Interim Decision #2532 

MATTER OF SILVA 

In Deportation Proceedings 

A-8745827 

Decided by Board September 10, 1976 

(1) Respondent was convicted of possession of marihuana with intent to distribute in 

violation of 21 U.S.C. 841(a)(1); admitted to the factual allegations contained in the 

order to show cause and conceded deportability under section 241(a)(11) of the Immigration and Nationality Act. 

(2) Under the provisions of section 212(c) of the Act (8 U.S.C. 1182(c)), a waiver of the 

ground of inadmissibility may be granted to a permanent resident alien in a deportation 

proceeding regardless of whether he departs the United States following the acts which 

render him deportable. The constitutional requirements of due process and equal 

protection of the laws mandate that no distinction shall be made between permanent 

resident aliens who proeed abroad and nnndeparting permanent resident aliens who 

apply for the benefits of section 212(e) of the Act. SeeFrancis v. INS 532 F .2d 268 (2 Cir. 

1976). 

(3) Permanent resident aliens similarly situated shall be treated equally with respect to 

Limit applications for discretionary relief under ocetion 212(e) of the Aet. 

CHARGE: 

Order: Act of 1952--Section 241(a)(11) [8 U. S. C. 1251(aX11)1—Convicted for violation of 

a law relating to marihuana 

ON BEHALF OF RESPONDENT: Laurier B. McDonald, Esquire 

Pena, McDonald, Prestia and Zipp 

P. 0. Box 54 

Edinburg, Texas 78539 

On July 8, 1974, the respondent NAMS convicted in the United States 

District Court for the Southern District of Texas, Brownsville Division, 

of possession of marihuana with the intent to distribute, in violation of 21 

U.S.C. 841(a)(1). He was sentenced to imprisonment for a period of five 

years, a special parole term of two years, and a $500 fine. He was 

ordered to serve six months of the imprisonment and the remainder of 

the sentence was suspended. Respondent was also placed on probation 

for five years. 

At this hearing, respondent admitted to the factual allegations contained in the Order to Show Cause and conceded deportability under 

section 241(a)(11) of the Act. The immigration judge found the respondent deportable and ordered his deportation to Mexico. 

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Interim Decision #2532 

On appeal, counsel contends that the respondent is eligible for advance waiver of inadmissibility under the provisions of section 212(e) of 

the Act. The record contains respondent's Application for Advance 

Permission to Return to Unrelinquished Domicile (Form I-191) filed 

March 13, 1975. 

We find that respondent is a native and citizen of Mexico who has been 

a lawful permanent resident since September 17, 1954. His deportability resulted from a conviction of a marihuana violation. The record shows 

no evidence that he departed the United States following his marihuana 

conviction. 

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 seven consecutive years, may be admitted in 

the discretion of the Attorney General without regard to certain 

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

The grounds specified include an alien convicted of a marihuana violation 

as set forth in section 212(a)(23) of the Act. 

The issues presented by the case are whether the respondent is 

statutorily eligible for discretionary relief under section 212(c) of the 

Act in a deportation proceeding, and whether respondent's case merits a 

favorable exercise of discretion. 

In a decision dated May 29, 1975, the immigration judge found the 

respondent deportable as charged, denied his application for advance 

permission to return to an unrelinquished domicile, and ordered him 

deported. The respondent has appealed from that decision. The appeal 

will be sustained. 

The respondent is a 34-year-old married male alien, a native and 

citizen of Mexico. He was admitted to the United States as a permanent 

resident alien on September 17, 1954. 

Under section 241(a)(11) of the Immigration and Nationality Act, an 

alien in the United States is deportable if, at any time after entry, he 

has been convicted of a violation of, or a conspiracy to violate, any law or 

regulation relating to the illicit possession of or traffic in narcotic drugs 

or marijuana. 

We have consistently held that a waiver of the ground of inadmissibility under section 212(c) of the Act may be granted nuns pro tunc in 

deportation proceedings, Matter of Tanori, Interim Decision 2467 (BIA 

1976); Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter 

of C---A—, 7 I. & N. Dec. 274 (BIA 1956); Matter of S—, 6 I. & N. Dec. 

392 (BIA 1954; A.G. 1955); Matter of F—, 6 L & N. Dec. 537 (BIA 1955); 

Mutter of M— , 5 I. & N. Dec. 598 (BIA 1954); Matter of T, 1 I. gz. N_ 

Dec. 1 (BIA, A.G. 1940). (Decided under predecessor statute.) In these 

eases we have interpreted section 212(c) of the Act to mean that a 

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Interim Decision #2532 

waiver of the ground of inadmissibility may be granted in a deportation 

proceeding when, at the time of the alien's last entry, he was inadmissible because of the same facts which form the basis of his deportability, 

Matter of G—A—, supra; Matter of 8—, supra. 

it has been our view that a permanent resident alien is not statutorily 

eligible for relief from deportation pursuant to section 212(c) of the Act 

unless (1) his deportability resulted from a conviction which occurred 

prior to his departure from the United States; (2) his departure from the 

United States was voluntary and temporary and not under an order of 

deportation; and (3) that at the time of his last entry he was returning to 

an unrelinquished domicile of seven years. 

In Matter of Smith, 11 I. & N. Dec. 325 (BIA 1965), we held that an 

alien's application for a section 212(c) waiver can be considered (by an 

immigration judge) in conjunction with an application for adjustment of 

status under section 245 of the Act in deportation proceedings. In 

Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971), affirmed 466 

F.2d 1198 (9 Cir. 1972), we held that section 212(c) relief was not 

available to a native of the Western Hemisphere because he was ineligible for adjustment, of status under section 245 of the Act. Under the 

facts of that case, the respondent, a native and citizen of Mexico who 

was lawfully admitted as a permanent resident alien in 1954, was found 

deportable on the basis of a 1939 narcotics conviction. The evidence 

revealed that he had not departed the United States since his conviction. In deciding that the respondent did not qualify for a waiver of the 

ground of inadmissibility under section 212(c) of the Act, we pointed out 

that: 

The requirement that an alien must have temporarily proceeded abroad voluntarily and 

not under an order of deportation makes it clear that Congress curtailed our authority 

fur the advance exercise of section 212(c) relief in a deportation proceeding. Where a 

section 212(c) application is not coupled with an application for adjustment of status 

under section 245 of the Act, we have no basis for avoiding the statutory requirement 

that an alien lawfully admitted for permanent residence must be returning to resume a 

lawful domicile of seven consecutive years following a temporary, voluntary departure 

not under an order of deportation. 

In Matter of Francis, unreported, file A-12081215 (BIA August 15, 

1974), the facts related to a 54-year-old male respondent, a native and 

citizen of Jamaica, who was admitted to the United States as a permanent resident alien on September 8, 1961. Following a deportation 

hearing, the immigration judge found the respondent deportable as 

charged by virtue of a conviction on October 20, 1971, for criminal 

possession of dangerous drugs in the sixth degree (marihuana). The 

immigration judge also found that the respondent had not been absent 

from the United States since his original entry. In that case we agreed 

with the immigration judge that the respondent was deportable within 

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interim ireeision #Zb32 

the meaning of section 241(a)(11) of the Act and that deportability had 

been established by clear, convincing and unequivocal evidence. We 

further agreed with the immigration judge that deportation proceedings, rather than exclusion proceedings, were properly instituted, and 

that the respondent was not eligible to apply for relief under section 

212(c) of the Immigration and Nationality Act. 

On appeal to the United States Court of Appeals for the Second 

Circuit in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), the court held that 

our interpretation of section 212(c) of the Act as applied to the respondent was unconstitutional; and that the respondent, a permanent resident alien who had not departed the United States following his 

marihuana conviction, was entitled to apply to, the Attorney General for 

discretionary relief under section 212(e) of the Act.' The court was of 

the opinion 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 so holding, the court in the Francis caae pointed out that the 

enforcement of immigration laws and policies relating to such laws must 

respect the procedural safeguards of due process under the Fifth 

Amendment of the Constitution of the United States. The court_also 

expressed the well-established view that the equal protection of the 

laws clause of the Fourteenth Amendment of the Constitution of the 

United States applies to aliens as well as citizens. In its application of 

the minimum scrutiny test 2to this case, the court was of the opinion 

that: 

Fundamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner. We do 

not dispute the power of Congress to create different standards of admission and 

deportation for different groups of aliens. However, once those choices are made, 

individuals within a particular group may not be subjected to disparate treatment on 

criteria -wholly unrelated to any legitimate governmental interest ... . 

We note that the Service has informed us in a memorandum dated 

August 25, 1976 that, on July 22, 1976, the Solicitor General decided 

The court granted respondent's petition and remanded the 'Case to us "so that the 

Attorney General's discretion under section 212(c) may be exercised." 

Under the minimal scrutiny test, distinctions between different classes of persons 

must be reasonable, not arbitrary, and must rest upon some ground of difference having a 

fair and substantial relation to the object of the legislation, so that all persons similarly 

circumstanced shall be treated alike. Stanton v. Stanton, 421 U.S. 7, 14, 95 S. Ct. 1373, 

1377, 43 L.Ed. 2d (388.694 (1975): Rouster Guano Co. v. Virginia. 253 U.S. 412. 415, 40 S. 

Ct. 560, 561, 64 L.Ed. 989, 990 (1920). 

29 
JJeelblUll 11-4...1J4 

against seeking certiorari in Francis v. INS. In view of the ruling of 

the Court of Appeals for the Second Circuit in Francis v. INS, we withdraw from the contrary position expressed by this Board in Matter of 

Francis, supra, and Matter of Arias-Uribe, supra. We conclude that, 

under the provisions of section 212(c) of the Act, a waiver of the ground 

of inadmissibility may be granted 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. In light of 

the constitutional requirements of due process and equal protection of 

the law, it is our position that no distinction shall be made between 

permanent resident aliens who temporarily proceed abroad and nondeparting permanent resident aliens. We further conclude that permanent resident aliens similarly situated shall be treated equally with 

respect to their applications for discretionary relief under section 212(c) 

of the Act. Accordingly, we shall sustain the appeal and remand this 

case to the immigration judge for further proceedings consistent with 

the above opinion. 

ORDER: The appeal is sustained and the record is remanded to the 

immigration judge for further proceedings consistent with the foregoing 

opinion. 

Irving A. Appleman, Member, Concurring (October 5, 1976): 

For the reasons set forth below L concur in the majority decision.' 

However, that opinion, following closely as it does the decision in 

Francis v. INS, 532 F.2d 268 (2 Ch.. 1976), in my view needs clarification and amplification. 

By its express language, section 212(c) is concerned with aliens "who 

are returning to a lawful unrelinquished domicile." Such aliens "may be 

admitted" in the discretion of the Attorney General if they meet certain 

criteria. Like the predecessor seventh proviso to Section 3 of the Immigration Act of 1917, 39 Stat. 874, section 212(c) was inserted in the 

Immigration and Nationality Act to take care of the lawful permanent 

resident who left the United States temporarily and who, but for this 

waiver provision, could not have been readznitted. 2 

In Matter of G--A—, 7 I. & N. Dec. 274 (BLA. 1956), a deportation 

proceeding, the Board examined the facts existing as of the time the 

alien returned to the country, and found that if he had applied for 

section 212(c) relief at that time, a waiver would have been granted him. 

The majority decision was inadvertently released while this separate opinion was 

being prepared and hence bears a different date. 

2 Other provisions now exist permitting waivers of some of the grounds of inadmissibility in section 212; see, for example, section 212(g), (h), and (i), added by the Act of 

September 26, 1961, 75 Stat. 654, 655. These waivers did not exist at the time the 

Immigration and Nationality Act was enacted in 1952. 

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Interim Decision #2532 

Relying upon the words "may be admitted" in section 212(c) and the 

sanction given by the Attorney General to the grant of the relief in 

Matter of L—, 1 I. & N. Dec. 1 (BIA 1940; A.G. 1940), the Board 

granted the relief nunc pro tune. The waiver having been granted, the 

alien was immunized from deportation for the same crime. Id., at 275. 

Similarly, in Matter of Smith, 11 I. & N. Dec. 325, another deportation proceeding, the alien's application for adjustment of status under 

section 245 was accompanied by a request for a waiver under section 

212(c), of a ground of inadmissibility which would have made the alien 

ineligible for a visa and hence not qualified for section 245 adjustment. A 

section 245 adjustment of status is the Immigration and Nationality Act 

equivalent of, and successor to, preexamination. Under the preexamination procedure the alien departed from the United States, and, by 

prearrangement, went to a friendly consulate, obtained his visa and 

returned to the United States, often the same day. Section 245 requires 

the alien to show both visa eligibility and availability, but, physical 

departure from the country has been eliminated. No visa actually issues, but a visa number is allocated and utilized, 8 C.F.R. 245.5. In 

Matter of Smith, supra, the waiver under section 212(e) removed a bar 

to this fictional issuance of a visa and thus allowed the alien the benefits 

of section 245. In coupling section 212(c) relief with a 245 adjustment in 

Matter of Smith, the Board, in effect, was doing contemporaneously as 

part of the admission process, what it had done retroactively in Matter 

of G—A—, supra, In both Matter of G—A—, supra, and Matter of 

Smith, supra, notwithstanding that the application was made during a 

deportation proceeding, relief under section 212(c) derived at least 

colorable authority from the words "may be admitted" in the statute. 

However, in Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971), 

sustained Arias-Uribe v. INS, 466 F.2d 1198 (9 Cir. 1972), the Board 

refused to grant a section 212(c) waiver as outright relief in a deportation proceeding where it could not be allied, by any chain of reasoning, 

to the admission process. The Board had attempted to alleviate the lack 

of equal treatment evident in the statute. It could go no further without 

flouting the statute. 3No further "interpretation" was possible. 

In Francis v. INS, supra, and in the instant case, we come full circle. 

Section 212(c) has now bccn judicially rewritten and is a full deportation 

relief, along with suspension of deportation (section 244), adjustment of 

status (section 245), and registry (section 249). The lawful permanent 

resident, with seven years of domicile, now has a separate and additional form of relief available to him in deportation proceedings. The 

provision respecting admission after temporary departure abroad no 

a The Board is a surrogate of the Attorney General, the executive official charged with 

the administration of the Immigration and Nationality Act. It has no power to declare 

legislation unconstitutional. 

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Interim Decision #2532 

longer seems relevant. This may be desirable, but it is not what Congress wrote, nor what it intended. 

Unquestionably, as the court pointed out in Francis v. INS, supra, in 

section 212(c) the Congress created, perhaps inadvertently, an avenue 

of relief under the statute for the permanent resident alien who took a 

temporary trip abroad after a ground of deportability arose, whereas 

the same alien could not get that relief if he remained here. Two classes 

of aliens thus existed, identical in every respect, except for the fact that 

members of one class got relief, and the others did not—a distinction, in 

the words of the court, not rationally related to any legitimate purpose 

of the statute. 

At the same time, one cannot help but be puzzled by that portion of 

the Francis decision which lays this deficiency in the statute at the feet 

of the Board of Immigration Appeals. The fact is that if there had been 

no Board interpretations whatsoever, the lack of "equal treatment," 

noted in Francis, would still have existed. The long-term resident who 

left the United States, and who received section 212(e) relief when 

applying for readmission, was thereafter not deportable on the waived 

ground. To hold otherwise would seem to render the waiver meaningless. Yet the same alien, if unable to leave the United States for a visit 

abroad, could be deportable. If this discrimination is irrational and 

unconstitutional, it is so, not because of a Board interpretation, but 

because of the language of the statute itself. The Francis opinion iiuLeb 

the "facial" limitations of section 212(c) and agrees that the reading 

given the statute in Arias-Uribe, supra, was consistent with the language of section 212(c). While the court did not attempt to find the 

statute unconstitutional, there is at least a possibility that this is the 

underlying, if unexpressed, basis for the Francis decision. 4 

The Solicitor General has decided against seeking certiorari in the 

Francis case. The Immigration and Naturalization Service has indicated that it will apply nationwide the rationale of Francis in cases 

Challenges to substantive due process under the immigration laws (including those 

going to the categories of aliens to whom relief may be granted) have been uniformly 

=ejected by the courts. See e.g., Dunn v. INS, 499 F.2d 856 (9 Cir. 1974; Cert. denied 419 

"U.S. 1106). The power to control immigration is inherent in national sovereignty and 

Thence vested in the legislature not the judiciary. See Hariaiades v. Shaughnessy, 342 

-U.S. 580 (1952); Fang Yue Ting v. United States, 149 U.S. 698 (1893). Francis purports to 

zest on a violation of procedural due process. Here the courts readily exercise authority 

since the challenge is to the manner in which the law is applied rather than to the law 

itself. Accordingly, the Francis decision, by invalidating a Board "interpretation" of the 

statute, on its face does not offend the precedents. It is, of course, entirely speculative 

-whether a possible limitation on the courts authority to invalidate the statute played any 

part in the direction taken by the decision. 

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Interim Decision #2532 

coming before it. Under the circumstances, I concur with the remand in 

this case to allow the alien the same opportunity accorded others by the 

Service, to apply for the relief. 

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