Interim Decision #2082 

MATTER OF ARIAS-URIBE 

In Deportation Proceedings 

A-8760789 

Decided by Board April 30, 1971 

Where an application for relief under section 212 (c) of the Immigration and 

Nationality Act is not coupled with an application for adjustment of status under section 245 of the Act, the applicant must meet the statutory 

requirement that he be returning to resume a lawful unrelinquished domicile of seven consecutive years following a temporary voluntary departure 

not under an order of deportation. Hence, respondent, a native and citizen 

of Mexico, whose deportability is predicated on his 1969 narcotics conviction and whose only departure from this country since his 1954 admission 

for permanent residence was in 1958 or 1959, is ineligible for section 

212(c) relief since he is not an alien returning to resume a lawful unrelinquished domicile. 

[Matter of S—, 6 I. & N. Dec. 392; Matter of G—A—, 7 I. & N. Dec. 

274; and Matter of Smith, 11 I. & N. Dec. 325, distinguished.] 

CHARGE: 

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11))—Convicted of violation of law relating to the illicit 

possession of a narcotic drug, to wit, heroin (section 11500, California Health and Safety Code) 

ON BEHALF OF RESPONDENT: William A. Herreras, Esquire, 

Thorpe, Sullivan, Clinnin & Workman 

940 East Santa Clara Street 

Ventura, California 93001 

(Brief filed) 

The respondent, a native and citizen of Mexico, concedes that 

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

Nationality Act as an alien convicted for possession of heroin in 

violation of section 11500 of the California Health and Safety 

Code. His appeal is directed to the denial of an application for 

advance permission to return to an unrelinquished domicile of 

seven consecutive years pursuant to the provisions of section 

212 (c) of the Immigration and Nationality Act, 8 U.S.C. 1182 (c). 

The respondent, a married male alien, 23 years of age, was adgog 
Interim Decision #2082 

mitted to the United States for permanent residence on October 

11, 1954. He was convicted in the Superior Court of the State of 

California for the County of Los Angeles for possession of heroin 

on January 13, 1969 and granted five years' probation on condition that he spend the first 90 days in jail. He was released from 

the county jail on April 15, 1969. He testified that his only departure from the United States since his original admission for permanent residence occurred in either 1958 or 1959. 

The issue presented by the case is whether a lawful permanent 

resident for more than seven years, who was convicted of possession of heroin in the United States after entry and, therefore, deportable under section 241(a) (11) of the Immigration and Nationality Act, is statutorily eligible for discretionary relief under 

section 212(c) of the Act in a deportation proceeding. The special 

inquiry officer concludes that the respondent is not statutorily eligible for the relief requested because since his conviction he is 

not an alien returning to the United States to resume a lawful 

domicile of seven consecutive years as required by section 212(c) 

of the Act. 

Counsel maintains that the respondent is statutorily eligible for 

relief from deportation pursuant to section 212 (c) of the Act. 

Section 212(c) provides in substance that aliens lawfully admitted for permanent residence, who temporarily proceed 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 certain specified grounds for exclusion enumerated in section 212 (a) of the Act, including an alien convicted of 

a narcotic violation as set forth in section 212 (a) (23). Counsel 

argues that present administrative practice, as well as tacit Congressional approval, permits an alien in a deportation proceeding 

to seek relief under section 212(c), notwithstanding the language 

of the statue which limits the relief to an alien who "temporarily 

proceeded abroad voluntarily and not under an order of deportation, and who [is] returning to a lawfully unrelinquished domicile of seven consecutive years." 

Counsel cites several reported decisions of this Board in support of his argument. The cited cases are distinguishable from 

the case before us. Our grant of relief under section 212(c) in 

Matter of S— and Matter of G—A---, supra, footnote 1, 

1Matter of S—, 6 I. & N. Dec. 392 (BIA, 1954, approved A.G. 1955); 

Matter of G—A—, 7 I. & N. Dec. 274 (BIA, 1956); Matter of Smith, 11 I. 

& N. Dec. 325 (BIA, 1965). 

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amounted to a nunc pro tune correction of a record of entry to 

avoid deportation. The aliens in both cases were statutorily eligible for section 212 (c) relief in that they had been lawfully admitted for permanent residence, their deportability stemmed from 

grounds of inadmissibility which arose prior to their voluntary, 

temporary departure not under an order of deportation and they 

were returning at the time of their last entry to an unrelinquished domicile of seven consecutive years. Our action in both 

cases was in accordance with long-established administrative 

practice which had its origin in an opinion by the Attorney General that relief under the 7th Proviso to section 3 of the 1917 Act, 

the predecessor of section 212(c), was available in deportation 

proceedings as well as exclusion proceedings, provided the alien 

came within the terms of the statute, Matter of L—, 1 I. & N. 

Dec. 1, 6 (A.G., 1940). The respondent in the instant case has 

had no entry preceded by a voluntary, temporary departure since 

he became deportable under section 241 (a) (11) of the Act by reason of his conviction as a narcotic violator in January of 1969. 

Counsel also maintains that the technical objection to the availability of section 212 (c) relief, to wit, that the respondent as a 

lawful resident is not "returning to the United States" following 

a temporary, voluntary absence was overruled in Matter of 

Smith, 11 I. & N. Dec. 325 (BIA, 1965). We do not agree. The 

Smith case was concerned with an application for adjustment of 

status under section 245 of the Immigration and Nationality Act 

which was submitted during the deportation proceeding accorded 

him on December 8, 1964. The order to show cause charged deportability under section 241 (a) (4) as an alien who, after entry, 

had been convicted of two crimes involving moral turpitude. It 

was stated for the record that the applicant would apply for an 

exercise of the discretion contained in section 212 (c) in connection with his application for adjustment of status under section 

245. The special inquiry officer adjourned the hearing without decision for the conduct of an investigation by the Immigration and 

Naturalization Service in connection with the alien's application 

for relief under section 245. The District Director denied the application for relief under section 212 (c) on the ground that the 

applicant did not warrant the favorable exercise of discretion because of two criminal convictions within the past five years. The 

applicant appealed this decision to the Board of Immigration Appeals. 

The notice of appeal in Matter of Smith urged error in that the 

special inquiry officer improperly refused to consider the appli698 
Interim Decision #2082 

cant's application for advance permission to return to an unrelinquished domicile in conjunction with his application for an 

adjustment of status under section 245 of the Act. The Service 

argued that counsel was attempting to use a deportation case as a 

vehicle for obtaining relief which is by statute limited to an exclusion proceeding. We held that the proper procedure in deportation case in which an alien applies for a waiver of a ground 

of inadmissibility under section 212 (c) in connection with an 

application for adjustment of status pursuant to section 245 is 

for the special inquiry officer to fully consider and adjudicate 

both applications. We stated in our opinion at pages 326 and 327: 

An applicant for adjustment of status under section 245 stands in the 

same position as an applicant who seeks to enter the United States with an 

immigration visa for permanent residence. Such an applicant must ... submit to all of the tests as if he were an applicant at a port of entry (8 CFR 

245.5). Since this respondent, as an applicant for relief under section 245, is 

subject to all of the exclusion provisions of section 212(a), we find no valid 

reason for denying him the benefits of section 212(c) on the technical 

ground that he is not returning to the United States after a voluntary departure. Such a conclusion is not required by the statute and would ignore 

substance for procedure. 

The respondent in the case before us, z native of the Western 

Hemisphere, is not eligible for relief under section 245 of the Act. 

Unlike Matter of Smith, this respondent is not subject to the excluding provisions of section 212 (a) in connection with an application for adjustment of status. The issue, therefore, is whether 

we have authority under the 1952 Act to grant the relief requested. There is no question but that we had such authority 

under the 7th Proviso to section 3 of the 1917 Act. 2It is patent 

from a comparison of the provisions of the two statutes that section 212 (c) of the 1952 Act limits the areas in which relief may 

be granted in two respects : (1) lawful admission for permanent 

residence became a specific requirement; and (2) the relief could 

no longer be given unless the alien left the United States voluntarily and not under an order of deportation (see Senate Report 

No. 1515, 81st. Cong. 2d Sess., at p. 384). Unlike the alien in 

Matter of Smith, this respondent does not stand in the same position as an applicant who seeks to enter the United States with an 

immigrant visa because he is not eligible for relief under section 

2 The 7th Proviso to section 3 of the Immigration Act of 1917 reads as follows: "That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted 

in the discretion of the Attorney General, and under such conditions as he 

may prescribe." 

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Interim Decision #2082 

245 of the Act. The requirement that an alien must have "temporarily proceeded abroad voluntarily and not under an order of deportation" makes it clear that Congress curtailed our authority 

for the advance exercise of section 212 (c) relief in a deportation 

proceeding. Where a section 212(c) application is not coupled 

with an application for adjustment of status under section 245 of 

the Act, we have no basis for avoiding the statutory requirement 

that an alien lawfully admitted for permanent residence must be 

returning to resume a lawful domicile of seven consecutive years 

following a temporary, voluntary departure not under an order of 

deportation. The respondent cannot qualify under this requirement of the statute. 

The respondent is married to a United States citizen and is the 

father of two minor citizen children. He has resided in the United 

States continuously since his lawful admission in 1954. He testified that his only departure since his original admission was in either 1958 or 1959. His deportation would undoubtedly cause great 

hardship to his citizen spouse and two minor children. The 

respondent is not eligible for discretionary relief under sections 

244 (a) (2) or (e). He does not qualify for relief under section 

241 (f). Our only alternative is to affirm the order of deportation 

entered by the special inquiry officer and dismiss the appeal. 

ORDER: It is directed that the appeal be and the same is 

hereby dismissed. 

Inn