Interim Decision #1280 

MATTER OF Pascrano-Caarnao 

In DEPORTATION Proceedings 

A-11431809 

Decided by Board July 6, 1962. 

An alien who was lawfully admitted for permanent residence in 1918 and who 

was found deportable in 1901 on grounds arising subsequent to such admission 

is ineligible for creation of a record of lawful admission under section 249 since 

a record of lawful admission in his case is still available. 

CHARGE: 

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Two crimes 

involving moral turpitude, petty theft and attempted petty theft. 

The case comes forward on appeal from the order of the, special inquiry officer dated May 14, 1962, denying the motion to reopen to afford 

the respondent an opportunity to apply,for adjustment of status under 

the provisions of section 249 of the Immigration and Nationality Act. 

The record-relates to a native and citizen of Mexico, 61 years old, 

male, who first came to the United 'States in January 1914. His status 

in this country was adjusted by payment of head tax and there appears to be a record of his lawful admission for permanent residence 

on June ft, 1918. He has lived in this country continuously with 

the exception of a 23-day-visit to Mexico in October 1929. On September 12, 1961, after hearing, the respondent was found deportable 

under the provisions of section 241(a) (4) of the Immigration and 

Nationality Act on the ground that he had been convicted of two 

crimes involving moral turpitude not arising out of a single scheme 

of criminal misconduct, to wit: (1) petty theft in violation of section. 

484 of the Penal Code of the State of California, on February 20, 1951, 

in the Municipal Court of Oakland, California, and (2) attempted 

petty theft on March 29, 1938, in the Municipal Court of Oakland, 

California; and was granted the privilege of voluntary departure in 

lieu of deportation, with the further order that if he failed to depart 

as required, the privilege of voluntary departure would be withdrawn 

without further notice and the respondent would be ordered deported 

on thetharge contained in the order to show cause. 

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Interim Decision #1280 

Thereafter, in April 1982, counsel for the respondent submitted a 

motion to the special inquiry officer for reopening of the deportation 

proeeedbvs to permit submission of an application for a change of 

status to that of a permanent resident under section 249 of the Immigration and Nationality Act. Although counsel concedes that the 

respondent did in fact enter the United States for permanent lawful 

residence, he points out it has been determined in the deportation 

proceedings that he is not at this time a lawful permanent resident 

of the United States. He argues that the respondent's record of entry 

has in effect been nullified by acts committed by him since entry, and 

thatseetion-249--was.enacterito make available a means of adjusting 

status for an alien who has no effective and subsisting record of lawful 

admission_ In connection with the appeal enimsel has filed a brief 

in which he repeats these arguments and in addition, urgds that although the respondent was once lawfully admitted for permanent 

residence, either in 1914 or none pro tune in 1918, he does not now have 

a status which entitles him to depart from the United States and reenter, to apply for United States Citizenship or to take advantage of 

any other privilege normally available to a lawful permanent resident; 

that he does not have an effective subsisting -useable status as an alien 

lawfully admitted for permanent residence who has not subsequently 

committed acts which would render him subject to deportation; and 

that the phrase in section 249 "if no such record is otherwise available" 

means there must be available, to a section 249 applicant a record of 

admission for permanent residence as fully effective as on the day 

he was lawfully admitted. 

The special inquiry officer denied the motion to reopen for adjustment of status under section 249 of the Immigration and Nationality 

Act on the ground that in the instant case, a record of respondent's 

lawful admission for permanent residence is available and consequently he would not come -within the purview of section 249. In 

addition, the special inquiry officer cited Matter of 5,-6 I. & N. Dec. 

392, in which the Board held that the status of one lawfully admitted 

for permanent residence is not vitiated by the fact that he may 

subsequently have become deportable. 

Section 249 of the Immigration and Nationality Act, as amended 

by the Act of August 8, 1958 (Public Law 85-616, 72 Stat. 540, 1 

 provides as follows: 

A record of lawful admission for permanent residence may, in the discretion 

of the Attorney General and under such regulations as he may prescribe, be 

made in the case of any alien, as of the date of the approval of his application 

or, if entry occurred prior to July 1, 192, as of the date of such entry, if no 

such record is otherwise available and such alien shall satisfy the Attorney 

1 8 U.S.C. 1258 (C.A.P.P.19131). 

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Interim Decision #1230 

General that he is not inadmissible under Section 212(a) insofar as it relates 

to criminals, procurers and other immoral persons, subversives, violators of the 

.narcotic laws or smugglers of aliens, and he establishes that lie— 

(a) entered the United States prior to June 28,1940; 

(b) has had his residence in the United States continuously since such 

entry ; 

(c) is a person of good moral character ; and 

(d) is not ineligible to citizenship. 

The predecessor statute to section 249 was the Act of March 2, 1929; 

its purpose was to provide relief for aliens who entered the United 

States prior to July 1, 1924, (now June 28, 1940) where there was inability to locate a record of their permanent admission in comforraity 

with the immigration law at the time of their entry. The Act of June 

.29, 1906, required that a registry be made of certain facts concerning 

each alien arriving in the United States and that "a certificate of such 

entry with the particulars thereof" be granted to each alien. Section 

249, and its predecessor statutes was passed in order to permit the 

naturalization, at the discretion of the government, of aliens who did 

not possess this certificate of registry—a certificate which was required for naturalization. In short, section 249 is an ameliorative 

provision; it appears to have been designed to aid a person who has 

formed a substantial tie to the United States and who should not be 

automatically denied naturalization because of his inability to furnish 

the certificate? 

The amendments adopted in 1958 have enlarged the impact and significance of the registry proceeding and have expanded the number 

who can qualify. The major revision in 1958 advanced the cut off 

slate to June 28, 1940 (the effective date of the Alien Registration Act 

of 1940, 54 Stat. 670), and eliminated the complete disqualification of 

those subject to deportation. Instead, the 1958 amendment disqualified only those inadmissible for certain aggravated grounds specified 

therein. Elimination of the disqualification of deportables has made 

this procedure for administrative adjustment of status available to 

many who previously were deportable as overstayed nonimmigrants 

or as illegal entrants.' 

The 1952 Act in its original form, and prior enactments, barred 

relief to aliens who were deportable. This limitation was revised by 

the 1958 amendment, which withholds registry only from aliens who 

are inadmissible to the United States on criminal, prostitution, subversive, narcotics, or aliens smuggling grounds. This means that re- 

' Sit Jay Sing v. Nice, 182 F. Supp. 292 (N.D. Cal., S.D. 1960), aff'd 287 

F. 2d 561 (C.A. 9, 1961) ; 2 U.B. Code Cong. Adm. News (85th Cong., 2d Sess., 1958) 

p. 8249. 

Gordon & Rosenfield, Immigration Law and Procedure (1959), section 7.6, 

p. 735 
Interim Decision #1280 

lief is available to aliens otherwise qualified under the statute, who 

are deportable for entry without proper inspection or documents or 

who overstayed the period or violated the terms of temporary entry? 

The statutory requirement in section 249 as amended, that there be 

no record of a lawful admission, is satisfied when there exists a record 

of admission which however is not lawful, ab initio as when an alien 

is admitted in a nonquota immigrant- status to which he was not 

entitled.5 

Such a situation, however, does not apply to the instant case, where 

the requirement in the statute, that there be no record of a lawful 

admission, has not been met because there does exist such a record of 

lawful admission and the respondent has thereafter become subject to 

deportation on grounds arising subsequent to such admission The 

fact that an alien lawfully admitted for permanent residence subsequently became deportable for causes arising after entry does not 

prevent the exercise of the discretion contained in section 212(c) of 

the Immigration and Nationality Act, which deals with discretionary 

relief for an alien lawfully admitted for permanent residence, for the 

reason that the status of such an alien did not change because of his 

subsequent deportability.6It has been held that a record of prior 

lawful admission did not preclude an adjustment of immigration status 

under section 249 where such record of lawful admission existed but 

was vitiated by a subsequent • illegal entry, but in that case it was 

pointed out that the alien's departure and subsequent illegal entry 

without inspection was not the result of exclusion or expulsion proceedings, his absence was temporary, and he was not a member of one, 

of the excludable classes enumerated in section 241 7 

In the instant ease, the application for registry pursuant to section 

249 of the Immigration and Nationality Act, as amended, is not available for the reason that there exists a record of lawful entry which 

has not been, vitiated by the respondent's subsequent deportability on 

criminal. grounds. The appeal-from the -order .of the special inquiry 

officer denying the motion to reopen under the provisions of section 249 

of the Immigration and Nationality Act, as amended, will be dismissed. 

- ORDER: It,is ordered that the appeal be and the same is hereby 

dismissed.. 

- • 

• Om, p. 738:• ' 

'Matter .of 2—, 8 I. & N. Dec. 288; Cf. Matter.ofR-11--, Int. Dec. No. 1110, 

vihere section 212 (n) Could not be used to aid a section 249 adjustment where no 

record of entry could be found. 

" • Matter of g—, 61. &N. Dee. 892. 

Matter of 8 L & N. Dem 598. - 

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