MATTER OF P

In SECTION 5 Proceedings, Act of September 11, 1957

A-7749930

Decided by Assistant Commissioner July 24, 1958

A waiver granted under section 5, 6, or 7 of the Act of September 11, 1957, remains in full force and effect as to any subsequent entries by the alien if no new grounds of excludability have arisen and the alien is complying with the conditions imposed. (NOTE: The alien in this case is also the subject of Int. Dec. No. 928.)

APPLICATION: Waiver under section 5 of the Act of September 11, 1957, of excludability under section 212(a)(12) of the Immigration and Nationality Act.

This case has been certified to the Assistant Commissioner, Examinations Division.

Subject alien is a citizen of Mexico. She lives in El Paso, Texas, with her husband, who is a lawful permanent resident alien, and her 3 native-born United States citizen minor children. She has lived in the United States since 1944, when she was admitted for permanent residence on surrender of an immigrant visa. She engaged in prostitution in Mexico in 1941-1943.

On September 14, 1957, she went to Mexico but returned to her home in the United States the same day.

On April 21, 1958, the following final order was entered in her case in deportation proceedings:

It is ordered that pursuant to the discretion contained in section 5 of the Act of September 11, 1957, the alien be considered as having been lawfully admitted to the United States for permanent residence at El Paso, Texas, on September 14, 1957, notwithstanding her inadmissibility at that time as one who had engaged in prostitution (1941-1943), subject to revocation in the discretion of the Attorney General, after hearing, if the alien subsequently commits any offense.

On June 23, 1958, while visiting in Mexico and in advance of her application for re-entry to the United States, she applied in writing to a representative of the United States Immigration and Naturaliza

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tion Service stationed in Mexico City, Mexico, for a waiver of the same ground of excludability named in the above quoted order. There were no new material facts in her case. The application at once was denied as being unnecessary and the case certified to the Assistant Commissioner, Examinations Division, for review of the denial and for determination of the extent to which the principle involved should be applied.

The case illustrates this general question

An alien is a permanent legal resident of the United States by virtue of the exercise of the discretion under section 5, 6 or 7 of the Act of September 11, 1957, to grant waivers of excludability or deportability. Such alien makes a temporary visit abroad. Must he, in connection with each such individual visit, apply for another waiver of excludability?

To require an alien who has been granted a waiver under section 5, 6 or 7 of the act to reapply on each re-entry after a temporary absence would constitute an undue burden, curtail the beneficial effects of this remedial legislation, and unduly hamper travel. It is concluded, therefore, that during such time as the order granting the waiver remains unrevoked, it be regarded as in full force and effect as to any subsequent entries if no new grounds for excludability have arisen, and the alien is complying with the conditions under which the waiver was granted. In such circumstances, no new application for waiver of excludability is required.

The instant case meets these standards and the denial of her application was proper.

ORDER: The denial of the application of this alien for a waiver of excludability under section 5 of the Act of September 11, 1957, is approved.

MATTER OF PRECIADO-CASTILLO

In DEPORTATION Proceedings

A-11431809

Decided by Board July 6, 1962

An alien who was lawfully admitted for permanent residence in 1918 and who was found deportable in 1961 on grounds arising subsequent to such admission is ineligible for creation of a record of lawful admission under section 249 since a record of lawful admission in his case is still available.

CHARGE:

Order: Act of 1952-Section 241(a) (4) [8 U.S.C. 1251(a) (4)]-Two crimes involving moral turpitude, petty theft and attempted petty theft.

The case comes forward on appeal from the order of the special inquiry officer dated May 14, 1962, denying the motion to reopen to afford the respondent an opportunity to apply for adjustment of status under the provisions of section 249 of the Immigration and Nationality Act. The record relates to a native and citizen of Mexico, 61 years old, male, who first came to the United States in January 1914. His status in this country was adjusted by payment of head tax and there appears to be a record of his lawful admission for permanent residence on June 17, 1918. He has lived in this country continuously with the exception of a 23-day-visit to Mexico in October 1929. On September 12, 1961, after hearing, the respondent was found deportable under the provisions of section 241(a) (4) of the Immigration and Nationality Act on the ground that he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: (1) petty theft in violation of section 484 of the Penal Code of the State of California, on February 20, 1951, in the Municipal Court of Oakland, California, and (2) attempted petty theft on March 29, 1938, in the Municipal Court of Oakland, California; and was granted the privilege of voluntary departure in lieu of deportation, with the further order that if he failed to depart as required, the privilege of voluntary departure would be withdrawn without further notice and the respondent would be ordered deported on the charge contained in the order to show cause.

Thereafter, in April 1962, counsel for the respondent submitted a motion to the special inquiry officer for reopening of the deportation proceedings to permit submission of an application for a change of status to that of a permanent resident under section 249 of the Immigration and Nationality Act. Although counsel concedes that the respondent did in fact enter the United States for permanent lawful residence, he points out it has been determined in the deportation proceedings that he is not at this time a lawful permanent resident of the United States. He argues that the respondent's record of entry has in effect been nullified by acts committed by him since entry, and that section 249 was enacted to make available a means of adjusting status for an alien who has no effective and subsisting record of lawful admission. In connection with the appeal counsel has filed a brief in which he repeats these arguments and in addition, urges that although the respondent was once lawfully admitted for permanent residence, either in 1914 or nunc pro tunc in 1918, he does not now have a status which entitles him to depart from the United States and reenter, to apply for United States Citizenship or to take advantage of any other privilege normally available to a lawful permanent resident; that he does not have an effective subsisting useable status as an alien lawfully admitted for permanent residence who has not subsequently committed acts which would render him subject to deportation; and that the phrase in section 249 "if no such record is otherwise available" means there must be available to a section 249 applicant a record of admission for permanent residence as fully effective as on the day he was lawfully admitted.

The special inquiry officer denied the motion to reopen for adjustment of status under section 249 of the Immigration and Nationality Act on the ground that in the instant case, a record of respondent's lawful admission for permanent residence is available and consequently he would not come within the purview of section 249. In addition, the special inquiry officer cited Matter of S,-6 I. & N. Dec. 392, in which the Board held that the status of one lawfully admitted for permanent residence is not vitiated by the fact that he may subsequently have become deportable.

Section 249 of the Immigration and Nationality Act, as amended by the Act of August 8, 1958 (Public Law 85-616, 72 Stat. 546),1 provides as follows:

A record of lawful admission for permanent residence may, in the discretion of the Attorney General and under such regulations as he may prescribe, be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney 18 U.S.C. 1259 (C.A.P.P. 1961).