Interim Decision #3184 

MATTER OF ALARCON 

In Deportation Proceedings 

A-27588330 

Decided by Board July 13, 1992 

(1) A respondent who has been convicted of two crimes involving moral turpitude not 

arising from a single scheme of criminal misconduct is inadmissible into the United 

States under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. 

1182(a) (Supp. II 1990), and is thus ineligible for adjustment of status under section 

245 of the Act, 8 U.S.C. § 1255 (Supp. II 1990), unless he is eligible for and should be 

granted a waiver of inadmissibility under section 212(h) of the Act. 

(2) At the time the respondent filed his application for a section 212(h) waiver, section 

601(d)(4) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5076-

77 (effective June I, 1991), required the passage of 15 years from the date of the 

deportable offense before an alien could be eligible for a waiver, therefore, the 

respondent's offenses, committed within the 15 years prior to his application, 

statutorily barred him from qualifying for a section 212(h) waiver. 

(3) The amendments made to section 212(h) of the Act during the pendency of the 

respondent's appeal to the Board of Immigration Appeals by section 307(1) of the 

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 

Pub. L. No. 102-232, 105 Stat. 1733 (enacted Dec. 12,,1991) ("1991 Amendments"), 

are applicable to his application for a waiver of inadmissibility under section 212(h). 

(4) The version of section 212(h) of the Act under the 1991 Amendments created two 

categories of immigrants eligible for relief; therefore, although the respondent is 

barred from establishing eligibility as a result of his convictions within the past 15 

years, he may be eligible for a waiver if he establishes that he has the requisite 

relationship to a United States citizen or lawful permanent resident and that his 

exclusion would result in extreme hardship to that family member. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(1)(B) [8 U.S.C. § 1251(a)(1)(13)1—In the United States 

in violation of law 

Sec. 241(a)(2)(A)(ii) [8 U.S.C. § 1251(a)(2)(A)M1—Crimes involving moral turpitude 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Elena Kusky 

General Attorney 

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

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Interim Decision #3184 

In an oral decision dated July 5, 1991, an immigration judge found 

the respondent deportable as charged and statutorily ineligible to apply 

for adjustment of status under section 245 of the Immigration and 

Nationality Act, 8 U.S.C. § 1255 (Supp. II 1990), and for a corresponding waiver of inadmissibility under section 212(h) of the Act, 8 

U.S.C. § 1182(h) (Supp. II 1990), and ordered him deported from the 

United States to Bolivia. The respondent has appealed from that 

decision. The appeal will be sustained and the record will be remanded 

to the immigration judge. 

The respondent, a native and citizen of Bolivia, entered the United 

States as a nonimmigrant visitor on an unknown date in January 1981. 

He was authorized to remain in the United States for a period not to 

exceed 1 year, but he never departed. On April 10, 1991, the 

Immigration and Naturalization Service issued an Order to Show 

Cause and Notice of Hearing (Form I-221) charging the respondent 

with deportability under section 241(a)(1)(B) of the Act, 8 U.S.C. 

§ 1251(a)(1)(B) (Supp. II 1990), for remaining longer than permitted, 

and under section 241(a)(2)(A)(n) of the Act, as an alien convicted of 

two or more crimes involving moral turpitude not arising from a single 

scheme of criminal misconduct. 

The deportation proceedings against the respondent commenced on 

April 16, 1991, and concluded on July 5, 1991. During the hearing on 

April 16, 1991, the respondent was present and represented by 

counsel. The proceedings were continued on several occasions.' On 

June 13, 1991, the respondent appeared with a new attorney. The 

respondent conceded deportability as charged under section 

241(a)(1)(B) of the Act, as an alien who remained longer than 

permitted by his nonimmigrant visa. 2He denied the charge of 

deportability under section 241(a)(2)(A)(ii) of the Act, as an alien 

convicted of two crimes involving moral turpitude not arising from a 

single scheme of criminal misconduct. However, at the continued 

hearing on July 5, 1991, the Service entered into evidence, without 

objection by the respondent, certified conviction records indicating 

that on July 14, 1980, the respondent was convicted in the Municipal 

Court of Los Angeles, State of California, of the crime of petty theft in 

'The proceedings were continued to May 7, 8, and 24, 1991, because the parties were 

not prepared to go forward. On May 24, 1991, the respondent appeared without counsel, 

advising the immigration judge that he was displeased with his attorney's services and 

wished to hire new counsel. 

2 At the hearing on May 8, 1991, the respondent testified that he entered the United 

States in January 1980. At the continued hearing on June 13, 1991, the respondent 

conceded deportability as charged for having entered the country in January 1981. We 

find that the discrepancy in the year of entry does not affect the respondent's concession 

of deportability. 

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Interim Decision #3184 

violation of section 484 of the California Penal Code. The record also 

shows that the respondent was convicted on June 22, 1987, in the 

United States District Court for the Central District of California, of 

mail fraud in violation of 18 U.S.C. § 1341 (1982), and of receipt of 

kickbacks on government contracts in violation of 41 U.S.C. §§ 51 

and 54 (1982). This Board finds that the respondent's deportability 

under sections 241(a)(1)(B) and (2)(A)(ii) of the Act has been 

established by clear, unequivocal, and convincing evidence, as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. 

§ 242.14(a) (1992). 

At the hearing on July 5, 1991, the respondent claimed that he is 

married to a United States citizen and has United States citizen 

children. He sought to apply for adjustment of status under section 

245 of the Act, and for a corresponding waiver of inadmissibility 

under section 212(h) of the Act. However, the immigration judge 

found that based on the recent amendment to section 212(h) of the Act 

by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 

(enacted Nov. 29, 1990) ("1990 Act"), the respondent was statutorily 

ineligible to apply for such relief. The only issue on appeal is whether 

the immigration judge properly found the respondent statutorily 

ineligible to apply for adjustment of status and the section 212(h) 

waiver. 

Section 245 of the Act provides that the Attorney General may in 

his discretion adjust the status of an alien inspected and admitted or 

paroled into the United States to that of an alien lawfully admitted for 

permanent residence if the alien applies for adjustment, is eligible to 

receive an immigrant visa and is admissible to the United States for 

permanent residence, and has an immigrant visa immediately available to him. An alien subject to deportation proceedings may also 

apply for adjustment of status before the immigration judge and, if 

inadmissible under section 212(a) of the Act, may also apply for a 

waiver of the ground of inadmissibility. See 8 C.F.R. § 242.17(a) 

(1992). 

An alien who is inadmissible under section 212(a) of the Act on the 

basis of his conviction for a crime or crimes involving moral turpitude 

may seek a waiver of inadmissibility under section 212(h) of the Act. 

In the case before us, the respondent was convicted in a California 

court on July 14, 1980, of petty theft in violation of section 484 of the 

California Penal Code, as well as mail fraud and receipt of kickbacks 

on government contracts in violation of 18 U.S.C. § 1341 and 41 

U.S.C. §§ 51 and 54, respectively. The respondent does not challenge 

on appeal the immigration judge's finding that the crimes of which he 

was convicted involve moral turpitude. See Jordan v. De George, 341 

U.S. 223 (1951); Matter of Squires, 17 I&N Dec. 561 (BIA 1980); 

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Interim Decision #3184 

Matter of Flores, 17 I&N Dec. 225 (BIA 1980); Matter of Acosta, 14 

I&N Dec. 338 (BIA 1973); Matter of L-, 5 I&N Dec. 705 (BIA 1954). 

As an alien convicted of two crimes involving moral turpitude, the 

respondent is inadmissible into the United States under section 212(a) 

of the Act, and he is therefore ineligible for adjustment of status unless 

he is eligible for and should be granted a waiver of inadmissibility 

under section 212(h). 

In light of recent amendments to section 212(h) of the Act, the 

timing of the deportation proceedings in the instant case is significant. 

At the July 5, 1991, hearing, the respondent sought to apply for 

adjustment of status and a waiver of inadmissibility under section 

212(h) of the Act. He conceded that he was ineligible for a waiver 

pursuant to the amendment to section 212(h) by the Immigration Act 

of 1990, which became effective on June 1, 1991. 3The amended 

provision of section 212(h) required the passage of 15 years from the 

date of the deportable offense before an alien could be eligible for a 

waiver. The respondent admitted that his offenses, committed on June 

7, 1980, and on or about June 22, 1987, were within 15 years from the 

date of his waiver application. Nonetheless, he contended that his 

waiver application should be adjudicated under the law in effect prior 

to June 1, 1991, the effective date of the 1990 amendment to section 

3Section 2I2(h) of the Act, as amended by section 601(d)(4) of the Immigration Act of 

1990, 104 Stat. at 5076-77 (effective June 1, 1991), provides as follows: 

The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of 

such subsection insofar as it relates to a single offense of simple possession of 30 

grams or less of marijuana in the case of an immigrant who is the spouse, parent, 

son, or daughter of a citizen of the United States or alien lawfully admitted for 

permanent residence if- 

(1) it is established to the satisfaction of the Attorney General that- 

(A) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such 

subsection or the activities for which the alien is excludable occurred more than 

15 years before the date of the alien's application for a visa, entry, or adjustment 

of status, and 

(B) the admission to the United States of such alien would not be contrary to 

the national welfare, safety, or security of the United States, and 

(C) the alien has been rehabilitated; and 

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions 

and procedures as he may by regulations prescribe, has consented to the alien's 

applying or reapplying for a visa, for admission to the United States, or adjustment 

of status. 

No waiver shall be provided under this subsection in the case of an alien who has been 

convicted of (or who has admitted committing acts that constitute) murder or 

criminal acts involving torture. (Emphasis added.) 

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Interim Decision #3184 

212(h). The respondent argued: (1) that the application should be 

decided based on the law in effect at the time of the issuance of the 

Order to Show Cause, i.e., on April 10, 1991; (2) that his prior 

attorney's incompetence in failing to file the application prior to June 

1, 1991, should not prejudice him in his request for relief under the 

preexisting law; and (3) that the recent amendment to section 212(h) of 

the Act is likely to be amended further by Congress. 

The immigration judge found that the respondent was bound by the 

actions of his prior counsel, and that he must show his eligibility for 

the relief sought at the time of the filing of his applications. The 

immigration judge further found that the respondent intended to file 

his waiver and adjustment of status applications on July 5, 1991, and 

that he must show statutory eligibility based on the law in effect at that 

time. The immigration judge concluded that under the recent amendment to section 212(h) by the 1990 Act, the respondent's two 

convictions within 15 years of his application rendered him statutorily 

ineligible for such relief. See section 212(h)(1)(A) of the Act, 8 

§ 1182(h)(1)(A) (Supp. II 1990). 

As the immigration judge noted, section 212(h) of the Act was 

significantly amended by the Immigration Act of 1990. At the time the 

immigration judge rendered his decision on July 5, 1991, he correctly 

found that the respondent was staluturily ineligible for a waive' under 

section 212(h). However, during the pendency of the appeal, and as 

anticipated by the respondent during the deportation hearing, 

Congress subsequently amended section 212(h) by the Miscellaneous 

and Technical Immigration and Naturalization Amendments of 1991, 

Pub. L. No. 102-232, 105 Stat. 1733 (enacted Dec. 12, 1991) ("1991 

Amendments"). As amended by section 601(d)(4) of the 1990 Act, 104 

Stat. at 5076-77, and section 307(f) of the 1991 Amendments, 105 

Stat. at 1755, section 212(h) now provides: 

The Attorney General may, in his discretion, waive the application of subparagraphs 

(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such 

subsection insofar as it relates to a single offense of simple possession of 30 grams or 

less of marijuana if- 

(1)(A) in the case of any immigrant it is established to the satisfaction of the 

Attorney General that- 

(i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such 

subsection or the activities for which the alien is excludable occurred more than 

15 years before the date of the alien's application for a visa, entry, or adjustment 

of status, 

(ii) the admission to the United States of such alien would not be contrary to 

the national welfare, safety, or security of the United States, and 

(iii) the alien has been rehabilitated; or 

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Interim Decision #3184 

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a 

citizen of the United States or an alien lawfully admitted for pennanent residence if 

it is established to the satisfaction of the Attorney General that the alien's exclusion 

would result in extreme hardship to the United States citizen or lawfully resident 

spouse, parent, son, or daughter of such alien; and 

(2) the Attorney General, in his discretion, and pursuant to such terms, 

conditions and procedures as he may by regulations prescribe, has consented to 

the alien's applying or reapplying fora visa, for admission to the United States, or 

adjustment of status. 

No waiver shall be provided under this subsection in the case of an alien who has 

been convicted of (or who has admitted committing acts that constitute) murder or 

criminal acts involving torture. (Emphasis added.) 

As he is seeking to adjust his status to that of a lawful permanent 

resident, the respondent in this case is assimilated to the position of an 

applicant for entry into the United States. Pei-Chi Tien v. INS, 638 

F.2d 1324 (5th Cir. 1981); Yui Sing Tse v. INS, 596 F.2d 831 (9th Cir. 

1979); Matter of Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991). For 

this reason, at the time of the Board's decision the respondent remains 

an individual seeking to enter the United States, and, as such, falls 

within the provisions of the most recent version of section 212(h) 

under the 1991 Amendments. 

An application for admission to the United States is a continuing 

application, and admissibility is determined on the basis of the facts 

and the law at the time the application is finally considered. Matter of 

Ching and Chen, 19 I&N Dec. 203 (BIA 1984); Matter of Kazemi, 19 

I&N Dec. 49 (BIA 1984); Matter of Ketema, 18 I&N Dec. 266 (BIA 

1982), rev'd on other grounds, Matter of Kazemi, supra; Matter ofK -, 9 

I&N Dec. 143 (S.I.O., BIA 1959; A.G. 1961), affd sub nom. Klapholz 

v. Esperdy, 201 F. Supp. 294 (S.D.N.Y. 1961), affd per curiam, 302 

F.2d 928 (2d Cir.), cert. denied, 371 U.S. 891 (1962). When a law is 

changed before a decision is handed down by an administrative 

agency, the agency must apply the new law. See Ziffrin v. United States, 

318 U.S. 73 (1943). If a statutory amendment renders an individual 

ineligible for adjustment of status prior to a final administrative 

decision on the previously filed application for relief, the application 

must be denied. Talanoa v. INS, 397 F.2d 196 (9th Cir. 1968); Patsis v. 

INS, 337 F.2d 733 (8th Cir. 1964), cert. denied, 380 U.S. 952 (1965); 

Fassilis v. Esperdy, 301 F.2d 429 (2d Cir. 1962); Matter of George and 

Lopez-Alvarez, 11 I&N Dec. 419 (BIA 1965). In deportation proceedings, a final administrative decision does not exist until the Board 

renders its decision in the case on appeal or certification, or, where no 

appeal to the Board is taken, when the right to appeal is waived, or the 

time allotted for appeal has expired. See Matter of Lok, 18 I&N Dec. 

101 (BIA 1981), affd on other grounds, 681 F.2d 107 (2d Cir. 1982). 

The version of section 212(h) under the 1991 Amendments 

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Interim Decision #3184 

essentially creates two categories of immigrants eligible for relief. The 

first category includes any immigrant who meets eligibility criteria 

which largely concern the type of exclusion ground involved or when 

the excludable activity occurred, as well as issues of the alien's 

rehabilitation and the national welfare, safety, or security of the 

United States. Section 212(h)(1)(A) of the Act, 8 U.S.C.A. 

§ 1182(h)(I)(A) (West Supp. 1992). The second category includes 

immigrants who demonstrate the requisite relationship to a United 

States citizen or lawful permanent resident and establish that their 

exclusion would result in extreme hardship to that citizen or lawful 

permanent resident. Section 212(h)(1)(B) of the Act. In the instant 

case, the respondent is allegedly married to a United States citizen and 

has United States citizen children. As such, he may demonstrate 

eligibility under section 212(h)(1)(B) by establishing extreme hardship 

to his United States citizen wife or children if he were excluded. 4 

As a result of the amendment to section 212(h) of the Act by the 

1991 Amendments, the Board fmds that the respondent appears to be 

eligible to apply for adjustment of status and a corresponding waiver 

under section 212(h) of the Act. Accordingly, we will sustain the 

appeal and remand the case to the immigration judge to accept the 

respondent's applications for adjustment of status and a section 212(h) 

waiver and to enter a new decision. 

ORDER: The appeal is sustained. 

FURTHER ORDER: The record is remanded to the immigration judge to accept the applications for adjustment of status and a 

waiver under section 212(h) of the Act and to enter a new decision in 

accordance with the foregoing opinion. 

4The two offenses for which the respondent is subject to exclusion occurred less than 

15 years ago. Therefore, he is ineligible for a waiver of inadmissibility under section 

212(hX1)(A) of the Act. 

563