Griffiths v. Immigration & Naturalization Service

United States Court of Appeals
For the First Circuit

No. 00-1694

ALWYN COLIN GRIFFITHS,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Stahl and Lynch, Circuit Judges.

Richard L. Iandoli for petitioner.

David M. McConnell, Office of Immigration Litigation,
Civil Division, with whom David W. Ogden, Assistant Attorney
General, Civil Division, Michael P. Lindemann, Assistant
Director, and Terri J. Scadron, Senior Litigation Counsel,
Office of Immigration Litigation, were on brief, for respondent.
March 16, 2001

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 LYNCH, Circuit Judge. The Board of Immigration Appeals found

that Alwyn Colin Griffiths had been "convicted" of a firearms violation

and ordered him deported under § 241(a)(2)(C) of the Immigration and

Nationality Act of 1952, previously codified at 8 U.S.C. §

1251(a)(2)(C). The BIA also denied his request for discretionary

relief from deportation. Griffiths challenges whether the "guilty-

filed" disposition of his firearms violation under Massachusetts law

was sufficiently final to constitute a "conviction" within the meaning

of the INA. Petitioner also challenges the BIA's failure to address

his request for a § 212(h) waiver and the denial of his request for

voluntary departure under § 242. We remand the case to the BIA.

I.

Griffiths, a citizen of Jamaica, has lived as a lawful

resident in this country since 1985. He is the son of a U.S. citizen

mother and a lawful permanent resident father, and is the father of

three minor U.S. citizen children.

In 1990, at eighteen years of age, Griffiths was charged in

the Dorchester District Court with carrying a firearm without a license

and unlawful possession of ammunition, in violation of section 10 of

Chapter 269 of the Massachusetts General Laws. On January 7, 1991, he

was convicted and sentenced to one-year's probation, as well as a

suspended six-month term of imprisonment.

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 On September 19, 1991, the INS ordered Griffiths to show

cause why he should not be deported under former § 241(a)(2)(C) of the

INA, 8 U.S.C. § 1251(a)(2)(C), based on this firearms conviction.1 At

the deportation hearing on October 19, 1992, Griffiths conceded the

INS's factual allegations and deportability, but sought an opportunity

to apply for relief from deportation by way of an adjustment of status

and a § 212(h) waiver of inadmissibility based on purported hardship to

his U.S. citizen family relations. Over the INS's objection, the

immigration judge granted a continuance, and Griffiths filed

applications for adjustment of status and a § 212(h) waiver.

On April 28, 1993, while his deportation case was continued,

the Dorchester District Court granted Griffiths's motion for a new

trial on the firearms offense, which had formed the basis for the

deportation charge. This was two years after his initial conviction

and after he had served his term of probation. The apparent basis for

vacating the conviction was uncertainty over whether a deportation

warning required by state law had been given. After the initial

conviction was vacated, the court reduced the firearms charge from

unlawful carrying a firearm to unlawful possession of a firearm, and

1 In 1991, Griffiths was also charged with (and
ultimately convicted of) assault with a dangerous weapon. This
conviction did not form the basis of the deportation charge, but
is relevant to petitioner's applications for discretionary
relief.

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Griffiths admitted to sufficient facts to support both the revised

firearms and the ammunition charges. The criminal court did not impose

any additional punishment, but found him guilty and placed the criminal

charge "on file."

On April 29, 1993, Griffiths moved to terminate the

deportation proceedings against him, contending that he no longer stood

convicted as alleged in the order to show cause. He argued to the

immigration judge that the "guilty-filed" disposition of the renewed

charges was not sufficiently final to support an order of deportation,

citing Pino v. Landon, 349 U.S. 901 (1955). Petitioner contended that

that disposition of the criminal charge did not qualify as a conviction

under the definition set forth in the BIA decision, Matter of Ozkok, 19

I. & N. Dec. 546 (BIA 1988), which governed at the time. The INS

countered that the portion of the definition in Matter of Ozkok relied

on by petitioner in fact governed only cases where adjudication of

guilt was deferred and thus there was no "formal judgment of guilt"

entered, while in this case the criminal court entered a formal finding

of "guilty," a finding which was sufficient to support a charge of

deportability. On May 7, 1993, the immigration judge found that the

"guilty-filed" disposition was a conviction, mistakenly denied

petitioner a § 212(c) waiver (which is a discretionary waiver based on

equitable factors, and for which Griffiths had not applied), denied

petitioner's request for voluntary departure, and ordered Griffiths

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deported. The immigration judge failed to address petitioner's

application for a § 212(h) waiver, the waiver for which he actually had

applied.

Griffiths timely appealed his deportation order to the BIA,

again contending that the "guilty-filed" disposition was not of

sufficient finality to constitute a conviction for immigration

purposes. While Griffiths's appeal was pending, Congress enacted the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, 110 Stat. 3009 (1996), which amended the INA to

include (for the first time) a statutory definition of "conviction" for

federal immigration purposes. See INA § 101(a)(48)(A), 8 U.S.C. §

1101(a)(48)(A). On May 9, 2000, the BIA dismissed Griffiths's appeal

from the order of deportation, agreeing with the INS that the "guilty-

filed" disposition was sufficient to support the deportation charges

against him under this new statutory definition of conviction. The BIA

relied on its intervening determination in Matter of Punu, Int. Dec.

3364, 1998 WL 546634 (BIA 1998), that the statutory definition of

"conviction" broadened the scope of "conviction" for immigration

purposes to encompass some deferred adjudications, even where the right

to further appellate review of the issue of guilt or innocence on such

deferred adjudications remained available. The BIA affirmed the

immigration judge's denial of a § 212(c) waiver, and found that without

such waiver he could not qualify for adjustment of status. Like the

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immigration judge, the Board failed to address the application for a §

212(h) waiver, nor did it address his request for voluntary departure

in lieu of deportation. Griffiths now petitions this court for review

of the Board's decision.

II.

A. The Scope of Review

We review de novo an agency's construction of a statute that

it administers, although subject to established principles of

deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);

Herrera-Inirio v. INS, 208 F.3d 299, 304 (1st Cir. 2000). Under those

principles of deference, if the intent of Congress is clear, it must

govern, but where the statute is silent or ambiguous on an issue, the

question for the court is whether the agency's interpretation is based

on a permissible construction of the statute. See Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43

(1984); Herrera-Inirio, 208 F.3d at 304. Since "agency officials

acting in the immigration context 'exercise especially sensitive

political functions that implicate questions of foreign relations,'

deference to administrative expertise is particularly appropriate."

Herrera-Inirio, 208 F.3d at 304, quoting INS v. Abudu, 485 U.S. 94, 110

(1988).

B. The Definition of "Conviction" for Immigration Purposes

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 At issue here is what it means to be "convicted" of an

offense within the terms of former § 241(a)(2)(C) of the INA, 8 U.S.C.

§ 1251(a)(2)(C), now codified at 8 U.S.C. § 1227(a)(2)(C). What it

means to be "convicted" of a crime for immigration purposes has been

the source of much debate. While the INA compels consideration of

various state criminal laws and procedures because it allows state

convictions to form the basis for deportation, the question of what

constitutes a "conviction" sufficient to afford such a basis is a

question of federal, not state, law. See, e.g., White v. INS, 17 F.3d

475, 479 (1st Cir. 1994).

Before the enactment of IIRIRA in 1996, the INA did not

provide any statutory definition of "conviction" for immigration

purposes. The Supreme Court briefly addressed the meaning of the term

in a two-sentence per curiam opinion, Pino v. Landon, 349 U.S. 901

(1955). In that case, the Supreme Court addressed the decision of this

court in Pino v. Nicolls, 215 F.2d 237 (1st Cir. 1954), which found

that a criminal conviction placed "on file" in Massachusetts qualified

as a conviction for the purposes of the INA. The Supreme Court

reversed, holding that "[o]n the record here we are unable to say that

the conviction has attained such finality as to support an order of

deportation" under the INA. 349 U.S. at 901.

The BIA attempted to create uniformity in the treatment of

various state methods of disposing of criminal cases by creating a

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controlling definition of "conviction" for immigration purposes in

Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988), which included a

three-part test to apply where adjudication of guilt had been withheld

under state procedures.2

This court again addressed the Massachusetts practice of

placing criminal cases "on file" in White v. INS, 17 F.3d 475 (1st Cir.

1994), though not in the context of forming the basis of a deportation

charge. There we applied the standard set out in Matter of Ozkok and

2 In Matter of Ozkok, the BIA concluded that it would
"consider a person convicted if the court has adjudicated him
guilty or has entered a formal judgment of guilt." 19 I. & N.
Dec. at 551. Where adjudication of guilt had been withheld,
however, further examination of the state procedure is required,
and the BIA held that where adjudication of guilt was withheld,
a "conviction" for immigration purposes could nevertheless be
found if the following elements were present:

(1) a judge or jury has found the alien guilty or he has
entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment, penalty,
or restraint on the person's liberty to be imposed . . .; and

(3) a judgment or adjudication of guilt may be entered
if the person violates the terms of his probation or fails
to comply with the requirements of the court's order,
without availability of further proceedings regarding the
person's guilt or innocence of the original charge.

Id. at 551-52. Superimposed on these three elements was the
requirement of a degree of finality, imported from Pino v.
Landon. See id. at 553 n.7.

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held that, in weighing the equities while considering a § 212(c)

waiver, the BIA erred in considering "filed" criminal charges to be

convictions for immigration purposes. Id. at 479. See also Molina v.

INS, 981 F.2d 14, 18-20 (1st Cir. 1992) (Rhode Island nolo contendere

plea plus probation, which was not considered a "conviction" under

state law upon completion of probation, was "conviction" under federal

immigration laws).

Against this background, in 1996 Congress enacted IIRIRA,

which, among other things, added a definition of the term "conviction"

for federal immigration purposes to the INA. See IIRIRA § 322(a),

amending INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A). That

definition of "conviction" is as follows:

The term "conviction" means, with respect to an alien, a
formal judgment of guilt of the alien entered by a court,
or, if adjudication of guilt has been withheld, where--

(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be imposed.

INA § 101(a)(48)(A). Though enacted after the relevant conduct, this

definition governs on Griffiths's appeal. See IIRIRA § 322(c)

("EFFECTIVE DATE.-- The amendments made by subsection (a) shall apply

to convictions and sentences entered before, on, or after the date of

the enactment of this Act.").

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 The Congressional Conference Committee Report accompanying

IIRIRA commented on Congressional intent in drafting IIRIRA § 322:

This section deliberately broadens the scope of the
definition of "conviction" beyond that adopted by the Board
of Immigration Appeals in Matter of Ozkok, 19 I&N Dec. 546
[1988 WL 235459] (BIA 1988). As the Board noted in Ozkok
there exist in the various States a myriad of provisions for
ameliorating the effects of a conviction. As a result,
aliens who have clearly been guilty of criminal behavior and
whom Congress intended to be considered "convicted" have
escaped the immigration consequences normally attendant upon
conviction. Ozkok, while making it more difficult for alien
criminals to escape such consequences, does not go far
enough to address situations where a judgment of guilt or
imposition of sentence is suspended, conditioned upon the
alien's future good behavior. For example, the third prong
of Ozkok requires that a judgment or adjudication of guilt
may be entered if the alien violates a term or condition of
probation, without the need for any further proceedings
regarding guilt or innocence on the original charge. In
some States, adjudication may be "deferred" upon a finding
or confession of guilt, and a final judgment of guilt may
not be imposed if the alien violates probation until there
is an additional proceeding regarding the alien's guilt or
innocence. In such cases, the third prong of the Ozkok
definition prevents the original finding or confession of
guilt to be considered a "conviction" for deportation
purposes. This new provision, by removing the third prong of
Ozkok, clarifies Congressional intent that even in cases
where adjudication is "deferred," the original finding or
confession of guilt is sufficient to establish a
"conviction" for purposes of the immigration laws.

H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 1996, 1996 WL 563320 at

*496-97.

The BIA has interpreted the definition of "conviction" in INA

§ 101(a)(48)(A) in Matter of Punu, Int. Dec. 3364, 1998 WL 546634 (BIA

1998). In that case, the Board, sitting en banc, addressed a Texas

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criminal procedure that deferred adjudication of the criminal charge

and placed the defendant on probation, but allowed for the possibility

of further appellate review on the question of the defendant's guilt or

innocence. The Board found that the defendant was "convicted" for

immigration purposes under the new definition, as there was a finding

of guilt and the imposition of probation. See id.; see also Moosa v.

INS, 171 F.3d 994 (5th Cir. 1999) (affirming the conclusion that a

deferred adjudication under Texas law was a conviction for federal

immigration purposes), reversing Martinez-Montoya v. INS, 904 F.2d 1018

(5th Cir. 1990) (holding that deferred adjudication under Texas law did

not qualify as "conviction" for federal immigration purposes under the

pre-IIRIRA definition). Implicit in this holding is a conclusion that

the "finality" requirement no longer applied to deferred adjudications

under the new definition, as the concurrence makes explicit. See

Matter of Punu, Int. Dec. 3364, at 12 (Grant, Board Member,

concurring); see also Moosa, 171 F.3d at 1009 ("finality is no longer

a requirement"). Matter of Punu did not purport to deal with the issue

of finality under the first prong of the new IIRIRA definition of a

conviction, where there is "a formal judgment of guilt." It addressed

only the second prong of the new definition, where "adjudication of

guilt has been withheld."

C. The "Guilty-Filed" Procedure in Massachusetts Law

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 Massachusetts criminal procedure allows a court to place a

case on file either before or after the plea where "public justice does

not require an immediate sentence." Commonwealth v. Dowdican's Bail,

115 Mass. 133, 136 (1874). Under Massachusetts law, the guilty-filed

procedure "suspends the adjudicative process, including the defendant's

right to appeal, until such time as the court reactivates or makes some

further disposition of the case." White, 17 F.3d at 479. Over 125

years ago, the Supreme Judicial Court of Massachusetts described the

process:

It has long been a common practice in this Commonwealth,
after verdict of guilty in a criminal case, when the court
is satisfied that, by reason of extenuating circumstances .
. . or other sufficient cause, public justice does not
require an immediate sentence, to order, with the consent of
the defendant and of the attorney for the Commonwealth, and
upon such terms as the court in its discretion may impose,
that the indictment be laid on file . . .. Such an order is
not equivalent to a final judgement, or to a nolle prosequi
or discontinuance, by which the case is put out of court;
but is a mere suspending of active proceedings in the case
. . . and leaves it within the power of the court at any
time, upon the motion of either party, to bring the case
forward and pass any lawful order or judgment therein.

Dowdican's Bail, 115 Mass. at 136. Despite the SJC's reference to

"after verdict," a charge can be filed "at any stage," White, 17 F.3d

at 479, even prior to trial or change of plea. A guilty-filed

disposition involves "an admission of sufficient facts for a possible

finding of guilt, but not an explicit admission of guilt." United

States v. Tavares, 93 F.3d 10, 13 n.3 (1st Cir. 1996). Because filing

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of a charge "is not a final judgment" or "equivalent to sentencing,"

Commonwealth v. Bianco, 454 N.E.2d 901, 903-04 (Mass. 1983), the

process "suspend[s], for as long as the case remains on file, the

defendant's right to appeal alleged error in the proceeding,"

Commonwealth v. Delgado, 326 N.E.2d 716, 719 (Mass. 1975). It is for

that reason that a defendant must consent to filing. See id.

D. Application of the Definition to the "Guilty-Filed" Disposition

Griffiths contends that the "guilty-filed" disposition of the

criminal charges against him does not qualify as a "conviction" for

immigration purposes. Recall that the definition has two alternate

prongs for finding a "conviction." The first prong involves cases

where there has been "a formal judgment of guilt." The second prong

applies to deferred adjudications, and requires the presence of

additional elements. Griffiths argues that his "guilty-filed"

disposition does not fall within either prong of the definition.

First, he argues that there is a finding of guilt but no "formal

judgment of guilt," and therefore there is no conviction under the

first prong of INA § 101(a)(48)(A). On the other hand, he says, the

elements for finding a conviction where the adjudication of guilt has

been deferred are not met, as the Massachusetts court did not impose

any "form of punishment, penalty, or restraint on [Griffiths's]

liberty." In any case, he says, the finality requirement of Pino v.

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Landon presents a separate and remaining bar, as he retains his rights

to direct appellate review.

The INS responds that the notation of the Dorchester District

Court on the docket sheet that Griffiths was "guilty" prior to placing

the case on file reflects a formal judgment of guilt, and therefore the

petitioner has been "convicted" of a crime for immigration purposes

under the first prong of INA § 101(a)(48)(A). In any case, the INS

says, the court entered a finding of guilt and Griffiths served a year

of probation for the conduct, so he is "convicted" under the second

prong of the statute as well. As to the second prong, the pre-IIRIRA

finality requirement, according to the INS, was an interpretation of

the statutory meaning of the bare term "convicted" that was superceded

by the Congressional enactment of an express statutory definition.

Therefore Griffiths's theoretical right to appeal the guilty-filed

case, should it ever be brought forward, is not relevant to the finding

that he was "convicted" for immigration purposes under the second prong

of the statute.

We read the Board's decision in this case to hold that the

guilty-filed disposition of Griffiths's case was a conviction for

federal immigration purposes under the second prong laid out in INA §

101(a)(48)(A), which applies in cases where the "adjudication of guilt

has been withheld." While the Board's sparse opinion does not state

this explicitly, it rests its conclusion that Griffiths had been

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convicted "upon our reasoning in Matter of Punu," and Punu in turn

addressed only that second prong of the definition.

The BIA's reliance on the second prong of the definition in

this case is appropriate. While the immigration judge analyzed the

case under the first prong, the record does not support finding a

formal judgment of guilt. The structure of the statutory definition in

§ 101(a)(48)(A) requires that finding a formal judgment of guilt under

the first prong of the definition entails a showing of something beyond

a simple finding of guilt such as in the case-filed situation.

Otherwise the reference in the second prong of the statute to deferred

adjudications where either a judge or a jury has "found the alien

guilty" would be rendered superfluous. See INA § 101(a)(48)(A)(i); 8

U.S.C. § 1101(a)(48)(A)(i). The simple notation of "guilty-filed" on

the docket sheet does not support the conclusion that Griffiths has

been "convicted" within the meaning of the statute because there has

been a "formal judgment of guilt."

Instead the BIA assessed whether the guilty-filed disposition

under Massachusetts law fell within the category demarcated by the

second prong, where Congress has determined that there is sufficient

evidence of a conviction for federal immigration purposes despite the

fact that the state has withheld adjudication of guilt. In Matter of

Punu, the BIA addressed this category and interpreted INA §

101(a)(48)(A) to encompass deferred adjudications regardless of the

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possibility of further appellate review on the issue of guilt or

innocence. Applying that interpretation to this case, the Board here

found that like deferred adjudications under Texas law, the guilty-

filed disposition under Massachusetts law could qualify as a conviction

for federal immigration purposes. Thus under the BIA's construction of

the statutory definition, finality is no longer a requirement in cases

where the adjudication of guilt has been withheld.3

Since the Board's interpretation of the statutory definition

is a permissible construction of the statutory language, petitioner's

argument that a lack of sufficient finality bars a finding of

conviction in his case is unavailing. Most importantly, the Board's

understanding of the treatment of cases where the adjudication of guilt

is withheld is not inconsistent with the plain language of the statute.

In fact, the BIA's interpretation of the statute reflects a rather

straight-forward application of its language. The language of the

statute as to the second prong requires two elements -- (i) some

3 The Board did not address the meaning of the first
prong of INA § 101(a)(48)(A), governing cases where there is a
"formal judgment of guilt," in its decision construing the
statute, Matter of Punu. See Int. Dec. 3364, n.1 (Grant, Board
Member, concurring) ("For example, this opinion does not address
the circumstance of an alien against whom a formal adjudication
of guilt has been entered by a court, but who has pending a
noncollateral post-judgment motion or appeal."). Since we
address petitioner's case here under the second test, we
likewise do not address any finality requirements for finding a
conviction under this first prong.

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sufficient finding of support for a conclusion of guilt, and (ii) the

imposition of some form of punishment -- in order to find a

"conviction" for immigration purposes. The Board likewise requires

that both of those elements be found. Nor does the language of the

statute, on its face, impose any additional requirements, such as

finality. This reading is reinforced by recognition of the fact that

Congress enacted this particular language against the background of the

more stingy definition of "conviction" in Matter of Ozkok. Moreover,

the Board's conclusion is buttressed by the legislative history of the

provision adding the definition, IIRIRA § 322, which expressly

contemplates that the original finding of guilt may be sufficient to

establish a "conviction" under the definition in cases where

adjudication has been deferred despite the theoretical availability of

additional proceedings regarding guilt or innocence.

There may be a permissible interpretation of the new

statutory definition in which the requirement from Pino v. Landon that

deferred adjudications exhibit a certain degree of finality persists

beyond the enactment of the definition of "conviction" in IIRIRA. But

the BIA's conclusion that it does not is not unreasonable. Since the

Board's interpretation of the treatment of cases where the adjudication

of guilt is withheld is both wholly consistent with the plain language

of the definitional statute and reflects a reasonable understanding of

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the purposes of its enactment, we must defer to that interpretation.

See Chevron, 467 U.S. at 842-43; Herrera-Inirio, 208 F.3d at 304.

Petitioner argues that since his right to appeal

remains intact as a theoretical matter, the INS position would

mean that deportation was available to the INS in cases where

the trial court has entered a guilty verdict but there are post-

judgment motions or direct appeals pending in the case. This is

simply not the case. The INS was careful at oral argument to

say that it was not taking the position it could deport someone

adjudicated guilty while their appeal or appeal period was

pending. Such guilty adjudications would fall under the first

prong. Both the statutory language and the legislative history

reflect a determination that a distinct mode of treatment for

deferred adjudications is appropriate in this context.

Nor is this difference unreasonable. There are

substantial practical differences between the situation faced by

a defendant currently exercising a direct appellate right and

that faced by a defendant with a theoretically available right

to appeal that lay dormant until and unless the case is later

brought forward off the file. In the former case, there is a

determinate end to the proceedings. Also, while a defendant in

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a case disposed of as "guilty-filed" has not waived his or her

right to appellate review, under Massachusetts law, the

defendant must consent to placing the case on file, and thus has

waived any right to immediate review or control over the

prospect of review. Hence the BIA's conclusion that the new

statutory definition does not require finality in cases where

the adjudication of guilt has been withheld is not an

unreasonable construction of the statute.

Apart from the validity of the BIA's interpretation of the

statute, however, a question remains whether, on the facts of the

present case, the statutory elements required by the second prong are

met. While acknowledging a finding of guilt, Griffiths contends that

the court did not impose any form of punishment upon placing his case

"on file," and therefore he was not convicted under the second prong

even under the BIA's interpretation of the required elements. The INS

responds that he had served probation for the same offense, though on

the prior, vacated conviction. We conclude that the factual record as

it now stands does not answer the question of whether the state judge

imposed some form of punishment on Griffiths in the case that was

placed on file. This omission may well stem from the fact that the

immigration judge analyzed the case under the first prong, as to which

the punishment question is irrelevant.

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 The sequence of events in this case might reasonably lead to

the conclusion that, as a practical matter, the state judge intended to

sentence Griffiths to time-served on the charge. That is, the state

court judge may not have imposed any punishment upon the "guilty-filed"

disposition of the case in April 1993 in order to avoid imposing

additional punishment, since (as the record shows) Griffiths had served

a year's probation from January 1991 to January 1992 on the conviction

that was subsequently vacated, but that rested upon the same charge as

the case being placed on file. Instead, the state court may have

simply pragmatically incorporated this past punishment for the present

charge.

However, the record is devoid of evidence that actually

establishes a link between this period of probation and the case placed

on file. The docket sheet contains no indication expressly linking the

probation period to the subsequent disposition. The record does not

contain notes or affidavits from the state judge or the state

prosecutor establishing such a link. Nor has the immigration judge or

the BIA made any such finding explicitly. In the absence of such a

finding or clear evidence on the record, we are reluctant to reach a

conclusion about whether Griffiths has been convicted under the second

prong of the definition in § 101(a)(48)(A).

It is possible that the BIA could find, with adequate facts,

that the state court judge took Griffiths's prior probationary period

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into consideration in deciding not to impose any punishment upon

placing the case on file. With such facts, it is arguable that the BIA

could permissibly conclude that the "guilty-filed" disposition of

Griffiths's case was sufficient to establish a conviction for federal

immigration purposes.4 However, those facts are not established on the

record before us. Where a reviewing court cannot sustain an agency

decision because it has failed to offer a legally sufficient basis for

that decision, the appropriate remedy is remand to the agency for

further consideration. See Gailius v. INS, 147 F.3d 34, 47 (1st Cir.

1998). We think a remand is particularly appropriate where the lack of

factual development stems from confusion about the meaning of a new

statute. Therefore, we remand this case to the BIA.

III.

Griffiths also raises two issues regarding discretionary

relief which were fully briefed and we resolve. Griffiths sought two

forms of relief from the deportation order before the agency below:

adjustment of status to lawful permanent resident, and voluntary

departure in lieu of deportation. Griffith faced a significant hurdle

to qualify for adjustment of status under § 245 of the INA. Because he

had been convicted of a criminal offense, assault with a dangerous

4 Griffith's assault conviction might provide an
independent basis for deportation. Nothing before us indicates
whether the INS sought deportation on that ground.

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weapon, he was inadmissible under the INA. Therefore, in order to

obtain an adjustment of status, Griffiths first had to obtain a waiver

of inadmissibility. To this end, he submitted an application to the

immigration judge for a § 212(h) waiver. Both the immigration judge

and the BIA mistakenly considered his eligibility for a § 212(c)

waiver, and concluded that he was not eligible. The immigration judge

also denied his application for voluntary departure.

A. Section 212(h) Waiver

Petitioner sought a § 212(h) waiver of inadmissibility in

order to obtain relief from the deportation order by means of an

adjustment of status. Section 212(h) allows waiver of inadmissibility

where inadmissibility results from criminal activity, the immigrant is

"the spouse, parent, son, or daughter of a citizen of the United

States," and denial of the admission would result in "extreme hardship"

to that person. See 8 U.S.C. 1182(h)(1)(B). Here, the petitioner is

both the son of a U.S. citizen and the parent of three U.S. citizens.

The immigration judge and the BIA both failed to address the

application for a § 212(h) waiver, instead in error considering and

rejecting the petitioner's eligibility for a § 212(c) waiver.

Petitioner seeks a remand to the Board to consider his eligibility for

the § 212(h) waiver.5

5 The petitioner's concurrent request to the BIA for
reconsideration on this issue is also currently pending before

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 Where, as a matter of law, Griffiths is ineligible for the

relief he sought, remand to the Board is unnecessary despite a clear

error, as he suffers no unfair prejudice. See, e.g., White v. INS, 17

F.3d at 480, citing Liwanag v. INS, 872 F.2d 685, 687 n.2 (5th Cir.

1989). The plain language of the statute, as amended by IIRIRA,

renders Griffiths ineligible for the discretionary consideration of

hardship. Section 348 of IIRIRA amended § 212(h) to add the following

sentence:

No waiver shall be granted under this subsection in the case
of an alien who has previously been admitted to the United
States as an alien lawfully admitted for permanent residence
if [ ] since the date of such admission . . . the alien has
not lawfully resided continuously in the United States for
a period of not less than 7 years immediately preceding the
date of initiation of proceedings to remove the alien from
the United States.

8 U.S.C. § 1182(h)(1) (Supp. V 1999). This provision explicitly

applies to pending applications. See IIRIRA § 348 (the amendment

"shall be effective on the date of enactment of [IIRIRA], and shall

apply in the case of any alien who is in exclusion or deportation

proceedings as of such date unless a final administrative order in such

proceedings has been entered as of such date."). Since the Board did

not issue its final order of deportation in the case until May 9, 2000,

this provision applies to Griffiths's waiver application. Under the

amended provision, Griffiths is statutorily ineligible for a § 212(h)

the BIA.

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waiver of inadmissibility because he was placed into deportation

proceedings on September 19, 1991, less than seven years after November

9, 1985, when he was admitted to the United States. Since petitioner

could not have circumvented this clear statutory bar to his waiver

application, remand for consideration of the application for waiver and

adjustment of status would serve no useful purpose, and therefore his

request is denied.

B. Application for Voluntary Departure

On appeal, petitioner argues that he is now statutorily

eligible for voluntary departure. He concedes that in 1993, when he

applied to the immigration judge for voluntary departure, the

immigration judge was correct to conclude that he was ineligible

because he was not a person of good moral character at the time, as

required by former INA § 244(e); 8 U.S.C. § 1254(e) (1994), now

codified at 8 U.S.C. § 1229c(b)(1). He was unable to meet the "good

moral character" requirement because of his conviction for assault with

a dangerous weapon within five years of the date of the judge's

decision. See INA § 101(f)(3); 8 U.S.C. § 1101(f)(3) (precluding a

finding of "good moral character" where alien was convicted of certain

criminal offenses, including the assault offense at issue here, during

the period in which such character was required). Nevertheless

petitioner maintains that due to the intervening passage of time,

petitioner was eligible at the time of the BIA's final order in May

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2000, since more than five years had elapsed since the assault

conviction. However, while petitioner may have accrued five years of

good moral character during the pendency of his deportation case, it is

immaterial, as the relevant period for which he must show good behavior

is the five years "immediately preceding" his application, not those

preceding the final decision. See 8 U.S.C. § 1254(e) (1994).

Therefore he is not eligible for voluntary departure.

IV.

For the reasons stated, we conclude that the Board did not

properly determine that the petitioner was convicted for immigration

purposes under the statutory definition supplied by INA §

101(a)(48)(A). The order of the Board of Immigration Appeals is

vacated, and the case is remanded to the BIA for further proceedings

consistent with this opinion.

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