Immigration and Nationality Act and granted voluntary departure in lieu of deportation in proceedings instituted against him in 1972. He moved to reopen the proceedings in order to apply for adjustment of status under section 245 of the Act. In a decision dated April 15, 1976, the immigration judge, after granting the motion, denied the application and renewed the previous grant of voluntary departure. The respondent has appealed from that decision. The appeal will be dismissed.

The immigration judge held that the respondent, a native and citizen of the Philippines, was statutorily eligible for section 245 relief, but he denied it as a matter of discretion. In so doing, he relied on evidence that the respondent had divorced his wife in order to obtain immigration benefits, and that, at the time of his entry to the United States as a nonimmigrant, the respondent had a preconceived intent to remain in the United States.

The evidence was in the form of a written memorandum to the file by the arresting immigration officer and the officer's testimony at the hearing. In the memorandum and at the hearing the witness allegedly related the substance of an interrogation made of the respondent after his arrest. According to the officer's testimony, at the time of the arrest the respondent asked that his attorney be notified. An unsuccessful attempt was made to contact her. The officer also testified that he had advised the respondent at that time of his right to remain silent (Tr. p. 23-24). Nevertheless, while being taken to the Service office, the respondent answered the officer's questions, admitting that he came to the United States with the intention to remain here permanently and that he had divorced his wife in order to obtain an immigrant visa. Shortly after arriving at the Service office, the respondent's attorney was contacted.

Counsel objects to the admission into evidence of the memorandum and of the arresting officer's testimony. He contends that the interrogation was unlawful because it was conducted (1) without the presence of counsel and (2) without Miranda warnings.

It is not clear from this record that there was a failure to give Miranda warnings. In any event, neither the statute nor the regulations provide that an alien in deportation proceedings is entitled to have counsel present during an initial interrogation or to receive the warnings required in criminal proceedings by the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966). Furthermore, it has been held that Miranda warnings are not required to be given in connection with civil proceedings under the immigration law, even to an alien in custody. Chavez-Raya v. INS, 519 F.2d 397 (7 Cir. 1975). See Nai Cheng Chen v. INS, 537 F.2d 566 (1 Cir. 1976); Trias-Hernandez v. INS, 528 F.2d 366 (9 Cir. 1975); Matter of Chen, Interim Decision 2440 (BIA 1975), affirmed Chen v. INS, 537 F.2d 566 (1 Cir. 1976).

Counsel argues that the fact that the respondent was questioned without counsel after having requested counsel amounted to a denial of his Sixth Amendment right. We disagree. In Escobedo v. Illinois, 378 U.S. 478 (1964) the United States Supreme Court established the right to have the assistance of counsel in a criminal interrogation when the person being interrogated so requested. However, the Supreme Court has held with respect to criminal proceedings that, in a case in which the Miranda decision did not apply, a person who made a request for the presence of counsel but who nonetheless proceeded to answer questions had not been deprived of his right to counsel. Frazier v. Cupp, 394 U.S. 731 (1969). See also Earp v. Cupp, 453 F.2d 378 (9 Cir. 1972); Connors v. South Dakota, 422 F.2d 122 (8 Cir. 1970), cert. denied 389 U.S. 954 (1970). As in Frazier, there is no indication in the record that the respondent answered the questions under duress or as a result of coercion. We note that the court stated in Frazier that the defendant's request had been somewhat ambiguous. Nevertheless, even assuming that in the present case the request for counsel was clearer than that in Frazier, we find the distinction insignificant in view of the more stringent rules applicable to criminal proceedings.

The admissions made by the respondent regarding his preconceived intent to remain here permanently have no bearing on deportability, which has been conceded. They relate only to his application for discretionary relief and are an adverse factor. Soo Yuen v. INS, 456 F.2d 1107 (9 Cir. 1972); Ameeriar v. INS, 438 F.2d 1028 (3 Cir. 1971), cert. dismissed, 404 U.S. 801 (1971); Chen v. Foley, 385 F.2d 929 (6 Cir. 1967), cert. denied, 393 U.S. 838 (1968); Cubillos-Gonzalez v. INS, 352 F.2d 782 (9 Cir. 1965); Castillo v. INS, 350 F.2d 1 (9 Cir. 1965). Moreover, we also conclude that the evidence indicating that the respondent divorced his wife primarily to obtain immigration benefits is a significant adverse factor which bears upon the exercise of discretion. We note that the facts of this case distinguish it from those in Matter of Blas, Interim Decision 2485 (BIA 1974; Attorney General 1976). In Blas, although affirming the Board decision denying the application for adjustment of status, the Attorney General held that it was improper to deny the relief for the purpose of vindicating the alien's former marriage. However, in Blas, unlike in the present case, there was evidence that the divorce was obtained for reasons other than to circumvent the immigration laws.

The equities present in behalf of the respondent are insufficient to warrant a grant of adjustment of status. Accordingly, we conclude that the immigration judge's denial of section 245 relief was proper, and we shall dismiss the appeal.

ORDER: The appeal is dismissed.

FURTHER ORDER: The respondent is granted voluntary depar

ture without expense to the Government on such date as may be granted by the District Director. If the respondent fails to depart when and as required, the privilege of voluntary departure shall be withdrawn without further notice or proceedings and the following Order shall thereupon become immediately effective: the respondent shall be deported from the United States to the Philippines on the charge contained in the Order to Show Cause.

MATTER OF HOM

In Deportation Proceedings

A-14338500

Decided by Board February 25, 1977

(1) Respondent who entered the United States as a lawful permanent resident in 1967 was, in 1975, found deportable under section 241(a)(11) of the Immigration and Nationality Act as an alien who had been convicted of a violation of a law relating to the illicit possession or traffic in a narcotic drug. Respondent moved to reopen deportation proceedings to apply for adjustment of status under section 245 of the Act which was denied by the immigration judge on the ground that respondent was statutorily ineligible for that relief, and respondent appealed.

(2) The appeal will be sustained, and the motion will be granted. In the light of Francis v. INS, 532 F.2d 268, and Matter of Silva, Interim Decision 2532 (BIA 1976) a waiver of the grounds of inadmissibility under section 212(c) of the Act may be granted in deportation proceedings regardless of whether the alien made an entry when eligible for the relief or whether the alien may adjust his status under section 245. Consequently, in the circumstances of the instant case, the question of respondent's eligibility for adjustment of status is not relevant. Upon a showing of eligibility for section 212(c) relief, deportation proceedings may be reopened to give respondent opportunity to apply for relief under section 212(c) of the Act.

CHARGE:

Order: Act of 1952-Section 241(a)(11) [8 U.S. C. 1251(a)(11)]-Convicted of a violation of a law relating to the illicit possession or traffic in a narcotic drug

ON BEHALF OF RESPONDENT: Stanley H. Wallenstein, Esquire

Schiano & Wallenstein

80 Wall Street

New York, New York 10005

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

In a 1975 decision of an immigration judge, the respondent was found deportable as an alien who had been convicted of a violation of a law relating to the illicit possession or traffic in a narcotic drug under section 241(a)(11) of the Immigration and Nationality Act. The respondent moved to reopen the proceedings in order to apply for adjustment of status under section 245 of the Act. The immigration judge denied the motion on the ground that the respondent had failed to establish statut

ory eligibility for section 245 relief. The respondent has appealed from that denial. The appeal will be sustained and the motion will be granted.

The respondent, a native and citizen of China, seeks to avoid deportation by obtaining a waiver of inadmissibility under section 212(c) in connection with an adjustment of status under section 245.

Section 212(c) 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 paragraphs (25) and paragraphs (30) and (31) of subsection (a).

The respondent concededly is inadmissible under section 212(a)(23) by reason of his narcotics conviction.

Although the statute describes a waiver available to an alien seeking to enter the United States, we long held that this waiver might be granted in deportation proceedings if either (1) the same ground of deportability would have rendered the alien inadmissible at his last entry and at the time of that entry, the alien was eligible for the relief [Matter of Tanori, Interim Decision 2467 (BIA 1976)], or (2) the application for a waiver under section 212(c) was made in connection with an application for adjustment of status under section 245 of the Act. Matter of Smith, 11 I. & N. Dec. 325 (BIA 1965). An alien in deportation proceedings who had neither reentered the United States since becoming deportable nor was eligible for adjustment of status was precluded from obtaining the relief. Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971), aff'd 466 F.2d 1198 (September 1972).

The United States Court of Appeals for the Second Circuit, however, held in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), that the provisions of section 212(c) are available not only to permanent resident aliens 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, but that section 212(c) relief may also be granted to non-departing permanent resident aliens with a lawful unrelinquished domicile of seven consecutive years. The Board subsequently held in Matter of Silva, Interim Decision 2532 (BIA 1976), that under the court's decision in Francis, supra, no distinction shall be made between permanent resident aliens who temporarily proceed abroad and nondeparting permanent resident aliens in applying the provisions of section 212(c).

Under Board decisions rendered prior to Silva, supra, the respondent in the present case who has not departed the United States since his narcotics conviction, could only have made his application for a section 212(c) waiver in connection with an application for adjustment of status. However, following the reasoning in Silva, supra, a section 212(c)