DUARTE

18 I. & N. Dec. 329

• Court: Board of Immigration Appeals
• Decided: July 1, 1982
• Docket: ID 2926
• Status: Published

Opinion

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 com- mission 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 Dicta in Matter of Hinojosa, 17 IAN Dee. 34 (BIA 1979) 2nd 17 UN Dee. 322 (BIA 1980), superseded.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 admit- ted 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 forth- with 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 Mex- ico 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 inspec- tion 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 per- manent resident status prior to the hearing and, hence, could not estab- lish statutory eligibility for section 212(c) relief_ He cited alternative rationales for his holding: (1) that the applicant's lawful permanent resi- dent 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 prop- erly 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 convic- tion 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 inconsis- tent 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 deport- able 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 with- draw 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 satisfac- tion of the 7 year "lawful unrelinquished domicile" requirement of sec- -

tion 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 fol- lowed 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 .2 We 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 admit- ted 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 pro- ceedings. 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 wefindthasuc oetxishprnme,ados 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), 4 a 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 discre- tion 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). 3 Lawful 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 draw- ing 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 counter- vailing 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 demon- strate 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 estab- lishing 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.