Interim Decision #2631 

MATTER OF LOK 

In Deportation Proceedings 

A-31327663 

Decided by Board January 13, 1978 

(1) A waiver of inadmissibility under section 212(c) of the Immigration and Nationality 

Act, 8 U. S. C. 1182(c), may be granted in deportation proceedings in connection with an 

application for adjustment of status. 

(2) When United States Court of Appeals for the Second Circuit overruled conclusion of 

the Board of Immigration Appeals that a respondent is statutorily ineligible for section 

212(e) relief if he does not have a lawful unrelinquished domicile of seven consecutive 

years following a lawful admission for permanent residence, and held that it was 

possible for an alien to possess a "lawful domicile" without having been admitted for 

permanent residence, the Board remanded for an administrative determinatiom 

whether respondent's "domicile" prior to his admission as a permanent resident was 

lawful. (But see Matter of Anwo, Interim Decision 2604 (BIA 1977), for cases arising 

outside Second Circuit.) 

CHARGE: 

Order: Act of 1952—Section 241(a)(11), I. & N. Act, [8 U.S.C. 1251(a)(11)1—Convicted 

of conspiracy for violation of narcotics laws; possession of narcotics with intent to distribute heroin. U.S. Code Title 21, sections 

812, 841(a)(1), 841(b)(1)(A); Title 18, U.S. Code section 2 

ON BEHALF OF RESPONDENT: Max K. Schlem, Esquire 

223 Broadway 

New York, New York 10007 

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members 

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

respondent deportable under section 241(a)(11) of the Immigration and 

Nationality Act, 8 U.S.C. 1251(a)(11), denied his application for a 

waiver of inadmissibility under section 212(c) of the Act, 8 U.S.G. 

1182(c), and ordered his deportation. The respondent appealed from that 

decision. In our order dated July 30, 1976, Matter of Lok, Interim 

Decision 2509 (BIA 1976), we dismissed respondent's appeal. The respondent appealed our decision to the United States Court of Appeals 

for the Second Circuit. In a decision issued on January 4, 1977, Laic "r. 

548 F.2d 37 (2 Cir. 197'7), the United States Court of Appeals 

granted the respondent's petition for review and remanded the case to 

441 
Interim Decision #2631 

this Board for proceedings not inconsistent with the opinion of the court. 

The record contains a letter dated May 31, 1977, and issued by the 

United States Attorney for the Southern District of New York to the 

District Director of the New York Office of the Immigration and Naturalization Service. In that letter, the District Director was informed 

that the Solicitor General refused to authorize the Service to petition 

the Supreme Court of the United States for a writ of certiorari; and that 

the decision of the Court of Appeals dated January 4, 1977, was the final 

decision in this case. The record will be remanded to the immigration 

judge. 

In our initial decision, Matter of Lok, supra, we determined that the 

only issue raised on appeal involved respondent's application for a 

waiver of inadmissibility under section 212(c) 1of the Act. We concluded 

that a waiver under this section may be granted in deportation proceedings in connection with an application for adjustment of status. Matter of 

Smith, 11 I. & N. Dec. 325 (BIA 1965). However, we also concluded that 

the seven-year period of domicile in the United States must have followed 

the respondent's lawful admission for permanent residence. Matter of 

S —, 5L & N. Dec. 116 (BIA 1953). We held that since the respondent was 

not admitted as a. lawful permanent resident .until 1971, he did not have 

the requisite seven years and therefore was statutorily ineligible for 

section 212(c) relief. 

In Lok v. INS, supra, the Court of Appeals for the Second Circuit 

overruled our decision in the instant case and rejected our interpretation of the statutory phrase "lawful unrelinquished domicile" as set forth 

hiMatter of S—, supra. The court expressed the opinion that the phrase 

"lawfully admitted for permanent residence" does not bear the same 

meaning as the words "lawful unrelinquished domicile." The court concluded that was in fact possible for an alien to possess a "lawful domicile" 

in the United States without having been admitted for permanent 

residence. 2Accordingly, the court remanded this case to us for 

. . consideration of Tim Lok's application for discretionary waiver of 

exclusion unencumbered by the erroneous decision in Matter of S—." In 

so' holding the court concluded that ". . . the only remaining objection 

would seem to be that his domicile prior to admission as a permanent 

resident was not lawful." In this regard the court was of the view that a 

Section 212(c) provides in pertinent part: 

_Aliens lawfully admitted for permanent residence who temporarily proceeded 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 the provisions of paragraph (1) through (25) 

and paragraphs (30) and (31) of subsection (a). (Emphasis supplied.) 

2 We note that we have declined to adopt the holding of the Court of Appeals for the 

Second Circuit inLok v_ INS, supra, in the ca cec arising outside of the Second Circuit See 

44 Tatter of Anwo, Interim Decision 2604 (BIA 1977). 

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interim Decision #ztisi 

determination must be made as to respondent's contentions that the 

Service's failure to enforce a 1965 order of deportation "legalized" his 

stay in the United States a_nd, alternatively, that the respondent's 

marriage to a United States citizen on February 23, 1968, should be 

considered the beginning of seven years of "lawful" domicile. 

In light of the aforementioned court decision, we shall remand this 

case to the immigration judge for appropriate action in accordance with 

the order of the court. The immigration judge shall enter a new decision 

and certify this case to us for review. 

ORDER: The record is remanded to the immigration judge for the 

purpose of reopening the proceedings and for the entry of a new deci7 

 sion. 

Board Member Mary P. Maguire abstained from consideration of this 

case. 

443