GORDON

Interim Decision #2795

MATTER OF GORDON
In Section 212(c) Proceedings

A.-31446671
Decided by Board June 6, 1980

(1) In its elementary form, an application for a section 212(c) waiver concerns a present
application for readmission to the United States following a temporary absence or an
advance waiver in contemplation of a future absence.
(2) Although it was an accepted principle that an alien might obtain a section 212(c)
waiver in the course of deportation proceedings with retroactive effect to cure a past
illegal reentry, the benefit is now held to be available in a deportation proceeding to
nullify deportability due to a criminal conviction in the case of an alien who had the
requisite period of lawful permanent domicile even if there has not been a reentry.
Matter of Grouulos, 16 I&N Dec. 726 (BIA 1979), reaffirmed.
(3) Where the Service invited an application for a section 212(c) waiver, not as part of a
deportation or an exclusion proceeding, and not in contemplation of the alien's
departure from the United States and return (ie., la a vacuum"), the procedure is
held to be unfair and unreasonable inasmuch as the letter of invitation threatened
deportation proceedings within 30 days, and the applicant was not made aware of her
burden of proof.
(4) Where an unfair procedure induced the filing of a section 212(c) application "in a
vacuum," the resulting adverse discretionary determination by the District Director
is set aside, and proceedings terminated.
ON BEHALF OF APPLICANT: On BEHALF OF SERVICE
Joseph M. Tapper, Esquire Jim Tom Haynes
410 Asylum Street, Room 424 Appellate Trial Attorney
Hartford, Connecticut 06103
BY: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members. Concurring
Opinion, Appleman, Board Member

The applicant has appealed from a decision of the District Director,
dated August 16, 1979, denying her application for advance permission
to return to an unrelinquished domicile pursuant to section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. 1182(c). She contends
that a letter of instruction from the District Director, received just
after her conviction, improperly induced her to file the application
prematurely, to her detriment. The order of the District Director will
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be set aside, and the proceedings will be terminated.
The applicant is a 22-year-old native and citizen of the United
Kingdom who was admitted to the United States as a lawful
permanent resident on June 27, 1971. The record indicates that she has
not departed from the United States since that entry.
On August 25, 1978, the applicant was convicted of obtaining
property by false pretenses and sentenced to jail for a period of 1 year.
After 4 months of that sentence had been served, it was suspended and
she was placed on probation for a period of 2 years. On October 18,
1978, she was convicted of conspiracy, criminal impersonation, forgery,
and larceny:This time she was sentenced to GO days in jail for each
offense, the sentences to be served concurrently.
As a result of these convictions, the District Director decided that
the applicant might be deportable under section 241 of the Act, 8 U.S.C.
1251. instead of starting deportation proceedings against her, how-
ever, he sent the following letter to her.
It has been determined you may be deportable under section 241 of the Immigration
and Nationality Aat because you were convicted of a violation or violations of law_
Recent court decisions and subsequent changes in Service policy now allow you to
apply for advance permission to return to an unrelinquished domicile in the United
States. An application is enclosed for that purpose, the fee for which is $50.00.
Please read and follow carefully the instructions on the reverse of the form. Your
application can be adjudicated even though you haven't actually departed from the
United States. Your application will be reviewed and if you are found eligible for the
waiver, no further action will be taken in your case.
The application must be filed within thirty days of receipt of this letter.
In response to the District Director's letter, the applicant, not then
represented, filed the subject application for a waiver of excludability
under section 212(c) of the Act on April 11, 1979.
The District Director denied the application, however, because of the
applicant's criminal record and the absence of any showing of
rehabilitation. The District Director also noted that the applicant had
not submitted supporting documentation to persuade him to exercise
his discretionary authority favorably.
On appeal, the applicant contends that the District Director should
not have invited an application for a waiver under section 212(e) in
advance of deportation or exclusion proceedings in the circumstances
of this case. She argues, therefore, that the District Director's adverse
decision should be set aside. We agree.
Section 212(c) provides that 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 7 consecutive years, may be admitted in the
discretion of the Attorney General without regard to certain specified
grounds for exclusion of section 212.
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In its elementary form, an application for a section 212(c) waiver
concerns a present application for readmission to the United States
following a temporary absence. An alien may also seek an advance
waiver, in contemplation of a future absence. The first type is essen-
tially forced, since the alternative if the application is not granted will
be exclusion; the second is essentially voluntary.
Recently, a new dimension to the section 212(c) waiver was added.
Although it had been an accepted principle that an alien might obtain
the waiver in the course of deportation proceedings with retroactive
effect to cure a past illegal reentry, the benefit was now held to be
available in a deportation proceeding to nullify deportability due to a
criminal conviction in the case of an alien who had the requisite period
of lawful permanent domicile even if there had not been a reentry_
Francis v. INS, 532 F.2d 268 (2 Cir. 1976); Matter of Granaclos,16 I&N
Dec. 726 (BIA 1979). As in exclusion, the application in these circum-
stances is essentially forced.
As an outgrowth of the Francis-type section 212(c) application, the
Service appears to have engaged in a program to encourage resident
aliens with criminal records which render them technically deport-
able, while not under deportation proceedings, to file applications for
section 212(c) waivers by means of the formal procedure referred to
above as an application for "advance" waiver. Such an application is
essentially voluntary on its face.
In the present case, the letter that the District Director sent to the
applicant declares that she may be deportable because of her criminal
record, that nonetheless she may be able to obtain relief from deporta-
tion, and that she must apply for the relief within 30 days. This last
statement strongly implies that deportation proceedings will follow if
the suggested form of relief is not sought and that the applicant will
only have one chance to apply for it. Moreover, since the Service official
who examined her immigration file solicited a 212(c) application in-
stead of instituting deportation proceedings, it is likely that the appli-
cant did not realize that she would have to satisfy him that she
deserved the waiver. Indeed, she did not submit any supporting docu-
mentation with her application. Consequently, the 212(c) waiver appli-
cation was decided on the basis of an undeveloped record, and the
applicant was left with a formal determination in her file that she had
applied for such relief and had been unable to establish that she
deserved it.
We find that this procedure is unfair and unreasonable. In Matter of
Marin, 16 I&N Dec. 581 (BIA 1978), we noted, at 588:
Confined aliens and those who have recently committed criminal acts will have a more
difficult task in showing that discretionary relief should be exercised in their behalf
than aliens who have committed the same offenses in the more distant past.

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Common sense and prudence suggest that a recently convicted alien
should prefer to let a considerable time elapse before offering to
demonstrate rehabilitation.
The application herein was filed improvidently. Its filing was in-
duced unfairly. The applicant desires not to have added to her future
burdens the record of this discretionary determination that she is
undeserving. Her request is reasonable. We will set aside the denial
order.
ORDER' The decision of the District Director is set aside, and the
proceedings are terminated.
CONCURRING OPINION: Irving A. Appleman, Board Member
I concur in the decision of the majority, but believe the majority
statement that the Service "procedure is unfair and unreasonable"
needs elaboration.
This case involves an "in a vacuum" application under section 212(c)
of the Immigration and Nationality Act, 8 U.S.C. 1182(c). The applica-
tion was made neither as part of a deportation or exclusion proceeding,
nor in advance of a departure from the United States in order to
facilitate a return as a matter of convenience. Matter of WW, 12 I&N
Dec. 736 (BIA 19(i5). It was made by a lawful permanent resident, of the
United States. The logical question presents itself—why was it made
at all? So far as the record before us is concerned, the applicant has no
need for "relief" at this time. If, as, and when an Order to Show Cause
in deportation proceedings issues, and she becomes the subject of a
proper adjudication, in the manner prescribed by law, that she is
deportable and hence here illegally, she may then make an application
for section 212(c) relief pursuant to Francis v. INS, 532 F.2d 268 (2 Cir.
1976); Matter of Silva, Interim Decision 2532 (BIA 1976).
At the same time, it must be recognized that a District Director has
every right, in fact, a duty, to exercise his prosecutive judgment
whether or not to institute a deportation proceeding against an alien
who appears to be illegally in the United States. If, in screening the file
of, and possibly after consultation with, such an alien, it appears to
him that a deportation proceeding would surely result in a grant of
section 212(c) relief under Francis, supra, it would be pointless to
institute an expensive, vexatious, and needless deportation proceeding.
In such a case, I see nothing improper in his noting the record to this
effect, and in declining to issue an Order to Show Cause. This is not a
"grant" of section 212(c) relief. It differs, for example, from suspension
of deportation, which by statute, requires the institution of deporta-
tion proceedings and results in the creation of a new record of lawful
admission. GORDON already has a record of lawful admission. In

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other cases where the District Director grants relief to a deportable
alien prior to a hearing, such as voluntary departure (section 244, 8
U.S.C. 1254), adjustment of status• (section 245, 8 U.S.C. 1255), registry
(section 249, R U.S.C. 1259), etc., his action is authorized by statute or
regulation. No such regulation exists here, nor is there need for one.
On the other hand, if the District Director, after appropriate screen-
ing, decides the alien may not warrant section 212(c) relief, then it is
his prerogative to issue an Order to Show Cause in deportation
proceedings. There the alien may contest, with all the safeguards of
the due process hearing accorded her by statute, the unproved assump-
tion that she is deportable. Once found deportable, she may seek any
relief for which she is eligible.
In contrast, in this case, the District Director entertained an appli-
cation based on an implied finding of deportability, without proper
hearing and possibly without awareness on the part of the alien of the
right guaranteed her by statute to contest such a finding. Her "applica-
tion" was then formally denied in a nonadversary proceeding, with a
recitation of adverse factors. These findings are a part of her file and
can easily result in prejudice in any further proceedings. Her appeal to
this Board was based on an inadequate record and is duplicative, since
the entire process will be repeated in the subsequent deportation
proceeding. If there is to be no subsequent deportation proceeding, this
entire exercise is pointless, and she should have been left alone to enjoy
her lawful permanent status in the first place.
It perhaps exceeds the range of this decision to set forth what should
have occurred. Nevertheless, as a minimum, any notice sent to an alien
as a preliminary to the possible issuance of an Order to Show Cause
and as a result of initial screening for eligibility for section 212(c)
relief should advise that while she "may" be deportable, it may not be
necessary to institute proceedings in view of her 7 years or more of
lawful permanent residence; that to assist in a determination whether
or not to institute a proceeding an interview would be desirable; that
she could have counsel or a representative present if she wished; that
her appearance is entirely voluntary; that this would be merely a
preliminary interview and that she would be given full opportunity
before any final decision was rendered, to contest her deportability at a
hearing, and to make formal application for any relief for which she
might qualify (including section 212(c)). The notice could advise of
appropriate evidence which would assist the District Director in his
determination whether or not to institute proceedings. The notice
could be sent only if it appeared the likelihood of getting the relief was
high, or if it was impossible to make any judgment from the existing
record. A recent and serious crime, with an obvious failure of
rehabilitation and an absence of countervailing equities, such as close
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family ties, might dictate a negative posture and the immediate is-
suance of an Order to Show Cause.
Such a procedure would serve the objectives of both the Service and
the alien—the former in that it would result in a determination to
leave the alien in her present lawful status and to close the file, and the
latter in that she would either have her case put to rest, or could fully
and properly, in the manner provided by law, contest the issues before
an immigration judge. And as a felicitous result, a double review would
be eliminated in the event of an appeal.
Since the procedure in this case was totally defective, I agree it
should be declared a nullity, and have concurred in the majority
decision. The proceedings, in my opinion, are subject to renewal only in
de novo proceedings which conform substantially to the foregoing.

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