4483, 42 Fed. Reg. 4391 (1977), reprinted in 50 U.S.C.A. App. § 462 (1978), and the accompanying Executive Order, Exec. Order No. 11967, 42 Fed. Reg. 4393 (1977), reprinted in 50 U.S.C.A. App. §462 (1978). Rahman v. INS, 429 U.S. 1084 (1977). On April 8, 1977, the Court of Appeals remanded the record to us for reconsideration. The proceedings will be terminated.

On January 21, 1977, President Carter signed Proclamation No. 4483 granting a pardon to persons who had committed certain violations of the Military Selective Service Act between August 4, 1964, and March 28, 1973. The President then issued Executive Order 11967 to implement the pardon. The Executive Order provides, in pertinent part, that:

Any person who is or may be precluded from reentering the United States under 8 U.S.C. 1182(a)(22) or under any other law, by reason of having committed or apparently committed any violation of the Military Selective Service Act shall be permitted as any other alien to reenter the United States.

The Attorney General has interpreted the Presidential Pardon as relieving those aliens within its terms from the application of the "evading training or service" provisions of section 212(a)(22) of the Act if the alien presented himself for readmission to the United States as a returning lawful permanent resident on or before June 1, 1978. See 42 Fed. Reg. 59563 (1977). It is clear that the respondent, who reentered the United States on July 17, 1968, is within the terms of the pardon as interpreted by the Attorney General. We find, therefore, that the deportation proceedings instituted against the respondent must be terminated, and the order of deportation entered in this case must be withdrawn.

ORDER: The deportation proceedings are terminated; the order of deportation entered against the respondent is withdrawn.

150 U.S.C.A. App. § 451 et seq.

MATTER OF MARIN

In Deportation Proceedings

A-13923847

Decided by Board August 4, 1978

(1) An application for discretionary relief under section 212(c) of the Act necessitates a balancing of the adverse factors of record evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of relief is in the best interest of this country.

(2) A statutorily eligible applicant who has the right to apply for relief under section 212(c) must be given the reasonable opportunity to come forward with favorable considerations which may offset the adverse matters of record.

(3) The equities that an applicant for relief under section 212(c) must bring forward to establish that favorable discretionary action is warranted will depend in each case on the nature and circumstances of the ground of exclusion sought waived and on the presence of any additional adverse factors (factors previously deemed favorable and unfavorable set forth).

(4) An applicant for discretionary relief under section 212(c) who has been convicted of a serious drug offense must demonstrate "unusual" or "outstanding" countervailing equities before a favorable exercise of discretion will be considered.

(5) An applicant for relief under section 212(c) who has a criminal record will ordinarily be required to make a showing of rehabilitation before relief will be granted as a matter of discretion.

(6) There is no irrebuttable presumption that a confined or recently convicted alien can never establish either that rehabilitation has occurred or that relief under section 212(c) should otherwise be granted.

(7) The recency of a conviction and the fact of confinement are matters relevant to the consideration of whether an alien has demonstrated his rehabilitation and whether relief should be granted as a matter of discretion.

(8) A District Director is not required to withhold the issuance of an Order to Show Cause in the case of a confined or recently convicted alien who is statutorily eligible for relief under section 212(c) in order to provide the alien a better opportunity to demonstrate his rehabilitation.

(9) The decision to institute deportation proceedings is vested in the discretion of the District Director and the Board of Immigration Appeals is not the proper forum in which to seek a review of the rationale underlying a District Director's decision in this regard.

CHARGE:

Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)-Conviction of narcotics

charge

ON BEHALF OF RESPONDENT:

Willard H. Myers, III, Esquire
Prisoners' Legal Services of New York

315 Lake Street

Elmira, New York 14901

ON BEHALF OF SERVICE:

George W. Masterton
Appellate Trial Attorney

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

In a decision dated August 23, 1977, the immigration judge found the respondent deportable as charged, denied his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), and ordered his deportation to Colombia. The respondent has appealed. The appeal will be dismissed.

The respondent, a 46-year-old native and citizen of Colombia, was admitted to the United States for lawful permanent residence on February 3, 1965. In March 1976, he entered a guilty plea in a New York State criminal court to the felony charge of criminal sale of cocaine. On April 29, 1976, he was sentenced to the minimum mandatory sentence provided under New York law for that offense, an indeterminate sentence of one year to life. Including credited pretrail confinement, the respondent served some 30 months of this sentence (from November 1975 through May 1978) in New York State penal institutions.

On May 11, 1977, while still confined, an Order to Show Cause was issued charging the respondent with being deportable under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an alien convicted of a designated drug offense. At the hearing held on July 20, 1977, the respondent conceded deportability. The immigration judge accordingly found him deportable as charged and that finding is not in issue on appeal.

At the deportation hearing, the respondent applied for relief under section 212(c) of the Act. That section provides, in pertinent part, 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. The grounds specified include an alien who has been convicted of a drug offense, as set forth in section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23). In light of our decision in Matter of Silva, Interim Decision 2532 (BIA 1976), the immigration judge properly concluded that the respondent was statutorily eligible for relief from deportation under section 212(c) even though he had not proceeded abroad subsequent to his entry for lawful permanent residence. See Francis v. INS, 532 F.2d 268 (2 Cir. 1976).

Section 212(c), however, does not provide an indiscriminate waiver

for all who demonstrate statutory eligibility for such relief. Instead, the Attorney General or his delegate is required to determine as a matter of discretion whether an applicant warrants the relief sought. The alien bears the burden of demonstrating that his application merits favorable consideration.

1

In the case before us, the immigration judge concluded that the respondent had failed to establish that "a waiver of deportability [was] merited as a matter of discretion." In this regard, he noted the nature of the respondent's criminal offense and subsequent confinement and concluded that a waiver should not be granted absent a showing of "unusual or outstanding equities." Other than his residence in the United States for 12 years, however, the respondent was "unable to advance any substantial equities." 2 He was single, childless, and had no relatives residing in this country. His closest relatives (a brother and sister) both lived in Colombia. The respondent's employment history was sporadic and he presented no evidence that he would have particular difficulty returning to Colombia other than stating that "life [was] too hard there."

Based on the "entire record," the immigration judge concluded that the respondent's conviction as a drug offender had not been sufficiently offset by his "twelve years of residence in the United States" and "his adjustment to prison life" to warrant the granting of discretionary relief under section 212(c). The application for relief was accordingly denied.

On appeal, the respondent, through counsel, states that the "decision of the immigration judge denying [his section 212(c)] application . . . in the exercise of discretion was neither founded upon standards which have been promulgated through regulation or adjudication, nor did the standards applied rest upon a permissible basis." The respondent submits that a wealth of precendential standards exist regarding the discretionary granting of section 212(c) relief, that the immigration judge made a “radical departure from the precedent decisions of this Board [by instead] employing the standards of Matter of Fernandez, supra, and Matter of Arai, supra," that he did so without citation or comment on the existing precedent decisions, that this departure "violated any standard for fair play, as well as due process," and that the factors actually relied upon by the immigration judge were impermissible.

'The immigration judge cited Matter of Fernandez, 14 I. & N. Dec. 24 (BIA 1972) (involving a section 212(h) waiver) as permitting him to refuse to entertain the section 212(c) application because the respondent was still in prison, but he in fact accepted the application and allowed the respondent the full opportunity to present evidence in support of a favorable exercise of discretion.

2 The immigration judge noted the factors deemed favorable in our decision in Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970) (involving adjustment of status under section 245 of the Act) and examined the record for their presence.

We find no merit to this basis of appeal. The Board has not adopted an inflexible test for an immigration judge to use to determine as a conclusory matter whether section 212(c) relief should be granted as a matter of discretion. The undesirability and "difficulty, if not impossibility, of defining any standard in discretionary matters of this character which may be applied in a stereotyped manner" has long been recognized. See Matter of L-, 3 I. & N. Dec. 767 (BIA 1949; A.G. 1949) (involving the seventh proviso to section 3 of the Act of 1917). Instead, it has been held that each case must be judged on its own merits. The immigration judge must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country.

In order to provide the framework for an equitable application of discretionary relief, the Board has enunciated factors relevant to the issue of whether section 212(c) relief should be granted as a matter of discretion. Among the factors deemed adverse to a respondent's application have been the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent's bad character or undesirability as a permanent resident of this country. See, for example, Matter of Carrasco, Interim Decision 2579 (BIA 1977), aff'd on other grounds, Carrasco-Favela v. INS, 563 F.2d 1220 (5 Cir. 1977); Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter of M—, 3 I. & N. Dec. 804 (BIA 1949) (involving the seventh proviso to section 3 of the Immigration Act of 1917); Matter of V-, 1 I. & N. Dec. 293 (BIA 1942) (seventh proviso); Matter of G-, 1 I. & N. Dec. 8 (BIA 1940; A.G. 1940) (seventh proviso).

Although in an individual case, one or more of these adverse factors may ultimately be determinative of whether section 212(c) relief is in fact granted, their presence does not preclude a respondent from presenting evidence in support of a favorable exercise of discretion. See Vissian v. INS, 548 F.2d 325, 330 (10 Cir. 1977).3 Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particu

3 Matter of Fernandez, supra, which involved an application for section 212(h) relief filed by an incarcerated applicant in exclusion proceedings, should not be read as permitting an immigration judge to decline to entertain an application for relief under section 212(c) by a statutorily eligible respondent merely because he is held in confinement. A respondent with the right to apply for such relief must be given the reasonable opportunity to meet his burden of establishing that relief should be granted as a matter of discretion. See Matter of M-, 7 I. & N. Dec. 368 (BIA 1956).