the respondent a 

lawful permanent resident as of the date of his initial unlawful entry 

into the United States. The immigration judge noted that it is well 

settled that an immigrant who is found to be excludable at entry has 

not been lawfully admitted to the United States but remains in an 

unlawful status subject to deportation until his immigrant status is 

legalized. See Fedorenko v. United States, 449 U.S. 490 (1981); Matter 

of Longstaff, 716 KU 1439 (5th Cir. 1983), cert. denied, 467 U.S. 

1219 (1984). The immigration judge found that the case which conies 

closest to answering• the question as to the retroactivity of section 

241(1) is that of Yik Shuen Eng v. INS, 464 F.2d 1265 (2d Cir. 1972), 

in which the court held that section 241(1) does not retroactively 

validate an unlawful entry. The immigration judge concluded that 

because the respondent is a lawful permanent resident beginning only 

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as of the date of the grant of section 241(1) relief, the respondent does 

not have the requisite 7 consecutive years of "lawful" unrelinquished 

domicile required for section 212(c) relief. However, the immigration 

judge noted that if he had found the respondent statutorily eligible for 

section 212(c) relief, he would find that the respondent merits such 

relief in the exercise of discretion for the same reasons he granted him 

discretionary relief under section 241(f). 

The Service has not appealed the immigration judge's grant of a 

section 241(f) waiver of deportability to the respondent. Accordingly, 

the only issue on appeal is whether the immigration judge correctly 

denied the respondent's application for section 212(c) relief. The 

respondent asserts on appeal that the immigration judge erred in 

finding him statutorily ineligible for a section 212(c) waiver. He 

contends that a waiver of deportability under section 241(f) of the Act 

waives not only the exclusion ground but also waives the underlying 

fraud itself, and that the overall effect is to render the waiver recipient 

a lawful permanent resident from the time of the initial unlawful entry, 

which in the instant case is May 13, 1974. The respondent states that 

because he maintained a lawful unrelinquished domicile in the United 

States for more than 7 years, he is eligible for section 212(c) relief and 

merits such relief in the exercise of discretion. The Service asserts, 

inter alia, that the decision of the immigration judge is correct. 

Section 212(c) of the 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. In light of our 

decision in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), a lawful 

permanent resident is prima facie eligible for relief from deportation 

under section 212(c), even though he has not proceeded abroad 

subsequent to the acts which rendered him deportable. See Francis v. 

INS, 532 F.2d 268 (2d Cir. 1976). The respondent contends that he is 

eligible for a section 212(c) waiver because the immigration judge's 

grant of a section 241(1) waiver retroactively validated the lawful 

permanent resident status accorded him in May 1974 and, thus, he has 

acquired the 7 consecutive years of lawful unrelinquished domicile 

required for section 212(c) relief. 

We agree with the respondent that a waiver of deportability under 

section 241(f) of the Act waives not only the exclusion ground but also 

waives the underlying fraud and renders the waiver recipient a lawful 

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permanent resident from the time of his initial entry. Section 241(f) of 

the Act, as applicable to the respondent,' provides as follows: 

(IXA) The provisions of this section relating to the deportation of aliens within the 

United States on the ground that they were excludable at the time of entry as aliens 

who have sought to procure or have procured visas or other documentation, Or entry 

into the United States, by fraud or misrepresentation, whether willful or innocent, 

may, in the discretion of the Attorney General, be waived for any alien (other than an 

alien described in subsection (a)(19)) who- 

(i) is the spouse, parent, or child of a citizen of the United States or of an alien 

lawfully admitted to the United States for permanent residence; and 

(ii) was in possession of an immigrant visa or equivalent document and was 

otherwise admissible to the United States at the time of such entry except for those 

grounds of inadmissibility specified under paragraphs (14), (20), and (21) of section 

212(a) which were a direct result of that ftaud or misrepresentation. 

(B) A waiver of deportation for fraud or misrepresentation granted under 

subparagraph (A) shall also operate to waive deportation based on the grounds of 

inadmissibility at entry described under subparagraph (A)(ii) directly resulting from 

such fraud or misrepresentation. 

As pointed out by the respondent, the effect of a section 241(f) 

waiver is not only to waive deportability but also to waive the 

underlying fraud or misrepresentation. See Reid v. INS, 420 U.S. 619, 

630 (1975); see also Cacho v. INS, 547 F.2d 1057, 1061 (9th Cir. 1976). 

In Matter orManchisi, 12 I&N Dcc. 132 (BIA 1967), we stated that by 

holding that a respondent was "otherwise admissible" at the time of 

his entry and that his fraud in gaining such entry has been excused 

under section 241(f), 

that entry has been cleared of illegality, and respondent must still be considered to be 

an alien who has been lawfully admitted for permanent residence. That this was the 

status intended to be accorded the alien given the benefits of section 241(f) seems to 

us obvious from the provisions of its counterpart, section 212(i), relating to aliens 

still abroad, who may be admitted to the United StarPi for permanent residence if 

they can meet the requirements of the waiver provision. 

Id at 137 (emphasis added) (footnote omitted)? The Immigration and 

'The provisions of section 241(f) were repealed by section 602(b) of the Immigration 

Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5081 (effective Nov. 29, 1990). 

Similar provisions were recodified at section 241(a)(t)(H) of the Act, 8 U.S.C. 

§ 1251(a)(1)(11) (Supp. II 1990). The new provisions do not apply, however, to 

deportation proceedings for which notice was provided to the alien before March 1, 

1991. 

2At the time of the Board's decision in Matter of Manchisi, supra, section 241(f) of the 

Act provided a mandatory waiver for aliens deportable on the ground that they were 

excludable at the time of entry as aliens who have sought to procure, or have procured, 

visas or other documentation or entry into the United States by fraud or misrepresentation if they were otherwise admissible at the time of entry and were the spouse, parent, 

or child of a United States citizen or a lawful permanent resident. Section 241(f) was 

amended in 1981 to replace the mandatory waiver with a discretionary waiver in the 

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Naturalization Service Operations Instructions 318.5 states that an 

alien who qualifies as a nondeportable alien under the authority of 

section 241(f) "is thereby cleared of the illegality which attached to the 

visa and to the entry, and is considered as an alien lawfully admitted 

for permanent residende." 

The immigration judge's reliance on Yik Shuen Eng v. INS, supra, 

for the proposition that section 241(f) does not retroactively validate 

the alien's original illegal entry is misplaced. In that case, an alien 

entered the United States under the false claim that he was the son of a 

United States citizen. Pursuant to the "Chinese Confession Program," 

an official program designed to encourage Chinese who had entered 

under fraudulent claims of citizenship to admit their alienage, apply 

for adjustment of status, and thus avoid deportation, the alien 

confessed his true parentage and applied for adjustment of status. His 

application was approved on January 20, 1970, and this became the 

date of his lawful permanent residence pursuant to the statute. The 

alien then applied for naturalization in January 1971, claiming that 

because section 241(f) validated his original unlawful entry, he had 

acquired the 5 years of lawful permanent residence necessary for 

naturalization. The court found that section 241(1) is inapplicable, as 

this section simply acts as a bar in some instances to the deportation of 

aliens and has nothing to do with naturalization. The court noted that 

the alien was not in deportation proceedings and that his lawful 

permanent residence was not threatened. The court did not address the 

issue of whether a grant of a section 241(f) waiver in a deportation 

proceeding retroactively validates an alien's initial unlawful entry. 

The Service asserts that the respondent is seeking to "bootstrap" 

eligibility from one waiver to another, which was prohibited in Matter 

of Roman, 19 I&N Dec. 855 (BIA 1988). We disagree. In Matter of 

Roman, an alien sought a section 241(f) waiver to waive her 

deportability under section 241(a)(1) of the Act as an alien excludable 

under section 212(a)(20), and she sought nunc pro tune permission to 

reapply for admission in order to waive her deportability under section 

241(a)(1) as an alien excludable at entry under section 212(a)(17) for 

having no permission to reapply after deportation. We found that the 

alien was ineligible for section 241(f) relief because she was not 

"otherwise admissible to the United States at the time of entry" due to 

case of such an alien who possessed an immigrant visa or equivalent document at the 

time of entry and who was otherwise admissible except for the grounds specified in 

sections 212(2)(14), (20), and (21) of the Act. See Immigration and Nationality Act 

Amendments of 1981, Pub. L. No. 97-116, § 8, 95 Stat. 1611, 1616 (effective Dec. 29, 

1981). These changes do not affect our analysis regarding the retroactivity of a grant of 

section 241(f) relief. 

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her inadmissibility under section 212(a)(17) of the Act. Furthermore, 

we pointed out that nunc pro tune permission to reapply for admission 

may be granted retroactively by the Board or an immigration judge 

only where the only ground of deportability or inadmissibility would 

thereby be eliminated. Because the alien was excludable at entry under 

section 212(a)(20) for having no valid immigrant visa and thus 

remained deportable, her application for retroactive permission to 

reapply for admission after deportation was denied. We found that the 

alien was attempting to "bootstrap" eligibility from one waiver to the 

other because she was not separately eligible for either. 

In the instant case, the respondent is separately eligible for a section 

241(1) waiver to waive his deportability under section 241(a)(1) of the 

Act. The respondent is the spouse of a lawful permanent resident and 

the parent of a United States citizen and he was in possession of an 

immigrant visa at the time of entry. Unlike the alien in Matter of 

Roman, supra, the respondent was "otherwise admissible to the 

United States at the time of such entry" except for those grounds of 

inadmissibility specified under sections 212(a)(14), (20), and (21) of 

the Act which were a direct result of that fraud or misrepresentation. 

The respondent's controlled substance offense occurred more than a 

decade after the respondent's admission to the United States. Furthermore, the Service did not appeal the immigration judge's grant of the 

respondent's request for a section 241(f) waiver. 

We have determined that the immigration judge's grant of a section 

241(f) waiver to the respondent retroactively validated the lawful 

permanent resident status accorded the respondent in May 1974. 

Accordingly, the respondent has acquired the 7 consecutive years of 

lawful unrelinquished domicile required for section 212(c) relief and is 

statutorily eligible for such relief. Section 212(c) does not provide an 

indiscriminate waiver for all who demonstrate statutory eligibility for 

such relief, but the Attorney General or her delegate is required to 

determine as a matter of discretion whether an alien merits the relief 

sought. Matter ofMarin, 16 I&N Dec. 581, 582-83 (BIA 1978). In the 

instant case, the immigration judge noted that he would grant the 

respondent section 212(c) relief in the exercise of discretion but for his 

statutory ineligibility. The Service neither appealed from the immigration judge's discretionary grant of section 241(1) relief nor challenged 

on appeal the immigration judge's statement that the respondent 

would merit a grant of section 212(c) relief if statutorily eligible. Under 

the circumstances, we determine that a grant of section 212(c) relief in 

the exercise of discretion is warranted. Accordingly, the appeal will be 

sustained, and the deportation proceedings will be terminated. 

ORDER: The appeal is sustained, and the deportation proceedings are terminated. 

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