SAUNDERS

Interim Decision #2610

MATTER OF SAUNDERS

In Deportation Proceedings

A-20490949

Decided by Board January 27, 1977, and August 25, 1977

(1) Respondent applied for adjustment of status to that of a lawful permanent resident
under section 245 of the Immigration and Nationality Act as the spouse of a United
States citizen. In the application respondent disclosed two convictions in England for
possession of marijuana. The second of those convictions was under the Misuse of Drugs
Aet of 1971 which made guilty knowledge a relevant factor in determining guilt.
Therefore this case is distinguishable from Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
The second conviction renders the respondent subject to deportation under section
241(a)(11) of the Act. See Matter of Pasquini, Interim Decision 2496 (BIA 1976).
(2) During the five-year period immediately following an alien's adjustment of status under
section 245 of the Act, if it appears that the alien was in fact ineligible for that adjustment,
the adjustment must first be rescinded in proceedings brought under section 246 of the
Act before deportation proceedings can be instituted.
(3) Notwithstanding that the rescission proceedings were timely begun, the Board or-
dered the deportation prneeeding.s terminated where the notice of intention to rescind
was inadequate under 8 C.F.R. 246.1 and did not give respondent an opportunity to be
heard, and respondent never received final notice that his adjustment had been resci-
nded.
(4) Service motion to reconsider order terminating deportation proceedings, denied.
CHARGE:
Order Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of [violation
of] law relating to illicit possession of marihuana

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Gerald H. Robinson, Esquire George Indelicato
300 Standard Plaza Appellate Trial Attorney
Portland, Oregon 97204
Counsel of Record:
George V. Des Brisay, Esquire
1123 S.W. Yamhill Street
Portland, Oregon 97205

Before the Board, January 27, 1977

In a decision dated January 30, 1976, the immigration judge found the
respondent deportable as charged and ordered his deportation to Great
Britain. The respondent has appealed from that decision. The appeal
will be sustained.

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The respondent, a native and citizen of Great Britain, was convicted
in England for possession of marihuana in 1969 and 1971. He entered the
United States as a nonimmigrant visitor for pleasure in 1973 and sub-
sequently married a United States citizen. The respondent thereafter
made an application for adjustment of status to that of a lawful perma-
nent resident under section 245 of the Immigration and Nationality Act.
In connection with this application the respondent disclosed the fact of
his convictions. The Immigration. and Naturalization Service granted
the application on October 1, 1974, and the respondent's status was
adjusted to that of a lawful permanent resident.
Shortly thereafter, on November 13, 1974, the Acting District Direc-
tor sent a letter to the respondent notifying him of his intention to
rescind the respondent's permanent resident status pursuant to the
provisions of section 246 of the Act and informing him of his opportunity
to answer within 30 days. The letter, which is in the record before us,
states that the respondent was ineligible for adjustment of status under
sections 212(a)(23) and 212(a)(19) of the Act. It contains the following
statements:
(1) You have been found ineligible under Section 212(a)(23) for two convictions of illegal
possession of narcotic drugs or marihuana to receive a visa for entry into the United
States.
(2) You hava hppn found ineligible under Section 212(a)(19), for obtaining or procuring a
visa or other documentation to enter the United States by fraud or by wilfully
misrepresenting a material fact, by not revealing the prior arrests and convictions, at
the time you obtained your nonimmigrant visa at the American Embassy in London.

The respondent, who did not receive the letter of November 13, 1974,
but learned of the action against him from a friend who received the
letter, wrote the Service from Mexico requesting a six-month period
within which to depart from the United States. In his letter he stated
that he did not deny the allegations made against him. On December 23,
1974 the District Director notified the respondent that his permanent
resident status had been rescinded. This letter was returned undeliv-
ered to the Service. These deportation proceedings were subsequently
instituted against the respondent under section 241(a)(11) of the Act
which provides that any alien who has been convicted of a violation of
any law relating to the illicit possession of marihuana shall be deported.
On appeal counsel for the respondent raises three contentions: he
argues that (1) under the court's decision in Lennon, v. INS, 527 F.2d
187 (2 Cir. 1975), the convictions involved here do not subject the
respondent to deportation under section 241(a)(11); (2) the respondent
had a right to a full rescission hearing which was denied; (3) the Service,
which had knowledge of the convictions prior to the grant of adjustment
of status, is estopped from deporting the respondent on the basis of
those convictions.
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With respect to counsel's first contention, in Lennon the court held
that Congress did not intend to impose the harsh consequences of
exclusion upon an individual convicted of possession of drugs under a
foreign law that made guilty knowledge irrelevant. See Matter of Len-
non, Interim Decision 2304 (BIA 1974), reversed on other grounds,
Lennon v. INS, supra. The court's interpretation of Congressional intent
in Lennon applies equally to proceedings instituted against an alien
under the deportation provision of section 241(a)(11). The court con-
cluded that the British statute under which the alien had been convicted
imposed absolute liability for unauthorized possession of drugs and
vacated the order of deportation.
The alien in Lennon, was convicted under the British Dangerous
Drugs Act of 1965. In the present case at least one of the convictions
was had under a statute different from that involved in Lennon, namely
the Misuse of Drugs Act of 1971, a law which repealed the 1965 Danger-
ous Drugs Act. Section 28 of the Misuse of Drugs Act, which applies to
proceedings against persons charged with possession of marihuana, pro-
vides, in pertinent part:
28.—(3) Where in any proceedings for an offence to which this section applies it is
necessary, if the accused is to be convicted of the offence charged, for the prosecution
to prove that some substance or product involved in the alleged offence was the
controlled drug which the prosecution alleges it to have been, and it is proved that the
substance or production question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he
neither knew nor suspected nor had reason to suspect that the substance or product
in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof-
(i) if he proves that he neither believed nor suspected nor had reason to
suspect that the substance or product in question was a controlled drug; or
(ii)if he proves that he believed the substance or product in question to be a
controlled drug, or a controlled drug of a description, such that, if it had in fact
been that controlled drug or a controlled drug of that description, he would not
at the material time have been committing any offence to which this section
applies.
A defendant, then, who can prove lack of guilty knowledge is not
guilty under the terms of the statute. Consequently, guilty knowledge is
relevant, all that is required under Lennon. Therefore, this case is
distinguishable from Lennon. See Matter of Pasquini, Interim Decision
2496 (BIA 1976).
'With respect to counsel's second contention, section 246 of the Act
provides, in pertinent part:
(a) If, at any time within five years after the status of a person has been otherwise
adjusted under the provisions of section 245 or 249 of the Act or any other provision of
lmw to that of an ahem lawfully admitted for permanent residence, it shall appear to the
satisfaction of the Attorney General that the person was not in fact eligible for such
adjustment of status, the Attorney General shall rescind the action taken granting an

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adjustment of status to such person and cancelling deportation in the case of such person
if that occurred and the person shall thereupon be subject to all provisions of this Act to
the same extent as if the adjustment of status had not been made.. .

In those cases in which section 246 is applicable, its provisions must
be complied with before deportation proceedings may be instituted.
Matter of V — , 7 I. & N. Dec. 863 (BIA 1956). If, within five years of the
alien's adjustment of status under section 245, it appears that the alien
was ineligible for that adjustment, his permanent resident status must
be rescinded pursuant to section 246 before deportation proceedings can
be instituted against him.
In the present case, rescission proceedings were instituted against
the respondent prior to these proceedings. Counsel, however, has
raised a question as to whether the respondent had notice of the pro-
cedural safeguards guaranteed him in those proceedings. See generally
8 C.F.R. 246. In this case defenses that would have been available to the
respondent in rescission proceedings may have been lost for failure to
raise them. Under these circumstances, we shall terminate deportation
proceedings. The District Director, of course, may determine to reinsti-
tute rescission proceedings Against the respondent. That decision lies
generally within his discretion. See Matter of Quan, 12 I. & N. Dec. 487
(Deputy Assoc. Column 1967).
In view of the above opinion, we need not address the issue of
estoppel.
ORDER: The appeal is sustained; the proceedings are terminated.
Before the Board August 25, 1977
BY: Milhollan, Chairman; Wilson, Maniatis, and Maguire, Board Members. Concurring
Opinion by Board Member Appleman.
The Service has moved that we reconsider our decision dated January
27, 1977 sustaining the respondent's appeal and terminating the pro-
ceedings. The motion will be denied.
In our decision we held that, because five years had not passed since the
respondent had his status adjusted to that of a lawful permanent resi-
dent under section 245 of the Immigration and Nationality Act, his
permanent resident status must be rescinded pursuant to section 246
before deportation proceedings could be instituted against him. Because
it appeared that the respondent did not have adequate notice of the
procedural safeguards guaranteed him in the rescission proceedings
which had been brought against him, we ordered that the deportation
proceedings be terminated. We pointed out in our opinion that the
decision whether to reinstitute rescission proceedings against him lies
within the discretion of the District Director. In view of our decision to
terminate, we did nut reach the issue of estoppel which was raised by
the respondent.
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The Service presents two issues in its Motioii to Reconsider. First, it
contends that the respondent had adequate notice of the rescission
proceedings against him. With respect to this issue, the respondent
testified that, while he was on vacation, the notice of intention to rescind
was mailed to him. The person living in the respondent's home signed
the return receipt and informed the respondent by telephone of the
contents of the letter. (Tr. p. 12). The notice dated December 23, 1974,
advising the respondent that his status had been rescinded was not
received by the respondent and was returned to the Service undeliv-
ered. (Tr. p. 15).
Ordinarily, the notice of intention to rescind provided the respondent
would be sufficient under section 246. See 8 C.F.R. 246.1. However,
this case presents unusual circumstances, in particular, an intention by
the Service to rescind the adjustment on the basis of evidence which was
provided by the alien at the time his status was adjusted. Moreover, the
respondent was on vacation at the time of the proceedings, and there is
evidence that the Service knew it. (Tr. p. 12, 13). The respondent also
contends that another Service office informed him that his adjustment
could be rescinded only after the commission of a felony. (Tr. 13). Under
these circumstances, we conclude that the notice of intention to rescind
provided the respondent was insufficient. The respondent did not have
an adequate opportunity to be heard—a safeguard provided him under
the law.
With respect to the first contention of the Service, it is also argued
that Matter of Guan, 12 I. & N. Dec. 487 (Dep. Assoc. Comm. 1967), a
case cited in our January 27, 1977, decision, is distinguishable. Reference
to our decision will show that Matter of (Juan was cited as support for
the point that the District Director is not compelled to institute rescis-
sion proceedings in every case. His decision is a matter for the exercise
of discretion.
The Service also contends that an alien whose status is adjusted
under section 245 is not thereby exempt from the exclusion and deporta-
tion provisions of the Act. We agree. Relying on Matter of V—, 7 I. &
N. Dec. 363 (BIA 1956), we merely held that, during the five years
subsequent to the alien's adjustment, the adjustment must be rescinded
where it appears that the alien was not in fact eligible for the adjust-
ment before deportation proceedings can be instituted against him on
the basis of his ineligibility. It is the Service's contention that the
holding in Matter of V is inapplicable because in the present case, unlike
in Matter of V, the ground of ineligibility could have subjected the
respondent to deportation prior to the adjustment. We disagree. We are
of the opinion that the distinction is not material.
The Service also claims that our holding with respect to the neces-
sity of first rescinding the adjustment before deportation proceeding can

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be instituted is erroneous in view of the Attorney General's decision in
Matter of S—, 9 I. & N. Dec. 548 (BIA 1961; Attorney General 1962;
BIA 1962). In Matter of S—, the Attorney General was presented with a
case in which the five year period had passed and the alien was claiming
that, as a consequence, he was saved from deportation on grounds which
existed prior to the adjustment. In the present case, five years have not
passed, since the respondent's status was adjusted. Therefore, Matter
of S—, is inapposite.
Our decision of January 27, 1977, is correct. The Motion to Reconsider
will be denied.
ORDER: Motion to Reconsider is denied.
Irving A. Appleman, Member, Concurring:

Respondent is a 29-year-old native and citizen of Great Britain. He
entered the United States as a nonimmigrant visitor in 1973, married a
United States citizen on September 27, 1973, and in November of 1973
filed an application for adjustment of status as permanent resident. In
his application he disclosed two convictions in England for possession of
marijuana, in 1968, for which he received a $50 fine, and in 1973, for
which he received a $100 fine. The records of these convictions were
presented to the Service adjudicator, after which the application was
approved, and on October 1, 1974, his status was adjusted to that of a
lawful permanent resident.
On November 13, 1974, an Acting District Director sent a letter to the
respondent advising of an intention to rescind the adjustment. The
respondent, who at the time was in Mexico, never received this letter,
but was advised telephonically of its contents through a friend. On
December 23, 1974, a letter notifying the respondent that his permanent
resident status had been rescinded was sent to the respondent. It was
returned undelivered. At no time did the respondent demand a hearing,
under 8 C.F.R. 246, nor did he ever receive one.
These deportation proceedings were begun by service of an Order to
Show Cause on October 2, 1975. He is charged with deportability under
section 241(a)(11), 8 U.S.C. 1251(a)(11), because of the narcotic convic-
tions.
In our decision of February 4, 1977, sustaining the appeal and ter-
minating proceedings, we noted that the respondent had raised three
contentions. The first of these, relating to the Second Circuit decision in
Lennon, v. INS, 527 F.2d 187 (1975), was ruled on adversely to the
respondent, because we are concerned with a different statute than in
Lennon. As to the second, we found merit, in the somewhat unusual
facts of the case, to the argument that there was doubt -whether the
respondent had adequate notice of the procedural safeguards guaran-
teed him under section 246 of the Act (8 U.S.C. 1256), and 8 C.F.R. 246.

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We therefore ordered termination of the deportation proceedings to
afford the Service a choice whether or not to reinstitute rescission
proceedings. In view of this holding it was not necessary to reach the
serious issue of estoppel, the third contention raised on appeal.
In the motion for reconsideration now before us, the Service not only
argues that there was adequate compliance with notice requirements
and due process safeguards in the rescission proceeding, but that, in
view of the Attorney General's ruling in Matter of S, 9 I. & N. Dec. 548
(1962) the institution of a rescission proceeding was unnecessary.
I
It will be noted that this alien, adjudicated a lawful permanent resi-
dent in 1974, would have defenses available to him in a rescission
proceeding which are not available to him in these deportation proceed-
ings. An initial consideration would be whether the institution of rescis-
sion proceedings was warranted. While rescission may occur, in the
literal language of the statute, for "lack of eligibility" alone (Section 246,
8 U.S.C. 1256), it is, in the experience of this Member, most unusual to
attempt, rescission where some element of fraud or concealment was not
involved in the adjustment. Respondent could certainly argue that the
congressional intent of the rescission provision did not cover one in his
position. Alternatively, he could urge that as a matter of prosecutive
judgment, quite apart from estoppel, having fully disclosed a relatively
minor arrest record,' and having effected complete rehabilitation (so far
as the record before us reveals) the Service should not pursue rescis-
sion. More importantly, in rescission proceedings, the alien could raise
the estoppel issue in the direct framework of the claimed prejudicial
action, with appropriate appeals and review if decision were adverse.
In contrast, in deportation proceedings, if rescission is viewed as a
fait accompli, the respondent has lost his favored status as a lawful
permanent resident, and the inquiry- is limited to the lawfulness of his
status before the adjustment occurred—in this case, whether in 1974
he had remained longer as a nonimmigrant than authorized. (Section 246
S U.S.C. 1256).
There is no question that the respondent was seriously prejudiced by
the failure to have a hearing in the rescission proceedings_ The vigor
with which the Service resists affording him that opportunity is some-
what startling, given the somewhat unusual facts of the case. It is a fact
that the respondent did not receive the letter advising of an intention to
rescind. There is considerable question, from this record, what was read
to him during the long distance telephone call by his "friend." Respon-
1 Under present Service policies, either of the offenses, taken alone, would probably not
lead to the institution of deportation proceedings against a lawful permanent resident (See
'Operation Instruction 242.1(a)(28), 4-27-77).

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dent's letter of December 9, 1974, from Mexico (Ex. 5) says that he has
"heard of the allegations." Was he also fully aware of his rights to a
hearing and to make a defense? His letter does not indicate it. On the
contrary it reveals a woeful ignorance of his position. Far from reflect-
ing an understanding that the Service letter was a Notice Of Intention
To Rescind, only; he appears to have accepted the letter as a determina-
tion of deportability, something which may or may not occur after
rescission takes place and which usually requires the instutition of
separate proceedings, as this case illustrates. Nowhere does Exhibit 5
reflect respondent's understanding of his rights under the law. On the
contrary he asks for "compassion" and "understanding," and for a few
months to put his affairs in order before le aving. He states his intention
to contact the Service on arrival in the United States. Two weeks later,
after an in absentia determination, the letter advising of the fact of
rescission went out.
One cannot help question the "compassion" and "understanding' re-
ceived by this lawful permanent resident, married to a United States
citizen, with a United States citizen child, who after complete disclosure
of his "crimes," suddenly gets word, as he erroneously understands it,
that his permanent residence has already been taken away and he must
leave the country forthwith. In these circumstances I completely concur
in that portion of the majority decision which rejects the Service argu-
ment that there was adequate compliance with procedural due process
requirements in the rescission action. In this connection it is worth
noting that the burden the United States bears in a rescission proceed-
ing is the same clear, convincing and unequivocal burden borne in
deportation, Waziri v. INS, 392 F.2d 55 <9 Cir. 1968).
II
It is the further contention of the Service that this alien is subject to
deportation proceedings in any event, and even without the institution
of rescission proceedings, since the ground for deportation existed prior
to the adjustment of status. As to this I am in agreement with the
majority that the interpretation given the statute by the Attorney
General in Matter of S , 9 I. & N. Dec. 548, (BIA 1962), does not
—

warrant the conclusion the Service urges, but I reach that result for
somewhat different reasons.
Matter of S was an exclusion proceeding. The alien fraudulently
—

obtained an adjustment of status in April. 1955, concealing the fact that
he had obtained a visa by fraud in 1949_ No rescission occurred within
five years. Instead, the facts came to light when he attempted to
reenter the United States in August 1960, as a lawfully returning
resident alien after a visit abroad. The Board held that the passing of
the five years operated as a statute of limitation barring exclusion on
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any ground which existed prior to the adjustment. Pointing to the
Congressional history, the Attorney General noted that adjustment
under section 245 was never intended to confer greater rights than
those enjoyed by a permanent resident who gained his status through
entry with an immigrant visa. Since there exists no statute of limitation
as to the latter, and he may be deported or excluded at any time, for proper
cause, the same treatment must be accorded the alien adjusted under
section 245, the replacement for the old preexamination procedure.
What then is the effect and meaning of the five-year limitation in
section 246, on rescission of permanent resident status? In this area
Matter of 8— is somewhat vague, and one can readily appreciate the
Service difficulty in applying the provision. The solution the Service
offers here, however, is for all practical purposes, to read section 246
out of the statute altogether. I cannot agree that Congress intended
section 246 to be that meaningless.
The majority decision points to one instance where section 246 should
be applicable, i.e., where deportation (or exclusion) is sought, as here,
within the five-year period. This has the virtue of reconciling Matter of
S—, as the Attorney General pointed out, with the earlier decision of
this Board in Matter of V—, 7 I. & N. Dec. 363 (BIA 1956). In the
Attorney General's language, in Matter of V— (as here) the rescission
procedure, specifically provided to determine the issue of the alien's
ineligibility for the record of lawful admission, was "available," the five
years not yet having elapsed; whereas in Matter of S— this was not the
case. The majority decision thus finds some support in Matter of S—.
However, the implication which flows from this is that within the five
years a deportation or exclusion proceeding based on a ground render-
ing the alien ineligible for the adjustment must be preceded by rescis-
sion, but that after the five years there need be no compliance with
section 246. The difficulty with this is the lack of any reason for such a
distinction. On the contrary, why should the alien who had been a lawful
permanent resident for more than five years, with correspondingly
greater equities, be in a far worse position than one who has resided
here for a shorter period of time?
In my opinion section 246 does permit of another interpretation. As to
any ground of deportation or exclusion, known and embraced by the
grant of adjustment of status, the five-year rule should apply with full
force, and operate as a full statute of limitations. As to any ground
arising before the grant of adjustment, and not known at the time of
adjustment, deportation or exclusion proceedings should lie without
regard to rescission and the five-year rule. 2 In short, section 245 should
be read as a waiver and adjustment of known grounds of disability. As
As to any ground arising after the adjustment of status, it seems clear, under the langu age
of the statute, that deportation or exclusion proceedings lie, regardless of section 246.

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to these, if the Service is to deport or exclude, it must first rescind
under section 246, and must do so within five years. As to all other
grounds the alien is no different from any other permanent resident.
With this interpretation the Congressional intent is given meaning and
the existing case law reconciled.
Applied here, this interpretation clearly dictates the necessity of a
rescission proceeding, and for this reason I have concurred in the result
reached by the majority. For the reasons set forth in part I of this
opinion, this case is best resolved by a swift and merciful termination of
the deportation proceedings.

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