MEZA

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MATTER OF MEZA
In Deportation Proceedings
A-17970904
Decided by Board May 22, 1991

(1) Pursuant to prior precedent decisions of the Board of Immigration Appeals, a waiver
under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
(1988), is available in deportation proceedings only to those aliens who have been
found deportable under a ground of deportability for which there is a comparable
ground of excludability.

(2) Section 212(c) of the Act as amended by the Immigration Act of 1990, Pub. L. No.
101-649, § 511, 104 Stat. 4978, 5052, implies that some allens who have been
convicted of an aggravated felony are eligible for a section 212(c) waiver, although
clearly no alien who has been convicted of an aggravated felony and has served a term
of imprisonment of at least 5 years is eligible for a waiver under section 212(c) as
amencied.

(3) An alien deportable under section 241(a)(4)(B) of the Act, 8 U.S.C. § 1251(a)(4)(B)
(1988), for a drug-related aggravated felony which could also form the basis for
excludability under section 212(a)(23) is not precluded from establishing eligibility for
a section 212(c) waiver.

CHARGE:

Order: Act of 1952-Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)]-Convicted of aggra-
vated felony

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)]-Convicted of controlled
substance violation

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE: Catherine J. Light General Attorney

Simon Salinas. Esquire

1671 Wilshire Boulevard, Suite 302

Los Angeles, California 90017

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Concurring.
Opinion: Heilman, Board Member.

In a decision dated October 16, 1990, the immigration judge found
the respondent deportable under section 241(a)(4)(B) of the Immigra-

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# Interim Decision #3146

tion and Nationality Act, 8 U.S.C. § 1251(a)(4)(B) (1988),1 for
conviction of an aggravated felony, and under section 241(a)(11) of the
Act2 for conviction of a controlled substance violation. The immigra-
tion judge denied the respondent's application for a waiver under
section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988), on the ground
that an alien deportable on the basis of a conviction for an aggravated
felony is not eligible for a section 212(c) waiver. The respondent has
appealed only from the immigration judge's finding of ineligibility for
section 212(c) relief. The appeal will be sustained, and the record will
be remanded to the immigration judge. The respondent's request for
oral argument before the Board of Immigration Appeals is denied. 8
C.F.R. § 3.1(e) (1991).

Under the precedent decisions of this Board, a section 212(c) waiver
is available in deportation proceedings only to those aliens who have
been found deportable under a ground of deportability for which there
is a comparable ground of excludability. Matter of Wadud, 19 I&N
Dec. 182 (BIA 1984); Matter of Granados, 16 I&N Dec. 726 (BIA
1979), aff'd, 624 F.2d 191 (9th Cir. 1980); Matter of Salmon. 16 I&N
Dec. 734 (BIA 1978); see also Cabasug v. INS, 847 F.2d 1321 (9th Cir.
1988). There is no exclusion ground based specifically on the fact that
an alien has been "convicted of an aggravated felony."3 For this reason
the immigration judge found that the respondent is not eligible for
section 212(c) relief.

Section 511(a) of the Immigration Act of 1990, Pub. L. No. 101-
649, 104 Stat. 4978, 5052 (effective Nov. 29, 1990) amended section
212(c) of the Act to include that a section 212(c) waiver "shall not
apply to an alien who has been convicted of an aggravated felony and
has served a term of imprisonment of at least 5 years." This
amendment applies to admissions occurring after November 29, 1990.
See section 511(b) of the Immigration Act of 1990, 104 Stat. at 5052.
Section 511(a) implies that some aliens who have been convicted of an
aggravated felony are eligible for a section 212(c) waiver, although
clearly no alien who has been convicted of an aggravated felony and
has served a term of imprisonment of at least 5 years is eligible for a
waiver under section 212(c) as amended. Moreover, it is evident from
the legislative history of the Immigration Act of 1990 that the
limitation of section 511(a) was imposed with the understanding that

1 Revised and redesignated as section 241(a)(2)(A)(iii) of the Act by section 602 of the
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5080 (effective Nov. 29,
1990).

2 Revised and redesignated as section 241(a)(2)(B) of the Act by section 602 of the
Immigration Act of 1990, 104 Stat. at 5080.

3 Section 241(a)(4)(B) of the Act renders deportable an alien who is "convicted of an
aggravated felony at any time after entry."

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section 212(c) relief was available to some aliens notwithstanding the
conviction of an aggravated felony. See 136 Cong. Rec. S6586, S6604
(daily ed. May 18, 1990) ("Section 212(c) provides relief from
exclusion and by court decision from deportation .... This discretion-
ary relief is obtained by numerous excludable and deportable aliens,
including aliens convicted of aggravated felonies .... ").

Accordingly, we find that a waiver under section 212(c) is not
unavailable to an alien convicted of an aggravated felony simply
because there is no ground of exclusion which recites the words,
"convicted of an aggravated felony," as in section 241(a)(4)(B) of the
Act. The definition of "aggravated felony" at section 101(a)(43) of the
Act, 8 U.S.C.A. § 1101(a)(43) (West Supp. 1991), refers to several
types or categories of offenses.4 The specific category of aggravated
felony at issue in this case is that based on "any illicit trafficking in any
controlled substance ... , including any drug trafficking crime." This
category is comprised of trafficking offenses, most, if not all, of which
would also be encompassed within the scope of section 212(a)(23) of
the Act.5 We find that as the respondent's conviction for a drug-related
aggravated felony clearly could also form the basis for excludability
under section 212(a)(23), he is not precluded from establishing
eligibility for section 212(c) relief based on his conviction for an
aggravated felony.

The Immigration and Naturalization Service does not contest the

4Section 101(a)(43) of the Act now provides:

The term "aggravated felony" means murder, any illicit trafficking in any controlled
substance (as defined in section 102 of the Controlled Substances Act), including any
drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code,
or any illicit trafficking in any firearms or destructive devices as defined in section
921 of such title, any offense described in section 1956 of title 18, United States Code
(relating to laundering of monetary instruments), or any crime of violence (as defined
in section 16 of title 18, United States Code, not including a purely political offense)
for which the term of imprisonment imposed (regardless of any suspension of such
imprisonment) is at least 5 years, or any attempt or conspiracy to commit any such
act. Such term applies to offenses described in the previous sentence whether in violation
of Federal or State law and also applies to offenses described in the previous sentence
in violation of foreign law for which the term of imprisonment was completed within
the previous 15 years.

Section 101(a)(43) of the Act, as amended by section 501 of the Immigration Act of
1990, 104 Stat. at 5048 (emphasis added). The amendments to section 101(a)(43) by
section 501 of the Immigration Act of 1990 apply to offenses committed on or after
November 29, 1990, except that the amendments underlined in the above-quoted
statute are effective as if included in the original definition of "aggravated felony" added
by section 7342 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat.
4181, 4469, effective November 18, 1988 See section 501(b) of the Immigration Act of
1990, 104 Stat. at 5048.

5 Revised and redesignated as sections 212(a)(2)(A)(i)(II) and (C) of the Act by section
601 of the Immigration Act of 1990, 104 Stat. at 5067-68.

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respondent's statutory eligibility for section 212(c) relief on other
grounds. Accordingly, the appeal will be sustained and the record will
be remanded to the immigration judge to determine whether the
respondent's application for a 212(c) waiver merits a favorable
exercise of discretion.6

ORDER: The appeal is sustained, and the record is remanded
to the immigration judge for proceedings consistent with the foregoing
opinion and for entry of a new decision.

CONCURRING OPINION: Michael J. Heilman, Board Member

I respectfully concur.

Section 511(a) of the Immigration Act of 1990, Pub. L. No. 101-649,
104 Stat. 4978, 5052, amended section 212(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(c) (1988), to provide that a section
212(c) waiver "shall not apply to an alien who has been convicted of
an aggravated felony and has served a term of imprisonment of at least
5 years." There is only one conclusion that can be drawn from this,
that a lawful permanent resident alien who is deportable as a result of a
conviction of an aggravated felony for which he served less than 5
years' imprisonment may apply for this relief in deportation proceed-
ings.

My conclusion is based on the following elements. First, there is no
ground of excludability based on conviction of an aggravated felony.
Second, there is a ground of deportability based on conviction for an
aggravated felony. Section 241(a)(4)(B) of the Act, 8 U.S.C.
§ 1251(a)(4)(B) (1988).' Third, Congress amended section 212(c) to bar
its benefits to an alien who had served 5 or more years' imprisonment
following a conviction for an aggravated felony.

Congress could not have meant its amendment of section 212(c) to
apply to a ground of excludability, as there is none, and if it does not
apply to a ground of deportability, then it applies to nothing. This
would certainly be the result under the interpretation favored by the
Immigration and Naturalization Service. What, then, was the purpose
of the amendment? The Service does not tell us.

Nonetheless, the purpose seems clear. Congress knew that section
212(c) relief had been accorded to lawful permanent residents in both
exclusion and deportation proceedings. The legislative history quoted

6 After the Board's review of this matter on the merits but before this decision was
issued, the Service submitted a late memorandum acknowledging the respondent's
statutory eligibility for a section 212(c) waiver and withdrawing its opposition to a
remand for further consideration of the respondent's application.

I Revised and redesignated as section 241(a)(2)(A)(iii) of the Act by section 602 of the
Immigration Act of 1990, 104 Stat. at 5080.

1

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by the majority shows this. Congress accepted this application of
section 212(c) but merely wished to limit its availability to lawful
permanent residents convicted of aggravated felonies. It did this by
barring section 212(c) relief to those persons who have served 5 or
more years of imprisonment.

It appears to me that this amendment renders irrelevant the
holdings of such cases as Matter of Wadud, 19 I&N Dec. 182 (BIA
1984), and Matter of Granados, 16 I&N Dec. 726 (BIA 1979), aff'd, 624
F.2d 191 (9th Cir. 1980), as far as aggravated felonies are concerned.
Even if all of the Board and judicial interpretations which have
extended section 212(c) relief to deportation grounds with "counter-
parts" in exclusion are swept away, section 212(c) relief will still be
available to aggravated felons in deportation proceedings under the
1990 amendment to section 212(c) of the Act. By this amendment,
Congress has now given a statutory basis for an application for section
212(c) relief in deportation proceedings, where previously this relief
had only been available through administrative and judicial interpre-
tation.

For these reasons, I would also sustain the appeal.