ROMAN

19 I. & N. Dec. 855

• Court: Board of Immigration Appeals
• Decided: July 1, 1988
• Docket: ID 3095
• Status: Published

Opinion

Interim Decision #3095

MATTER OF ROMAN

In Deportation Proceedings

A-37481891

Decided by Board December 16; 1988

A respondent in deportation proceedings who was excludable under both sections 212(aX17) and (20) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(aX17) and (20) (1982), cannot establish combined eligibility for none pro tune permission to reapply for admission and a waiver of inadmissibility pursuant to section 241(0 of the Act, 8 U.S.C. § 1251(0 (1982), where she is not separately eligible for either form of relief. CHARGE: Order: Act of 1952—Sec. 241(aX1) [8 U.S.C. § 1251(aX1)j—Excludable at entry under section 212(aX17) [8 U.S.C. § 1182(aX17)j—No permis- sion to reapply after deportation Sec. 241(aX1) [8 U.S.C. §1251(aX1)}—Excludable at entry under section 212(aX20) [8 U.S.C. § 1182(aX20)1—No valid immigrant visa ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Howard Davison, Esquire Margaret Jambor 8142 Wilshire Boulevard General Attorney Suite 7 Los Angeles, California 90010

BY: Mho:Alan, Chairman; Dunne, Morris, Varea, and Heilman, Board Members

In a decision dated August 21, 1985, an immigration judge found the respondent deportable under section 241(01) of the Immigra- tion and Nationality Act, 8 U.S.C. § 1251(a)(1) (1982), for having been excludable at the time of entry under section 212(aX17) of the Act, 8 U.S.C. §1182(aX17) (1982), as an alien who had no permission to reapply for admission after deportation, and for having been ex- cludable at the time of entry under section 212(aX20) of the Act as an alien with nu valid immigrant visa. The immigration judge also denied the respondent's applications for a waiver of deportability under section 241(f) of the Act, for retroactive permission to reap- ply for admission after deportation, and for voluntary departure C2Kg Interim Decision #3095

under section 244(e) of the Act, 8 U.S.C. § 1254(e) (1982). The re- spondent has appealed from that decision. The appeal will be dis- missed. The respondent is a 36-year-old native and citizen of Mexico, who had entered and had been admitted to the United States as a lawful permanent resident on April 24, 1981. The record reflects that on June 14, 1982, she was deported from the United States under an assumed name, pursuant to section 241(a)(2) of the Act as an alien who had entered the United States without inspection on May 25, 1982. She subsequently reentered the United States on June 18, 1982, presenting at the border an Alien Registration Re- ceipt Card (Form I-551) in her name. At the time of entry, she had not applied for permission to reapply for admission after deporta- tion. At the deportation proceedings, the respondent admitted the fac- tual allegations contained in the Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-2215) and con- ceded her deportability as charged under section 241(a)(1) of the Act on the basis of being excludable at entry under section 212(a)(17) for not having permission to reapply for admission after deportation, and excludable under section 212(a)(20) for not having a valid immigrant visa. On appeal, the respondent, through counsel who also represented the respondent in the deportation proceed- ings, contends that she was not deportable as charged. She asserts that she was a lawful permanent resident when deported on June 14, 1982, and that her deportation was thus invalid and could not sustain a charge of deportability under section 241(a)(1) due to ex- cludability under section 212(a.)(17) in the current deportation pro- ceedings. She argues that she should not have been deported in 1982 without a hearing and an order rescinding her lawful perma- nent resident status. The respondent also contends that as her status had not been rescinded, her Alien Registration Receipt Card was valid at the time of her last entry on June 18, 1982, and that therefore she is not now deportable for not having a valid immi- grant visa at the time of her last entry. The Board first points out that the respondent admitted the fac- tual allegations in the Order to Show Cause and conceded her de- portability at the deportation hearing. She therefore cannot contest her deportability on appeal. Under 8 C.F.R. § 3.1(d)(1-a)(ii) (1988), the Board may summarily dismiss any appeal in which the only specified reason for the appeal is a finding of fact or conclusion of law conceded at the deportation hearing. Moreover, an alien may collaterally attack a final order of exclu- sion or deportation in a subsequent deportation proceeding only if

856 Interim Decision #3095

she can show that the prior order resulted in a gross miscarriage of justice. Ramirez-Juarez v. INS, 633 F.2d 174 (9th Cir. 1980); Her- nandez-Almaraa v. United States Dept. of Justice, INS, 547 F.2d 100 (9th Cir. 1976); sec also Matter of Farina.% 12 I&N Dec_ 467 (BIA 1967). In the case at hand, the immigration judge properly found the respondent deportable as charged. At the time of her de- portation in 1982, an order specifically rescinding her lawful per- manent resident status was not necessary. The respondent auto- matically lost her lawful permanent resident status when the final order of deportation was entered. Matter of Duarte, 18 I&N Dec. 329 (BIA 1982); see also Wall v.. INS, 722 F.2d 1442 (9th Cir. 1984); Lok v. INS, 681 F.2d 107 (2d Cir. 1982), aff'g Matter of Lok, 18 I&N Dec. 101 (BIA 1981). The status of a lawful permanent resident who has entered without inspection terminates when the adjudication of her deportability becomes final. Matter of Gunaydin, 18 I&N Dec. 326 BIA 1982), aff'd, Gunaydin v. United States INS, 742 F.2d 776 (3d Cir. 1984). Thus, the respondent was excludable at entry in 1982 for not having a valid immigrant visa and for failing to have permission to reapply for admission after deportation. The Board concludes that the respondent's deportability has been established by clear, unequivocal, and convincing evidence, as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1988). On appeal, the respondent has not challenged the immigration judge's denial of her application for voluntary departure. The only issues properly before us concern whether the immigration judge properly denied the respondent's application for a waiver of deport- ability under section 241(f) of the Act, and her application for retro- active permission to reapply for admission after deportation. A record of conviction included in the record states that the re- spondent was convicted on November 15, 1982, in the United States District Court for the Southern District of California of conspiracy to transport and harbor illegal aliens in violation of 18 U.S.C. § 371 (1982) and 8 U.S.C. § 1324 (1982). She was sentenced to imprison- ment for a period of 1 year and 1 day. The record also reflects that she has two United States citizen children living in the United States, aged 15 and 11. School records submitted as evidence show that the younger child entered an elementary school in July 1984, and that the older child entered an intermediate school that same month. A March 29, 1985, letter from the respondent's employer re- lates that she had been employed there as a sewing machine opera- tor since January 16, 1984, and that her job was considered to be of a permanent nature. At her deportation hearing, the respondent testified that she served 8 months of the sentence for her criminal conviction before being released. Interim Decision #3095

The immigration judge denied her applications for a waiver of deportability under section 241(f) of the Act and for retroactive per- mission to reapply for admission after deportation. He concluded that she was ineligible for relief under section 241(f) because she did not have an immigrant visa at the time of entry, as required by that section, and additionally was not otherwise admissible if such relief was granted due to her excludability under section 212(a)(17). He also concluded that she was not eligible for retroactive permis -

sion to reapply for admission after deportation, as she was not an applicant for adjustment of status and the grant of permission would not eliminate the sole ground of deportability. On appeal, the respondent contends that she is eligible for relief under section 241(0, as she was in possession of a valid Alien Regis- tration Receipt Card at the time of her entry in 1982, after having been improperly deported, and because she presented herself as a lawful permanent resident in good standing, with this act constitut- ing an entry by fraud or misrepresentation within the meaning of section 241(f) She also asserts that the judge erred in determining that she was not otherwise admissible due to her excludability under section 212(a)(17), since this ground of excludability should have been waived by granting her r etroactive permission to reap- ply for admission after deportation. Contending that the grant of this latter relief would have removed the only remaining ground of inadmissibility, and thus deportability, due to her other ground of inadmissibility under section 212(aX20) being waived under section 241(f), she asserts that both forms of relief were warranted as a matter of discretion. The pertinent part of section 241(0 states as follows: (1XA) The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation, or entry into the United States, by fraud or misrepresentation, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in subsection (aX19)) who— (1) is the spouse, parent, or child of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (ii) was in possession of an immigrant visa or equivalent document and was oth- erwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (14), (20), and (21) of section 212(a) which were a direct result of that fraud or misrepresentation. (B) A waiver of deportation for fraud ur Lulea spi esente.tion granted under subpara- graph (A) shall also operate to waive deportation based on the grounds of inadmis- sibility at entry described under subparagraph (AXii) directly resulting from such fraud or misrepresentation.

858 Interim Decision #3095

Section 212(a)(17) of the Act states that an alien who has been previously arrested and deported is excludable at the time of a sub- sequent entry if admission is sought within 5 years of deportation, unless the Attorney General has consented to her applying or reap- plying for admission. We have held that the Board or an immigra- tion judge may grant such permission retroactively when appropri- ate and necessary to the disposition of the case. Matter of Ng, 17 I&N Dec. 63 (BIA 1979); Matter of Ducret, 15 I&N Dec. 620 (BIA 1976). Two situations have been identified in which that power may be exercised: (1) where the only ground of deportability or inadmis- sibility -would thereby be eliminated; and (2) where the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissibility. Id. In view of the respondent's deportability on the charge based on section 212(a)(11) of the Act, we find that she is ineligible for sec- tion 241(0 relief as she was not "otherwise admissible" to the United. States at the time of her entry. See Haines-Herreru v. Rosenberg, 463 F.2d 451 (9th Cir. 1972); Vargas v. INS, 409 F.2d 335 (5th Cir. 1968), cert. denied, 396 U.S. 895 (1969). Eligibility for sec- tion 241(0 relief requires that the alien be "otherwise admissible to the United States at the time of entry except for those grounds of inadmissibility specified under paragraphs (14), (20), and (21) of sec- tion 212(a) which were a direct result of that fraud or misrepresen- tation." Inadmissibility under section 212(a)(17) is not a ground of inadmissibility within the scope of this provision. Therefore, the Board Ends that the respondent's application for relief under sec- tion 241(0 must be denied. As the respondent was excludable at entry under section 212(a)(20) for having no valid immigrant visa and thus remains de- portable, her application for retroactive permission to reapply for admission after deportation must also be denied. As discussed above, this Board may grant a respondent nuns pro tune permis- sion to reapply for admission under a few well-defined instances. Here, a grant of such relief would not eliminate the only ground of deportability, as this respondent was not in possession of a valid unexpired immigrant visa or other valid entry document when she entered the United States. See Matter of Ducret, supra; Matter of Vrettakos, 14 I&N Dec. 593 (BIA 1973; 1974); Matter of M-C-, 9 I&N Dec. 280, 284 (BIA 1961). This is not a case where an alien with an otherwise valid immigrant or nonimmigrant entry docu- ment simply failed to request permission to reapply for admission, the granting of which would have permitted her lawful entry into the United States. Interim Decision #8095

On appeal, the respondent submits that the immigration judge erred in "bootstrapping," but it is the respondent who seeks to "bootstrap" eligibility for relief. The respondent states that "once [s]ect1on 241(0 . . . relief is granted, the only charge which remains is the 212(a)(17) charge and therefore the judge could grant the relief of the application." This analysis, however, presupposes eligi- bility for section 241(f) relief that does not exist. We do not find that the respondent can "bootstrap" eligibility from one waiver to the other where she is not separately eligible for either. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.