Interim Decision #2926 

MATTER OF DUARTE 

In Exclusion Proceedings 

A-19078551 

Decided by Board November 1, 1982 

(1) The United States domicile of one who retains his lawful permanent resident status 

must be considered lawful. 

(2) The lawful permanent resident status of an alien is terminated as a result of his commission of an excludable act or the occurrence of an excludable event only upon the 

entry of a final administrative order of exclusion and deportation. Metter of Lok, 

18 I&N Dec. 101 (BIA 1 1), followed. 

(3) An alien who epters the United States while in an excludable class prior to accruing 

7 years as a lawful permanent resident does not thereby lose his lawful status nor his 

eligibility for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 

1182(c). Matter of M-, 7 I&N Dec. 140 (BIA 1956),overruled. Dicta in Matter of 

Hinojosa, 17 IAN Dee. 34 (BIA 1979) 2nd 17 UN Dee. 322 (BIA 1980), superseded. 

EXCLUDABLE: 

Act of 1052—Sec. 212(a)(23) [3 U.S.C. 1182(a)(23))—Convicted of violation of a law 

relating to the illicit possession with intent to distribute marijuana 

ON BEHALF OF APPLICANT: ON BEHALFVF SEnvICE: 

Frederick Better, Esquire Harold J. Neubauer 

2220 Fifth Avenue General Attorney 

San Diego, California 92101 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacci, Board Members 

In a decision dated April 15, 1981, an immigration judge found the 

applicant excludable under section 212(a)(23) of the Immigration and 

Nationality Act, 8 U.S.C. 1182(a)(23), denied as a matter of law his 

application for relief under section 212(c) of the Act, 8 U.S.C. 1182(c), 

and ordered him excluded and deported from the United States. The 

applicant has appealed from that decision. 

The applicant, a 32-year-old native and citizen of Mexico, was admitted to the United States for lawful permanent residence on July 25, 

1969. In the spring of 1970, he returned to Mexico where he resided 

until August 1974, crossing the border regularly to work in this country 

as a migrant farm worker. The applicant married a Mexican citizen in 

1971 and has two sons by that marriage who are also citizens of Mexico. 

329 
Interim Decision #2926 

The applicant's wife and children never immigrated to the United States. 

On August 14, 1974, approximately 79 pounds of marijuana were 

discovered in the applicant's automobile as he sought to reenter the 

United States. He was paroled into the United States for prosecution 

and on November 4, 1974, was convicted of a violation of 21 U.S.C. 

841(a)(1), to wit, possession of 6: controlled substance with intent to 

distribute. The applicant was sentenced to serve 120 days of a 3 -year 

term of.impdsonment pursuant to that conviction, the balance of the 

term suspended with probation conditioned upon his returning forthwith to Mexico and not entering the United States without permission. 

Upon his release from confinement, the applicant was met by officers of 

the Immigration and Naturalization Service who returned him to Mexico without instituting exclusion proceedings. 

According to his testimony, the applicant returned to the United 

States in January 1975, entering without inspection, and remained in 

this country to the time of his exclusion hearing. He visited Mexico 

about four times a year, reentering the United States without inspection on each occasion. In December 1979, after his criminal probation 

had expired, the applicant applied for admission to the United States. 

These exclusion proceedings ensued.' On appeal, the applicant does not 

challenge the immigration judge's finding of excludability but appeals 

solely from the denial of section 212(e) relief. 

. Section 212(c) of the Act 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). ... 

The immigration judge found that the applicant had lost his lawful permanent resident status prior to the hearing and, hence, could not establish statutory eligibility for section 212(c) relief_ He cited alternative 

rationales for his holding: (1) that the applicant's lawful permanent resident status ended when he entered without inspection (see Matter of 

M-, 5 I&N Dec. 642 (BIA 1954)) and (2) that such status terminated 

when the applicant departed and reentered the United States within the 

first 7 years of acquiring lawful permanent residence subsequent to an 

' We find this case distinguishable from the Ninth Circuit's decision in Plasencia v. 

Sureck, 637 F.2d 1286 (9 Cir. 1980), and therefore conclude that the applicant was properly placed in exclusion, not deportation, proceedings. The court in Plasencia held that 

where There is a question as to whether the visit abroad of a lawful permanent resident 

was "meaningfully interruptive" of the alien's United States residence so as to subject him 

to the consequences of an "entry," the issues of "entry" and excludability must be litigated 

in deportation proceedings. In the present case, however, the applicant's criminal conviction for trafficking in marijuana conclusively resolves that question against him. See 

Matter of. Contreras, 18 I&N Dec. 30 (BIA 1981). 

330 
Interim Decision #2926 

act or event that rendered him excludable (see Matter of M-, 7 I&N Dec. 

140 (BIA 1956); Matter of Hinojosa, 17 I&N Dec. 34 (BIA 1979) and 17 

I&N Dec. 322 (BIA 1980)). 

In a recently published case, Matter of Gultaydin, 18 I&N Dec. 326 

(BIA 1982), we retreated from our decision in Matter of M-, 5 I&N Dee. 

642 (BIA 1954), to the extent that decision has been understood to hold 

that an entry without inapection automatically terminates an alien's 

lawful permanent resident status. We found that proposition inconsistent with and superseded by subsequent Board precedents which held 

that an act or event which provides a basis for an alien's deportation 

does not in itself terminate his lawful permanent resident status but, 

rather, that such status ends as a result of his commission of a deportable offense only upon the entry of a final administrative order of 

deportation. SeeMatter of Lok, 18 I&N Dec. 101 (BIA 1981), affd, Lok 

v. INS, 681 F.2d 107 (2 Cir. 1982); Matter of Gunaydin, supra. 

We turn now to the alternative basis for the immigration judge's 

decision. Matter of Hinojosa, 17 I&N Dec. 34 (BIA 1979). and 17 I&N 

Dec. 322 (MA 1930), the only precedent decisions which discussed Matter 

of M-, 7 I&N Dec. 140 (BIA 1956), in its 26-year history, distinguished 

the case on the facts. The holding in Matter of M-, id., is now squarely 

before us. As we find the present Matter of M-, like the Volume 5 case of 

the same name, incompatible with subsequent case law, we shall withdraw from our holding therein and from the dicta in Matter of Hinojosa, 

supra. 

In Matter of M-, the Board held that a lawful permanent resident who 

departed and reentered the United States while hr the state of being 

inadmilgible had no "lawful domicile" in this country from the date of 

that entry and could not thereafter accumulate time toward the satisfaction of the 7-year "lawful unrelinquished domicile" requirement of section 212(c). Thus, an alien who had not completed 7 years as a lawful 

- permanent resident at the time of an entry made subsequent to an act or 

event giving rise to excludability, and hence could not qualify for a 

section 21?(c) waiver at the time of such entry, was forever barred from 

establishing eligibility for relief under section 212(c). That result followed notwithstanding the fact that there had been no adjudication of 

the alien's excludability until after the 7-year period had elapsed. 

in Matter of Lok, supra, the Board observed that the United States 

domicile of one who retains his lawful permanent resident status must 

be considered lawful .2We then proceeded to consider the point in the 

a It is, of course, possible for a lawful permanent resident, e.g., a commuter, to have a 

domicile in another country. See Matter of Carrasco, 16 I&N Dec. 195 (BIA 1977), affd 

sub noes. Carrasca-Favela v. INS, 563 F.2d 1220 (5 Cir. 1977). If he is domiciled in the 

United States, however, his domicile is lawful so long as he retains his lawful permanent 

resident status. 

331 
Interim Decision #2926 

deportation proceedings at which the status of an alien lawfully admitted for permanent residence comes to an end by reason of the act or 

event that rendered him deportable. We concluded that the alien retains 

his lawful status until a final administrative order of deportation has 

been entered in his case. The rule in Lok, announced in the context of 

deportation proceedings, applies as well to an alien in exclusion proceedings. As the applicant in the instant case is not now under a final 

administrative order of exclusion and deportation and does not appear 

to have been otherwise divested of his lawful permanent resident status, 3 

 we find that such status continues to exist to the present time, as does 

the lawfulness of his domicile if he in fact is domiciled in the United 

States. Our contrary holding in Matter of M-, i.e., that an alien who 

enters while in an excludable class prior to accruing 7 years of lawful 

permanent residence thereby loses his lawful status and his eligibility 

for section 212(e) relief, is herewith overruled. 

We note parenthetically the critical significance Matter of M- attached 

to an "entry." Such emphasis on the comings and goings of a lawful 

permanent resident would appear inappropriate in light of Francis v. 

INS, 532 F.2d 268 (2 Cir. 1976), 4a decision adopted by the Board in 

Matter of Silva, 16 I&N Dec. 26 (BIA 1976). See Matter of Hinojosa, 17 

I&N Dee. 322, 324 (BIA 1980). 

Deciding that the applicant retains his lawful permanent resident 

status and thus is not precluded by its termination from establishing 

statutory eligibility for a section 212(c) waiver does not dispose of the 

case. A question remains whether the applicant was domiciled in the 

United States for the requisite period. It is clear that the applicant was 

a commuter prior to his arrest in. August 1974 and that his domicile until 

that time Alm in Mexico, not the United States. See generally Matter of 

Sanchez, 17 I&N Dec. 218 (BIA 1980); Matter of Hoffraan-Arvayo, 13 

I&N Dec. 750 (BIA 1971). The location of his domicile since his reentry 

in January 1975 is not, however, discernible from the record presently 

before us. Inasmuch as we conclude that a favorable exercise of discretion is not warranted in this ease, it will not be necessary to remand the 

record for further development of the question. See generally INS v. 

Bagantasktd, 429 U.S. 24 (1976). 

3Lawful permanent resident status may also be lost through abandonment, intentional 

or unintentional; rescission of adjustment of status; adjustment to nonimmigrant status; 

or the alien's departure from the United States under an order of deportation or an order 

of exclusion and deportation. Matter of Lok, supra, at n. 8. 

Section 212(e) by its terms applies only to excludable aliens seeking to enter the 

United States. However, the cour•in Francis, supra, finding no rational basis for drawing a distinction between an alien who departed and returned and an alien who remained 

in thin country following the act or event giving rise to deportability, held that section 

212(c) relief cannot constitutionally be denied an alien solely because he had not departed 

the United States and hence had made no reentry after becoming deportable. 

332 
Interim Decision #2926 

We regard the applicant's crime, which involved trafficking in a large 

quantity of marijuana, to be an extremely serious negative factor that 

has not been overcome by a showing of unusual or outstanding countervailing equities. See generally Matter of Maria, 16 IN Dec. 581 (BIA 

1978). The presence in the United States of the applicant's mother and 

brother is not in itself sufficient to outweigh the serious adverse factor 

militating against a grant of relief. The applicant has failed to demonstrate any other substantial equities. His wife and children reside in 

Mexico. The applicant himself has spent a considerable amount of time 

in his native country since his admission to the United States. 

An applicant for relief under section 212(c) bears the burden of establishing that his application merits favorable consideration. Matter of 

Maria, supra. As we find that the applicant has not successfully met 

that burden, the appeal will be dismissed. 

ORDER The appeal is dismissed. 

333