EDWARDS

Interim Decision #3134

MATTER OF EDWARDS
In Deportation Proceedings
A-18274740

Decided by Board May 2, 1990

(1)A clear showing of reformation is not an absolute prerequisite to a favorable exercise
of discretion in every section 212(c) application involving an alien with a criminal
record; therefore, section 212(c) applications involving convicted aliens must be
evaluated on a case-by-case basis, with rehabilitation a factor to be considered in the
exercise of discretion. Matter of Buscemi, 19 MN Dec. 628 (B1A 1988); and Matter of
Morin, 16 I&N Dec. 581 (BIA 1978), clarified.
(2) A proper determination as to whether an alien has demonstrated unusual or
outstanding equities in a section 212(c) application can only be made after a complete
review of the favorable factors in his case, and, therefore, the use of the term
"threshold test" is deemed to be inappropriate in this context, as it might be
interpreted to imply that a full examination of an alien's equities can somehow be
pretermitted. Matter of Buscemi, supra, clarified.
CHARGE:
Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11))—Convicted of-controlled
substance violation
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Fernando Colon-Navarro, Esquire Patricia B. Feeney
Harvard Law Clinic General Attorney
264 Third Street
Cambridge, Massachusetts 02142
BY: Milhollan, Chairman; Dunne and Vacca, Board Members. Concurring Opinion:
Morris, Board Member. Concurring in part and dissenting in part: Heilman,
Board Member.

In a decision rendered on August 17, 1989, the immigration judge
found the respondent deportable, based upon his admissions, on the
charge set forth above, denied his application for a waiver of
inadmissibility under section 212(c) of the Immigration and Nationali-
ty Act, 8 U.S.C. § 1182(c) (1988), and ordered him deported from the
United States to Barbados. The respondent, through counsel, has
appealed from that decision only with respect to the denial of relief
from deportation. The appeal will be dismissed.
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The respondent is a 44-year-old native and citizen of Barbados, who
was admitted to this country as a lawful permanent resident in 1968.
The record reflects that he is married to a United States citizen and
that has four United States citizen children. It further shows that he
incurred the following criminal convictions while in this country:
attempted burglary (1977); third degree burglary, larceny, possession
of burglary tools, and possession of stolen property (1979); attempted
burglary (1981); possession of a controlled substance (1985); posses-
sion with intent to distribute a controlled substance (two counts),
intentional distribution of a controlled substance (three counts), and
conspiracy to distribute a controlled substance (one count) (1987).' In
total, the respondent served some 2 1/2 years as a result of his criminal
convictions, including a 1-year period stemming from his 1987
convictions, for which he was actually sentenced to concurrent terms
of 3 to 5 years.2
At the deportation hearing, the respondent testified that he began
abusing controlled substances in 1977, and he intimated that this vice
formed the basis of his criminal record. He indicated that while
incarcerated during the 1979 to 1981 period, he attended weekly drug
rehabilitation sessions. He related that after his release from prison, he
managed to remain free from drugs for 3 1/2 years, but that he
eventually began to use them again due to family, financial, and legal
difficulties. The respondent advised that he sold heroin during 1986
solely to support his own drug habit. He stated that he participated in
weekly drug counselling sessions while in prison as a result of his 1987
convictions. He further testified that subsequent to his release from
prison, he continued to attend a treatment program on a weekly basis.
The respondent conceded that he used heroin in approximately August
1988, and that he tested positive for morphine in November 1988. He
indicated that before he was able to begin tri-weekly counselling
sessions, as suggested by his parole officer, the Immigration and
Naturalization Service issued a warrant for his arrest. He advised that
he planned to return to a treatment program after his release from
Service detention. The respondent said that he would not abuse
controlled substances again because he did not want to hurt his family.
In this regard, he also cited a fear of Acquired Immune Deficiency
1 We observe that the record is inconsistent with respect to the number and nature of
the respondent's criminal convictions. Therefore, in a decision limited to this particular
matter, we have adopted the list compiled by the respondent's own counsel in his
appellate brief. as he presumably was in the best position. after a review of the
proceedings below, to verify the various convictions.
2 The record reflects that during the final 3 to 4 months of his most recent period of
confinement, the respondent was released to a halfway house.

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Syndrome and noted that, due to his high blood pressure, continued
abuse of controlled substances would be fatal to him.
With respect to his history of employment, the respondent advised
that when he first came to this country, he worked in a nursing home
for 10 years until 1977. He testified that his next job was as a taxicab
driver, an occupation in which he remained for less than a year
following his release from prison in 1981. He noted that he subse-
quently worked at a die casting company for 2 1/2 years until 1985,
when he was injured in a job-related accident. He related that he
received workmen's compensation for approximately 1 year. The
respondent said that he was unemployed during the period leading up
to his 1987 convictions, that he sold drugs during this time, and that
his spouse supported him. He stated that upon his release from prison
to a halfway house, he worked as a kiln operator until he was laid off,
i.e., from December 1987 until August 1988. He declared that he then
earned money as a self-employed worker in the demolition and
cleaning industry. He observed that he planned to return to this
occupation upon his release from Service detention.
The respondent implored that he be allowed to remain in the
United States because of his family. He insisted that he would work
hard to change his ways. He related that his wife and children, as well
as his mother and siblings, resided here and that, he knew no one in
Barbados. He asserted that it would be very difficult for him to find
employment in Barbados because of his age. He recounted that he had
discussed the possibility of returning to Barbados with his wife, but
that his family would be unable to accompany him because his
children were in school and Barbados lacked special educational
facilities for his autistic son.
In addition, the respondent offered the testimony of his wife on his
behalf. She stated that she worked as a part-time aide at the school of
her autistic son. She advised that she would not accompany her
husband to Barbados as that country lacked the special educational
facilities required for her autistic son. She related that the respondent
was a good father and that he had changed for the better since his
release from prison. She declared that she and her children had
received public assistance since 1982, although her husband also had
provided some support.
Besides testimony, a number of documents were entered into
evidence. These documents include the case notes of the respondent's
Massachusetts parole officer, covering the period from February 8,
1988, to January 26, 1989. There also is a letter from the Massachu-
setts Public Welfare Department, dated March 16, 1989, which
describes the assistance given to the respondent's wife and children,
and which opines that if the respondent is allowed to remain in this

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country, there would be numerous benefits to his family, including
providing his children with two parents, and giving the family an
opportunity to become independent of the public welfare system.
Finally, the documentary evidence also comprises a medical report,
dated January 21, 1988, confirming that the respondent's son has an
autistic disorder.
In his decision, the immigration judge determined that the respon-
dent was statutorily eligible for a. section 212(e) waiver. However, he
denied that relief in the exercise of discretion. He reasoned that the
serious negative factor of the respondent's criminal convictions could
only be overcome by a showing of unusual or outstanding equities,
together with a demonstration of rehabilitation. He concluded that the
respondent had failed to establish either of these requirements.
On appeal, the respondent argues that the immigration judge erred
by failing to consider all of the favorable factors presented in his case.
He asserts that he demonstrated unusual and outstanding equities. He
further contends that the immigration judge should have allowed him
to submit evidence regarding the nature and circumstances of his
criminal convictions. He points out that his criminal record resulted
from his need to support his drug habit rather than a desire to make
profits. Moreover, he argues that the immigration judge placed undue
weight on the factor of rehabilitation. He explains that, as a practical
matter, the immigration judge based the denial of relief solely on the
issue of whether he had been rehabilitated with respect to his
controlled substance dependency. He indicates that it was improper to
preclude relief on this basis because he was in Service detention and
therefore was unable to enter a treatment facility, as had been
previously arranged. Finally, the respondent contends that the immi-
gration judge improperly relied on the parole officer's report.
For its part, the Service argues that the decision of the immigration
judge is correct. It asserts, inter alia, that the respondent failed to make
the requisite showing of unusual or outstanding equities.
Section 212(c) of the Act 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 7 consecutive years,
may be admitted in the discretion of the Attorney General without
regard to certain specified grounds of exclusion. In light of our
decision in Matter of Silva, 16 l&N Dec. 26 (BIA 1976), a lawful
permanent resident is prima facie eligible for relief from deportation
under section 212(c), even though he has not proceeded abroad
subsequent to the acts which rendered him deportable. See Francis v.
INS, 532 F.2d 268 (2d Cir. 1976).
Section 212(c) of the Act, however, does not provide an indiscrimi-
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nate 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 alien merits the relief sought, and
the alien bears the burden of demonstrating that his application
warrants favorable consideration. Matter of Marin, 16 JAN Dec. 581,
582-83 (BIA 1978).
The exercise of discretion in a particular case necessarily requires
consideration of all the facts and circumstances involved. There must
be a balancing of the social and humane considerations presented in an
alien's favor against the adverse factors evidencing his undesirability
as a permanent resident. Id. at 584. The Board has enunciated
numerous factors to be considered in determining whether or not to
grant section 212(c) relief. Favorable considerations have been found
to include such factors as family ties within the United States,
residence of long duration in this country (particularly when the
inception of residence occurred at a young age), evidence of hardship
to the respondent and his family if deportation occurs, service in this
country's armed forces, a history of employment, the existence of
property or business ties, evidence of value and service to the
community, proof of genuine rehabilitation if a criminal record exists,
and other evidence attesting to a respondent's good character. Id. at
584 85. Among the factors deemed adverse to an alien are the nature
and underlying circumstances of the exclusion or deportation 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. Id. at 584. Moreover, one or
more of these adverse considerations may ultimately be determinative
of whether section 212(c) relief is in fact granted in an individual case.
Id.
We also have pointed out that as the negative factors grow more
serious, it becomes incumbent upon the alien to introduce additional
offsetting favorable evidence, which in some cases may have to involve
unusual or outstanding equities. Id. at 585. Such a heightened showing
is required when an alien has been convicted of a serious drug offense,
particularly one relating to the trafficking or sale of drugs. Id. at 586
n.4. The necessity of demonstrating unusual or outstanding equities is
not exclusively triggered by serious crimes involving controlled
substances, however. Rather, one must examine the gravity of the
offense per se. Matter of Buscemi, 19 I&N Dec. 628, at 633 (BIA
1988); see also Matter of Merin, supra. In addition, such a showing
may be mandated because of a single serious crime, or because of a
succession of criminal acts which together establish a pattern of serious
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criminal misconduct. Matter of Buscemi, supra, at 633-34. We observe
that an alien who demonstrates unusual or outstanding equities, as
required, does not compel a favorable exercise of discretion; rather,
absent such equities, relief will not be granted in the exercise of
diScretion. 3 Id.; see also Matter of Marin, supra. There are cases in
which the adverse considerations are so serious that a favorable
exercise of discretion is not warranted even in the face of unusual or
outstanding equities. Such was the situation in Matter of Buscemi,
supra.
With respect to the issue of rehabilitation, the Board noted in
Matter of Marin, supra, at 588, and reiterated in Matter of Buscemi,
supra, at 633-34, that a section 212(c) waiver applicant who has a
criminal record "ordinarily" will be required to make a showing of
rehabilitation before relief will be granted as a matter of discretion.
This language has been interpreted in some cases as though a clear
showing of reformation is an absolute prerequisite to a favorable
exercise of discretion in every case involving an alien with a criminal
record. To the extent that this language may be read as creating an
absolute prerequisite to a favorable exercise of discretion, we withdraw
from it. Rather, section 212(c) applications involving convicted aliens
must be evaluated on a case-by-case basis, with rehabilitation a factor
to be considered in the exercise of discretion_
In regard to the matter before us, we point out that we have
reviewed the record on a de novo basis. Accordingly, the respondent
has not suffered any prejudice due to the immigration judge's alleged
errors in failing to consider all of the favorable evidence on his behalf
or by placing an undue burden upon him regarding rehabilitation.
Moreover, we observe that, for purposes of expediency, we have not
relied on the report of the respondent's parole officer in rendering our
decision. Consequently, we make no ruling as to the proper evidential
weight which should have been accorded to the document or whether,
in fact, it should have been accepted into evidence in the first in-
stance.4
3 1n Matter of Buscenn, supra, at 634, we stated that an alien who makes a required
showing of unusual or outstanding equities merely satisfies the "threshold test for having
a favorable exercise of discretion considered in his case." Upon review, we find this
language to be misleading, as it might be read to imply that a full examination of an
alien's equities can somehow be pretermitted. On the contrary, a proper determination
as to whether an alien has demonstrated unusual or outstanding equities can only be
made after a complete review of the favorable factors in his case. Accordingly, we have
eliminated the offending language from our legal analysis.
4 We note in passing, however, that because the respondent did not object to the entry
of this document into evidence at Me hearing below, it is not appropriate for him to
object on appeal. Cf. Matter ofSamai,17 l&N Dec. 242 (BIA 1980) (objection raised for
first time on appeal concerning improper notice of deportation hearing). Further, we

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Additionally, while it is true that the immigration judge initially
noted that he would not hear testimony as to the respondent's
motivation for his crimes, the respondent ultimately was able to
indicate for the record that he engaged in criminal conduct in order to
support his drug habit. See Matter of M , 3 I&N Dec. 804, 805 (BIA
-

1949) (matter involving the seventh proviso to section 3 of the
Immigration Act of 1917) (while the Board will not go behind a record
of conviction to reassess an alien's ultimate guilt or innocence, inquiry
may be had into the circumstances surrounding the commission of the
crime in order to determine whether a favorable exercise of discretion
is warranted). Therefore, the respondent did not suffer prejudice. We
also point out that, at the time the immigration judge rendered his
interlocutory ruling, the respondent's counsel expressed agreement
with it.
In analyzing the respondent's application for a section 212(c)
waiver, we note that his statutory eligibility for that relief has not been
contested. In regard to the exercise of discretion, we consider that the
respondent possesses an extensive criminal record covering the period
from 1977 until 1987, including convictions for burglary and attempt-
ed burglary, possession of a controlled substance, possession with
intent to distribute a controlled substance, and intentional distribution
of a controlled substance. The respondent's overall 10-year pattern of
criminal misconduct, as well as his controlled substance distribution
offenses, each independently require that he demonstrate unusual or
outstanding equities if he is to have the possibility of receiving a
favorable exercise of discretion.
In the respondent's favor we take into account the fact that he has
resided in this country for approximately 22 years. We note that he is
married to a United States citizen, that he has four United States
citizen children, that his mother and siblings reside in this country,
and that he apparently has no family remaining in Barbados. We
observe that the respondent's wife declared that he is a good father.
We acknowledge that his family will suffer emotional hardship if he is
deported to Barbados. We are aware of the special hardship that the
respondent's autistic child may suffer from a separation. In sum, we
conclude that these equities cumulatively rise to the level of the
unusual or outstanding.
In regard to other alleged favorable equities forwarded by the
consider that the respondent, while attacking the propriety of that document, at the
same time takes the somewhat contradictory position in his Notice of Appeal (Form
290A) that the immigration judge failed to consider favorable information contained in
the document. In any event, we observe that the favorable information found in the
document is simply repetitive of that which appears elsewhere in the record.
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respondent, however, we note that he has neglected to submit any
evidence to support his conclusory allegation that he will be unable to
find work in Barbados because of his age. In terms of the financial
hardship that his family may face due to his deportation, we consider
that they received support from the public welfare system before the
respondent encountered any difficulties with our immigration laws.
He has not shown that their financial situation will be materially
exacerbated if he is forced to depart from this country.
Turning to the issue of rehabilitation, we find it to be a significant
factor in view of the nature and extent of the respondent's criminal
history. Specifically, he has a record of offenses extending from 1977
until 1987, including convictions for controlled substance distribution.
He attributed these crimes to his need to support his drug habit. While
such a claim may tend to show that the respondent is not an inherently
evil person, we still must consider the safety of our society. Regardless
of the respondent's motivation, the community still will suffer the
consequences of any future criminal behavior on his part.
At the hearing, the respondent promised that he would try to mend
his ways. He renounced further controlled substance abuse because of
the adverse effect on his family and because of the dangers to his own
health. He participated in a number of treatment programs, including
one at the time of his detention by the Service. Although the
respondent appears to have been able to free himself from drugs for
various periods of time, we note that he ultimately was unsuccessful in
his quest. For example, we consider that while on parole and
participating in a treatment program after his most recent period of
incarceration, the respondent used controlled substances on at least
two occasions, in August and November 1988. Consequently, on the
record before us, we determine that he failed in his attempt to
rehabilitate himself.
While it is unfortunate that the respondent apparently has not been
able to participate in a controlled substance treatment program while
in Service detention, we reject the respondent's suggestion that this
fact bars a finding that he has not rehabilitated himself. See Matter of
Maria, supra, at 588 89 (while it is more difficult for confined aliens to
-

establish rehabilitation than those who are at liberty, this does not
result in a violation of their constitutional rights). Further, we observe
that the respondent was able to participate in a treatment program
directly prior to his detention by the Service. However, he wasted this
opportunity by continuing his use of controlled substances on at least
two occasions during this period.
In balancing the various factors in the respondent's case, we take
note of his favorable equities, which we found to be unusual or
outstanding. However, when we weigh these equities against the
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adverse factors of his extensive criminal record, which includes
controlled substance distribution offenses, and our lack of confidence
as to his rehabilitation, we determine that a favorable exercise of
discretion is not warranted.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

CONCURRING OPINION: James P. Morris, Board Member
I respectfully concur.
I fully concur with and join in the Board's order with respect to both
its rationale and the result reached. However, I wish to elaborate on
two points which apparently have caused some confusion in the
application of our prior decisions.
The first point is the Board's position with respect to weighing the
equities in the course of exercising its discretion regarding an applicant
for relief under section 212(c) who has been convicted of a serious
crime or a succession of criminal acts which together establish a
pattern of serious criminal misconduct. In Matter of Marin, 16 I&N
Dec. 581 (BIA 1978), we pointed out that such an alien may be
required to show unusual or outstanding equities in order to receive
favorable consideration of his application. While the intention of the
Board in this holding appears to be clear enough, it nevertheless
caused misperceptions in some quarters, with the assumption being
made that if unusual or outstanding equities could be shown, relief
under section 212(c) would follow.
In the hope of clarifying its position, the Board subsequently
published its decision in Matter of Buscemi, 19 I&N Dec. 628 (BIA
1988). There we pointed out that the fact that an alien has demon-
strated unusual or outstanding equities does not compel a favorable
exercise of discretion. Rather, we held that an alien with a serious
criminal record who failed to make a showing of unusual or
outstanding equities had not met a threshold test to be considered for
relief under section 212(c). The Board holds in the present case that
consideration of an application for relief under section 212(c) may not
be pretermitted, but that a complete review of favorable factors must
be made before a proper determination can be made as to whether or
not the alien has established unusual or outstanding equities.
Aside from the problem of pretermission of waiver requests, the use
of the phrase "unusual or outstanding equities" causes some other
difficulties. First, there is no need to determine whether or not the
equity is unusual. It is the weight of the equity that is significant, not
the frequency with which it may occur. Therefore, I would not treat the
unusual nature of the equity as a significant factor. With regard to

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evaluating equities as "outstanding," there has been a problem of
definition. For example, 7 years as a lawful permanent resident is a
statutory minimum requirement, and therefore, that period of resi-
dence logically would not be regarded as an outstanding equity,
whereas 25 years of residence ordinarily would be considered to be an
outstanding equity. But as time passes beyond the required 7 years, the
question arises as to when the period of residence, per se, becomes an
outstanding equity. We clearly should not pinpoint a specific period,
e.g., 14 years, because the quality of the residence should also be
considered in determining its weight. Similarly, there is no formula for
determining the number and type of United States citizen and lawful
permanent resident relatives who may constitute an outstanding
equity. For these reasons, I would not attempt to assign a value of
"outstanding" to any particular equity. I believe that the appropriate
method for addressing the equities is to evaluate all of them, assigning
weight or importance to each one separately and then to all of them
cumulatively. They should then be balanced against the adverse
factors, which should also be evaluated cumulatively. It is at this point
that an alien who has been convicted of a serious crime may be granted
a favorable exercise of discretion under section 212(c) because his
equities are "outstanding" and are of sufficient weight to override the
adverse factors present in his case. When the alien's equities are fully
and properly evaluated and it has been determined that they are not of
sufficient weight to overcome the adverse factors of record, there is
little point in designating them as "outstanding."
The second area of confusion flowing from the Board's decisions in
these cases involves the issue of rehabilitation. The Board's order
points out that language used in Matter of Marin, supra, and Matter of
Buscemi, supra, has been interpreted in some cases as though a clear
showing of reformation is an absolute prerequisite to a favorable
exercise of discretion in every case involving an alien with a criminal
record. The Board then withdraws from the language in those cases to
the extent that it may be read as creating an absolute prerequisite to a
favorable exercise of discretion. I agree with the position the Board has
taken in that regard in the present case. I would emphasize, however,
that the issue is mostly one of proof. The alien may have a clear record
since his conviction and may have taken positive steps to establish
rehabilitation; yet, because of incarceration, the length of time since
his conviction, or some other reason, he may be unable to establish
convincingly that he has been rehabilitated. While such evidence
would not carry the same weight as evidence demonstrating complete
rehabilitation, his efforts may be considered, and he is not barred
automatically from discretionary relief. On the other hand, if an alien
has been convicted of a serious crime, and the evidence suggests that
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he has not been rehabilitated, a favorable exercise of discretion would
be inappropriate. For example, where the alien, since his conviction,
has engaged in further criminal activity, has used or dealt in illicit
drugs, or has associated with criminal elements, those circumstances
would indicate that the alien is unrehabilitated and is undeserving of a
favorable exercise of discretion, even though his equities may be highly
favorable and he may be able to show that he has taken steps which
ordinarily might lead to a finding of rehabilitation.
In sum, I believe that it is the Board's purpose to provide guidance
in the exercise of discretion in these areas but that it is not the Board's
intention to provide a formula that should be rigidly followed.

CONCURRING IN PART AND DISSENTING IN PART:
Michael J. Heilman, Board Member

I respectfully concur in part and dissent in part.
I agree with the major purpose and conclusion expressed in the
majority opinion. There is one part of the opinion, however, that could
easily sow more confusion and more difficulty. That is the part of the
majority opinion that finds certain of the respondent's equities to
"cumulatively" use to the level of "unusual or outstanding." It may
well be that any attempt to formulate a method for exercising
"discretion" is doomed to be either too broad or too narrow, and that
rough formulas may be all one can devise. It seems to me, however,
that in Matter of Malin, 16 I&N Dec. 581 (BIA 1978), as well as in
Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988), it was fairly clear that
the term "outstanding or unusual" equities was not itself confusing.
The majority opinion does not attempt to clarify or explain that term.
Unfortunately, however, as a result of the majority opinion in this
case, vie may well find ourselves having to explain our use of the term
in its application to the equities in this case. The majority uses that
term in a manner not previously employed. It appears to find that a
number of equities, some of which in themselves are in no sense
"unusual or outstanding," become so by an apparent mathematical
operation. The declaration of the respondent's wife that he is a "good
father" is surely evidence of a laudable quality. Likewise, the
possibility that the family might suffer "emotional hardship" is a
factor to be taken into account. But why these "equities" become
equities of the highest quality is never explained, although the clear
implication of the majority's discussion is that this occurs through the
process of addition. It would thus appear that the majority is
presenting the option to applicants to establish the existence of
"unusual or outstanding" equities by presenting a certain number of
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equities of a lesser magnitude which "cumulatively" will be trans-
formed into equities of a higher level.
On its face, this optional approach presents some rather daunting
problems. Initially, it implicitly abandons the approach taken in both
Matter of Math!, supra, and Matter of Buscemi, supra, which seemed
to require an identification of individual "unusual or outstanding"
equities, in the absence of which an applicant could not overcome
highly adverse factors. This approach at least had the virtue of an
"objective" standard in judging equities, which would apply equally to
a drug trafficker and an armed robber. For example, in most instances,
it would allow one to consider 20 years of permanent residence an
"outstanding" equity.
The "cumulative" approach, however, would allow one to deter-
mine that no individual "unusual or outstanding" equities existed, and
then allow one to nonetheless grant the waiver because a certain
number of more mundane equities were presented. To my knowledge,
neither Matter of Marin, supra, nor Matter of Buscemi, supra, has been
construed to provide this option.
In my estimation, this optional approach would in fact take us back
to the situation which existed prior to the publication of Matter of
Maria, supra. I would not do that and so do not join in that portion of
the majority opinion.