Interim Decision #3236 

MATTER OF DIn Deportation Proceedings 

A-24312198 

Decided by Board November 22, 1994 

Evidence of general conditions in an alien's homeland may be weighed as a factor in 

evaluating an application under section 212(c) of the Immigration and Nationality Act, 

8 U.S.C. § 1 1 82(c) (Supp. V 1993), but since Congress has provided asylum and 

withholding of deportation under sections 208 and 243(h) of the Act, 8 U.S.0 §§ 1 158 

and 1253(h) (1 988 & Supp. V 1993), as the appropriate avenues for requesting relief 

from deportation on the basis of a fear of persecution, allegations and evidence 

regarding a well-founded fear or clear probability of persecution have no place in a 

section 212(c) applicadon or adjudication. 

CHARGE: 

Order: Act of 1 952—Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)1—Convicted of aggravated felony 

Sec. 241(aX11) [8 U.S.C. § 1251(aX11)i—Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Charles Parker, Jr. 

District Counsel 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes, 

Alternate Board Member 

In a decision dated September 17, 1993, an immigration judge 

found the respondent deportable as an alien who has been convicted of 

a controlled substance violation and an aggravated felony under 

sections 241(a)(11) and 241(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(11) and 1251(a)(4)(B) (1988). 1He also 

denied the respondent's applications for a waiver of inadmissibility 

I These sections of the Act have been revised and redesignated as sections 

241(aX2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1251(a)(2)(A)(iii) and (B)(i) (Supp. V 

1993), by section 602(a) of the Immigration Act of 1990, Pub L No. 101-649, 104 Stat. 

4978, 5080, but that amendment does, not apply to deportation proceedings for which 

notice has been provided to the alien before March 1, 1991. See section 602(d) of the 

Immigration Act of 1990, 104 Stat. at 5082. 

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Interim Decision #3236 

under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. V 1993), 

and for asylum and withholding of deportation under sections 208 and 

243(h) of the Act, 8 U.S.C. §§ 1158 and 1253(h) (1988 & Supp. V 

1993). The immigration judge ordered the respondent deported to his 

native Cuba. The respondent has appealed. The appeal will be 

dismissed. 

The respondent is a 47-year-old male native and citizen of Cuba. He 

canto to the shores of the United States during the Marie! boatlift of 

1980. On or about May 3, 1980, he was apparently placed on 

immigration parole and was allowed to remain physically present in 

this country.? On August 2, 1982, his status was adjusted to that of a 

lawful permanent resident of the United States, through issuance of an 

immigrant visa based on a visa petition filed by his father, a United 

States citizen. The respondent has two children residing in Cuba and 

two sisters who are lawful permanent residents of the United States. 

On March 30, 1987, the respondent was convicted in the New 

Jersey Superior Court, Hudson County, New Jersey, of possession of a 

controlled dangerous substance, to wit, cocaine, in violation of section 

2C-35-10a(1) of the New Jersey Statutes_ He was sentenced to 4 years' 

probation. On October 23, 1989, the respondent was convicted in the 

same court of another commission of the same offense, and in 

addition, of possession of a controlled dangerous substance (cocaine) 

with intent to distribute, in violation of sections 2C-35-5a(1) and -

5b(1) of the New Jersey Statutes. He pled not guilty but was found 

guilty after a jury trial. He was sentenced to 15 years in prison, 

including 5 years without eligibility for parole. The respondent was 

incarcerated on December 22, 1989, and has now served more than 4 

years of his sentence. 

On November 27, 1990, the Immigration and Naturalization 

Service issued the respondent an Order to Show Cause and Notice of 

Hearing (Form 1-221), charging him with deportability as an alien 

convicted of a controlled substance violation and an aggravated felony. 

The respondent appeared before the immigration judge and denied 

that he was properly convicted as alleged. The respondent's denial 

arose only, however, from his contention that his conviction had been 

unfair. He did not actually maintain that he had not been convicted. 

The immigration judge noted the respondent's admissions, observed 

that the Service had documented his convictions, and properly found 

him deportable as charged in spite of his protestations of innocence. 

2The Order to Show ranse and Notice of Hearing (Form 1-221) alleges inaccurately 

that the respondent entered as a refugee. As the immigration judge observed, this error 

regarding the respondent's status upon arrival does not affect his deportability as 

charged. 

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Interim Decision #3236 

Matter of Danesh, 19 I&N Dec. 669 (BIA 1988) (observing that for 

purposes of deportability, the immigration judge cannot go behind the 

record of conviction to redetermine the alien's guilt or innocence); 

Matter ofKhalik, 17 I&N Dec- 518 (BIA 1980) (same). We affirm that 

the facts underlying the respondent's deportability were established by 

evidence that was clear, unequivocal, and convincing. Woodby v. INS, 

385 U.S. 276 (1966). 3 

The respondent filed an application for asylum and withholding of 

deportation, claiming that he was active in opposing the regime of 

Fidel Castro and that if returned to Cuba he would be killed. However, 

the immigration judge pretennitted the respondent's asylum and 

withholding of deportation requests without comment. While a brief 

statement of the reason for this pretermission may have been 

preferable, the immigration judge's conclusion was altogether correct. 

The respondent is ineligible for asylum and withholding of deportation 

because he has been convicted of an aggravated felony. See sections 

208(d) and 243(h)(2) of the Act. The immigration judge also denied 

the respondent's application for relief under section 212(c) of the Act. 

On appeal, the respondent does not contest the immigration judge's 

finding that he was ineligible for asylum and withholding of deportation. Instead, he argues that the denial of a waiver of inadmissibility 

under section 212(c) of the Act was erroneous. Specifically, the 

respondent contends that the immigration judge should have taken 

into account all the relevant evidence in the record, including 

affidavits which the respondent submitted in connection with his 

asylum application, in evaluating his application for relief under 

section 212(c). We disagree. An application under section 212(c) of the 

Act is not the appropriate application in which to advance a claim of a 

well-founded fear of persecution. 

A respondent seeking a waiver under section 212(c) may indeed 

present evidence of hardship, such as conditions in his homeland, as 

an equity in his favor. Such evidence of hardship will be considered. 

Matter ofMarin, 16 I&N Dec. 581 (BIA 1978). However, Congress has 

provided asylum and withholding of deportation as the appropriate 

avenues for requesting relief from deportation on the basis of a fear of 

persecution. See sections 208(a) and 243(h) of the Act. In order to 

establish eligibility for relief under those sections, an alien must satisfy 

a number of specific procedural and substantive requirements. See, 

e.g., section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) 

(1988); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevic, 

467 U.S. 407 (1984); Matter of Mogharrabi, 19 I&N Dec. 439 (ETA 

3The immigration judge property noted inaccuracies on the Order to Show Cause 

which, however, did not affect the determination of deportability. 

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Interim Decision #3236 

1987), modifying Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); 8 

C.F.R. § 208 (1994). 

Therefore, any evidence of general conditions in an alien's homeland should be weighed as a factor in evaluating a section 212(c) 

application, but consideration of that evidence should not include an 

evaluation of whether the applicant has demonstrated a "well-founded 

fear" or "clear probability" of persecution, nor whether it is more 

likely than not that his "life or freedom" would be threatened in his 

country on account of one of the five grounds specified in the Act. 

Those are terms of art specific to asylum and withholding of 

deportation applications and have no place in a section 212(c) 

application or adjudication. Sections 208(a) and 243(h) of the Act. INS 

v. Stevic, supra. Thus, the immigration judge did not err in the instant 

case by ignoring the affidavits the respondent submitted in connection 

with his pretermitted asylum claim. 

Our holding regarding this issue is consistent with the caselaw 

interpreting the suspension of deportation provision under section 

244(a) of the Act, 8 U.S.C. § 1254(a)-(1988 & Supp. V 1993). Just as a 

claim of persecution may not be presented in furtherance of a section 

212(c) application, as we have concluded here, so a claim of 

persecution may not be presented as a means of demonstrating 

extreme hardship for purposes of suspension of deportation under 

section 244(a) of the Act. See Gebremichael v. INS, 10 F.3d 28 (1st Cir. 

1993); Farzad v. INS, 802 F.2d 123 (5th Cir. 1986); Kashefi-Zihagh v. 

INS, 791 F.2d 708 (9th Cir. 1986); Sanchez v. INS, 707 F.2d 1523 

(D.C. Cir. 1983); Hee Yung Ahn v. INS, 651 F.2d 1285 (9th Cir. 1981); 

Matter of Kojoory, 12 I&N Dec. 215 (BIA. 1967); Matter of Liao, 11 

I&N Dec. 113 (BIA 1965). 

Accordingly, upon a review of the record in light of the respondent's 

argument on appeal, we find no reversible error in the immigration 

judge's thorough and well-written opinion. We observe that his 

findings of fact were correct, and that his conclusions of law were 

proper in light of the statute and the applicable precedents. See Matter 

of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991) 

(discussing in detail the complex interpretive history of section 212(c) 

of the Act), affd, 983 E2d 231 (5th Cir. 1993); Matter of RamirezSomera, 20 I&N Dec. 564 (BIA 1992) (holding that an alien convicted 

of an aggravated felony and sentenced to at least 5 years in prison 

remains eligible for relief under section 212(c) of the Act until he has 

actually served 5 years or more); see also Tipu v. INS, 20 F.3d 580 (3d 

Cir. 1994); Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir. 1991) 

(upholding the Board's "outstanding equities" standard in the case of 

drug offenders because the immigration laws clearly reflect strong 

congressional policy against lenient treatment in such cases); Black91R 
Interim Decision #3236 

wood v. INS, 803 F.2d 1165, 1167 (11th Cir. 1986) (same); Matter of 

Cerna, 20 I&N Dec. 399 (BIA 1991), aff'd, 979 F.2d 212 (1 1 th Cir. 

1992); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988); Matter of 

Marin, supra (setting forth the factors to be considered in the exercise 

of discretion under section 212(c)). 

In view of the foregoing, we adopt the immigration judge's findings 

of fact and conclusions of law as our own. We add only that the 

respondent claimed, vaguely and without substantiation, that he 

"supported" his children in Cuba. We find that this bare and 

unsupported assertion relating to the respondent's character is of 

minimal weight at best and does not change the calculus of equities 

and adverse factors which leads us to conclude, on the basis of all the 

relevant evidence and for the reasons stated in the immigration judge's 

decision, that the respondent does not merit the relief he seeks. 

Consequently, the respondent's appeal is without merit and will be 

dismissed. 

ORDER: The appeal is dismissed. 

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