gration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens." This statutory provision was in effect when the respondent was convicted on May 8, 1936. At that time, he was actually a national of the United States. For the purpose of the Immigration Act of 1917, however, he was to be considered as if he were an alien. For that reason, the Costello decision is not controlling in the respondent's case.

We have also considered the possible applicability to the respondent's case of Mangaoang v. Boyd, 205 F.2d 553 (9th Cir., 1953), cert. den. 346 U.S. 876. When that case was before this Board, we had held that he was deportable under the Act of 1918, as amended by the Internal Security Act of 1950, upon a finding that he had been a member of the Communist Party from about February 1938 to December 1939. Matter of M-, 4 I. & N. Dec. 569 (1951). Mangaoang arrived in continental United States for permanent residence in 1926 and had never left this country. In concluding that Mangaoang was not deportable, the Court of Appeals was of the opinion that it was necessary, under the Act of 1918 as amended in 1950, for membership in the Communist Party and alienage to exist simultaneously. However, the decision was also based on other factors, that is, the possible doubt as to whether the reference in the Act of March 24, 1934 to all other immigration laws would apply to the legislation enacted in 1950; the fact that the 1934 legislation became completely obsolete on July 4, 1946; the question of whether the word "aliens" in the 1950 Act was broad enough to include persons who were actually nationals of the United States but who were to be considered as if they were aliens under the Act of March 24, 1934; and the fact that Mangaoang's arrival in continental United States in 1926, being prior to the 1934 Act, did not constitute an "entry" for immigration purposes since he was not then an alien for any purpose but was a national of the United States. In view of these other factors involved in the Mangaoang case, we do not consider that case to be analogous to that of the respondent.

When the respondent last entered the United States on January 15, 1950, he was an alien for all purposes and he was then excludable under section 3 of the Immigration Act of 1917 as a person who had been convicted of a crime involving moral turpitude. Accordingly, we adhere to the conclusion in our order of January 29, 1959 that the respondent is deportable on the charge stated above. In that order, we stated that the respondent met the statutory requirements under 8 U.S.C. 1182 (c) but that relief was denied in the exercise of discretion. Counsel's motion seeks reconsideration of the respond

ent's application under 8 U.S.C. 1255. In view of the foregoing, we will withdraw the special inquiry officer's order terminating the deportation proceeding and will reopen the hearing in order that the respondent may be afforded a further opportunity to submit such applications as appropriate for relief from deportation. The Service and the respondent may present any pertinent evidence.

ORDER: It is ordered that the special inquiry officer's order of April 19, 1965, terminating the deportation proceeding, be withdrawn.

It is further ordered that the hearing be reopened for further proceedings in accordance with the foregoing and that the case be remanded to the special inquiry officer.

MATTER OF SMITH

In Section 212 (c) Proceedings

A-10005876

Decided by Board October 8, 1965

An alien's application for a section 212 (c) waiver can be considered by a special inquiry officer in conjunction with an application for adjustment of status under section 245, Immigration and Nationality Act, as amended, in deportation proceedings.

The applicant, a native of England, a citizen of Great Britain, appeals from the denial of an application for advance permission to return to an unrelinquished domicile pursuant to a waiver under section 212(c) of the Immigration and Nationality Act (8 U.S.C. 1182 (c)). Counsel on appeal urges that the action taken by the District Director at New York is an abuse of discretion. He also urges a remand of the case to the District Director in light of additional evidence alleged to be material to the issue before us.

The applicant, a male alien 34 years of age, last entered the United States through the port of Buffalo, New York on June 19, 1956. He was admitted for permanent residence upon presentation of an immigration visa issued at Toronto, Canada on June 13, 1956.

An order to show cause in deportation proceedings was issued by the Assistant District Director at New York on March 1, 1962. It charges that the applicant is deportable under section 241 (a) (4) of the Immigration and Nationality Act as an alien who after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The charge is based upon a showing that the applicant was convicted in the Felony Court of Manhattan, New York on January 28, 1960 for the offense of disorderly conduct in violation of section 722, subdivision 8, of the New York Penal Code. The applicant was again convicted in the Felony Court of Manhattan, New York on February 6, 1962 for a violation of the same statute.

During the course of the hearing (p. 27) accorded the applicant in deportation proceedings on December 8, 1964, his then counsel

submitted an application for adjustment of status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) pursuant to a decision by the Court of Appeals for the Second Circuit in the case of Hans Werner Tibke v. Immigration and Naturalization Service. It was also stated for the record that the applicant would apply for an exercise of the discretion contained in section 212(c) of the Immigration and Nationality Act in connection with his application for an adjustment of status under the provisions of section 245 (supra), (p. 28). The special inquiry officer adjourned the hearing without decision for the conduct of investigations by the Immigration Service in connection with the application for relief under section 245 of the Immigration and Nationality Act.

An application for advance permission to return to an unrelinquished domicile pursuant to a waiver of the grounds of inadmissibility under section 212 (c) of the Immigration and Nationality Act (supra) was received by the District Director at New York on January 29, 1965. The application states in substance that the applicant may be inadmissible by reason of his convictions in New York State on January 28, 1960 and February 6, 1962 for violation of subdivision 8 of section 722 of the Penal Code of New York (disorderly conduct) committed on January 28, 1960 and January 20, 1962 and that the Attorney General in his discretion may not adjust his status under section 245 apparently for the reason that without the waiver he would be ineligible to receive an immigration visa and re-enter the United States. The District Director denied the application on the ground that the applicant does not warrant the favorable exercise of discretion in his case because of two criminal convictions within the past five years.

The Service maintains that counsel is attempting to use a deportation case as a vehicle for obtaining relief which is by statute limited to an exclusion proceeding. It is their position that a waiver under section 212(c) of the Immigration and Nationality Act is not available to an applicant for a change of status under section 245 of the Immigration and Nationality Act because such an applicant is not an alien previously lawfully admitted who temporarily proceeds abroad voluntarily and not under an order of deportation and who is returning to a lawful unrelinquished domicle of seven consecutive years.

An applicant for adjustment of status under section 245 stands in

1335 F.2d 42, July 9, 1964. The Tibke case holds in substance that section 245 is not limited to aliens who entered as nonimmigrants (other than alien crewmen), and that aliens who entered as immigrants for permanent residence may apply for relief thereunder.

the same position as an applicant who seeks to enter the United States with an immigration visa for permanent residence. Such an applicant must under the regulations submit to all of the tests as if he were an applicant at a port of entry (8 CFR 245.5). Since this respondent, as an applicant for relief under section 245, is subject to all of the exclusion provisions of section 212(a), we find no valid reason for denying him the benefits of section 212(c) on the technical ground that he is not returning to the United States after a voluntary departure. Such a conclusion is not required by the statute and would ignore substance for procedure. In fact, there is a provision in 8 CFR 212.3 which permits an application for relief under section 212(c) to be adjudicated in a deportation proceeding.

The Notice of Appeal submitted by respondent's original counsel urges error in that the special inquiry officer improperly refused to consider the applicant's application for advance permission to return to an unrelinquished domicile in conjunction with the applicant's application for an adjustment of status under section 245 (supra). Counsel now of record has submitted evidence to this Board that the applicant is now married to an alleged United States citizen. Counsel maintains that this evidence warrants remanding the case to the New York District. It is not clear whether counsel refers to a remand to the District Director at New York or to the special inquiry officer who held the hearing in deportation proceedings on December 8, 1964.

The proper procedure in a deportation case in which an alien applies for a waiver of a ground of inadmissibility in connection with an application for an adjustment of his immigration status pursuant to the provisions of section 245 of the Immigration and Nationality Act is for the special inquiry officer to fully consider and adjudicate the issue of deportability and the application for relief under section 245. It is also required that the special inquiry officer fully consider and adjudicate an application for a waiver under section 212 (c) of the Immigration and Nationality Act (8 U.S.C. 1182 (c)) in such a proceeding in light of the court's ruling in the Tibke case (supra). Accordingly, we will remand the record to the special inquiry officer for further consideration in accordance with the foregoing.

The respondent in this proceeding may also apply for relief under section 212(g) of the Immigration and Nationality Act (8 U.S.C. 1182(g)) to waive his present inadmissibility provided he is lawfully married to a United States citizen. Matter of M-, 8 I. & N. Dec. 285, Asst. Com., March 20, 1959. He should be permitted to pursue this administrative remedy in conjunction with his application for a change of status under section 245 if he so desires.