JIMENEZ

                                                                      Interim Decision #3291


Interim Decision #3291



             In re Fidel JIMENEZ-Santillano, Respondent

                               File A90 355 520 - Seattle

                                  Decided July 24, 1996

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

   A waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act,

8 U.S.C. § 1182

(c) (1994), is not available to waive an alien’s deportability under section
241(a)(3)(B)(iii) of the Act, 

8 U.S.C. § 1251

(a)(3)(B)(iii) (1994), as an alien convicted of a vio-
lation of 

18 U.S.C. § 1546

 (1994), because there is no comparable statutory counterpart to sec-
tion 241(a)(3)(B)(iii) among the various grounds for exclusion enumerated in section 212(a) of
the Act. Matter of Esposito, 

21 I&N Dec. 1

 (BIA 1995); Matter of Hernandez-Casillas, 

20 I&N Dec. 262

 (BIA 1990; A.G. 1991), aff’d, 

983 F.2d 231

 (5th Cir. 1993); Matter of Wadud, 

19 I&N Dec. 182

 (BIA 1984), followed.

FOR THE RESPONDENT: Maria Del Carmen Guerrero, Accredited Representative, El Paso,
Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Robert S. Hough, Assis-
tant District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,
HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG,
MATHON, and GUENDELSBERGER, Board Members

FILPPU, Board Member:

   The respondent, through counsel, has timely appealed from an Immigra-
tion Judge’s decision, dated August 1, 1995, finding the respondent
deportable as charged and statutorily ineligible for a waiver of inadmissibil-
ity under section 212(c) of the Immigration and Nationality Act, 

8 U.S.C. § 1182

(c) (1994), and adjustment of status under the “registry” provisions of
section 249 of the Act, 

8 U.S.C. § 1259

 (1994). The principal issue on appeal
is whether the respondent can invoke the salutary provisions of section
212(c) to waive his deportability under section 241(a)(3)(B)(iii) of the Act, 

8 U.S.C. § 1251

(a)(3)(B)(iii) (1994). We find that the Immigration Judge prop-
erly answered this query in the negative. The appeal will therefore be
dismissed.

                                               567
Interim Decision #3291


                                 I. BACKGROUND
    The record reflects the following facts. The respondent is a 51-year-old
native and citizen of Mexico who entered the United States on an unknown
date prior to January 1, 1972. On January 12, 1989, the respondent’s immi-
gration status was adjusted to that of a lawful permanent resident, with tem-
porary residence effective June 25, 1987. Subsequently, on August 29, 1994,
the respondent was convicted in the United States District Court for the Dis-
trict of New Mexico of fraud and misuse of documents required for entry into
the United States, in violation of 

18 U.S.C. § 1546

(a) (1994).1
    Count 1 of the indictment, to which the respondent specifically pled
guilty, reads as follows:


 1 The statute, 

18 U.S.C. § 1546

(a), provides as follows:

     Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or
     nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other
     document prescribed by statute or regulation for entry into or as evidence of authorized
     stay or employment in the United States, or utters, uses, attempts to use, possesses,
     obtains,accepts, or receives any such visa, permit, border crossing card, alien registration
     receipt card, or other document prescribed by statute or regulation for entry into or as
     evidence of authorized stay or employment in the United States, knowing it to be forged,
     counterfeited, altered, or falsely made, or to have been procured by means of any false
     claim or statement, or to have been otherwise procured by fraud or unlawfully obtained;
     or
     Whoever, except under direction of the Attorney General or the Commissioner of the
     Immigration and Naturalization Service, or other proper officer, knowingly possesses
     any blank permit, or engraves, sells, brings into the United States, or has in his control or
     possession any plate in the likeness of a plate designed for the printing of permits, or
     makes any print, photograph, or impression in the likeness of any immigrant or
     nonimmigrant visa, permit or other document required for entry into the United States, or
     has in his possession a distinctive paper which has been adopted by the Attorney General
     or the Commissioner of the Immigration and Naturalization Service for the printing of
     such visas, permits, or documents; or
     Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other
     document required for entry into the United States, or for admission to the United States
     impersonates another, or falsely appears in the name of a deceased individual, or evades
     or attempts to evade the immigration laws by appearing under an assumed or fictitious
     name without disclosing his true identity, or sells or otherwise disposes of, or offers to
     sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person
     not authorized by law to receive such document; or
     Whoever knowingly makes under oath, or as permitted under penalty of perjury under
     section 1746 of title 28, United States Code, knowingly subscribes as true, any false
     statement with respect to a material fact in any application, affidavit, or other document
     required by the immigration laws or regulations prescribed thereunder, or knowingly
     presents any such application, affidavit, or other document containing any such false
     statement—
     Shall be fined under this title or inprisoned not more than 10 years, or both.

                                             568
                                                                        Interim Decision #3291

   On or about the 30th day of April 1992, and continuing on through on or about the 21st day
   of January, 1993, in Chaves County, in the State and District of New Mexico, the defen-
   dants . . . did knowingly sell and otherwise dispose of a document required for entry into the
   United States, an alien registration receipt card, that is a Resident Alien Card, Form I-551,
   in the name of . . . a person not authorized by law to receive said document.
Thus, the relevant clause of 

18 U.S.C. § 1546

(a) under which the respondent
was convicted provides:
   Whoever . . . sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters,
   [an immigrant or nonimmigrant] visa, permit, or other document [required for entry into the
   United States], to any person not authorized by law to receive such document . . . [s]hall be
   fined under this title or imprisoned not more than 10 years, or both.
The respondent was sentenced to 2 years’ probation for the offense.
   At the deportation hearing below, the respondent admitted the factual alle-
gations contained in the Order to Show Cause and Notice of Hearing (Form
I-221) and conceded deportability as charged under section 241(a)(3)(B)(iii)
of the Act. That section provides for the deportation of “[a]ny alien who at
any time has been convicted . . . of a violation of, or an attempt or a conspir-
acy to violate, section 1546 of title 18, United States Code (relating to fraud
and misuse of visas, permits, and other entry documents).” The respondent
thereupon applied for a waiver of inadmissibility under section 212(c) of the
Act and, in the alternative, adjustment of status under section 249 of the Act
in conjunction with a waiver of inadmissibility under section 212(h) of the
Act. See 

8 C.F.R. §§ 242.17

(a), 249.1 (1995).
   The Immigration Judge determined that the respondent was statutorily
ineligible for both forms of relief. Citing this Board’s decision in Matter of
Wadud, 

19 I&N Dec. 182

 (BIA 1984), and the Attorney General’s decision in
Matter of Hernandez-Casillas, 

20 I&N Dec. 262

 (BIA 1990; A.G. 1991),
aff’d, 

983 F.2d 231

 (5th Cir. 1993), the Immigration Judge first held that the
respondent could not invoke section 212(c) to waive his deportability under
section 241(a)(3)(B)(iii) of the Act for his conviction because there is no stat-
utory counterpart to that section among the various grounds of excludability.
Next, citing our decision in Matter of Bufalino, 

11 I&N Dec. 351

 (BIA 1965),
the Immigration Judge held that the respondent was ineligible for adjustment
of status under section 249 of the Act because he was already a lawful perma-
nent resident and, therefore a record of his lawful admission into the United
States already existed. The Immigration Judge’s finding with respect to the
respondent’s eligibility for “registry” under section 249 of the Act is not con-
tested on appeal, and we do not address it.

                                II. ISSUE ON APPEAL
   On appeal, the respondent highlights the ground of inadmissibility
provided in section 212(a)(6)(C)(i) of the Act relating to fraud or willful mis-
representation of a material fact in procuring a visa, entry into the United
States, or other immigration benefit. He contends that this “willful

                                                569
Interim Decision #3291


misrepresentation” ground is sufficiently comparable to 

18 U.S.C. § 1546

(a)
to permit a section 212(c) waiver of his deportability under section
241(a)(3)(B)(iii).2 The respondent argues that his application for such discre-
tionary relief bears “unusual and/or outstanding equities,” including 25 years
of continuous residence in the United States, a lawful permanent resident
spouse, two United States citizen children, other family ties, and certain hard-
ship to the respondent and his family if he is deported. Accordingly, the
respondent requests that we remand the record to the Immigration Judge for
an evidentiary hearing on his eligibility for relief under section 212(c) as a
matter of discretion. The Immigration and Naturalization Service supports
the Immigration Judge’s decision and argues that section 212(c) relief is
unavailable to the respondent to waive his deportability under section
241(a)(3)(B)(iii) of the Act.
   Our charge, then, is to determine whether the respondent can invoke sec-
tion 212(c) of the Act to waive his deportability under section
241(a)(3)(B)(iii). We agree with the Immigration Judge’s holding that a sec-
tion 212(c) waiver is unavailable in these circumstances.3

III. AVAILABILITY OF SECTION 212(c) WAIVER TO WAIVE
 DEPORTABILITY UNDER SECTION 241(a)(3)(B)(iii) OF THE
                        ACT
   Section 212(c) of the Act provides, in pertinent part, that aliens lawfully
admitted for permanent residence who temporarily proceed abroad volun-
tarily and not under an order of deportation, and who are returning to a lawful

  2 The respondent also contends on appeal that he is eligible for a waiver of inadmissibility

under section 212(i) of the Act, and that section 212(i) may be applied to waive his deportability
under section 241(a)(3)(B)(iii). See generally Matter of Lazarte, 

21 I&N Dec. 214, 216-218

(BIA 1996) (discussing the section 212(i) waiver in a different context). The record reflects,
however, that this issue was neither raised before, nor ruled upon by the Immigration Judge.
Therefore, we will not decide the issue, for it is not properly before us. See Matter of Edwards,

20 I&N Dec. 191

, 196 n.4 (BIA 1990); Matter of Garcia-Reyes, 

19 I&N Dec. 830, 832

 (BIA
1988); cf. Matter of Samai, 

17 I&N Dec. 242, 243

 (BIA 1980) (holding that an objection raised
for the first time on appeal concerning improper notice of a deportation hearing was not
untimely made because the respondent was previously unrepresented and had not made a
knowing waiver of his procedural rights). We note, in any event, that the respondent’s
contention is baseless because a section 212(i) waiver may be invoked in deportation
proceedings only in conjunction with an application for adjustment of status under section 245
of the Act, 

8 U.S.C. § 1255

 (1994). See Matter of Gabryelsky, 

20 I&N Dec. 750, 754-55

 (BIA
1993); 

8 C.F.R. §§ 245.1

(f), 242.17(a) (1995). The respondent has not demonstrated eligibility
for adjustment of status.
  3 We note that the respondent’s commission of a criminal offense covered by section

241(a)(3)(B)(iii) of the Act does not bar him from applying for section 212(c) relief by virtue of
the amendment to section 212(c) included in section 440(d) of the recently enacted
Antiterrorism and Effective Death Penalty Act of 1996, 

Pub. L. No. 104-132, 110

 Stat. 1214,
1277 (enacted Apr. 24, 1996) (“AEDPA”). This amendment does not apply to offenses covered
by section 241(a)(3) of the Act.

                                              570
                                                                     Interim Decision #3291


unrelinquished domicile of 7 consecutive years, may be admitted in the dis-
cretion of the Attorney General without regard to certain specified grounds of
excludability. In 1976, the availability of section 212(c) relief was signifi-
cantly expanded when the United States Court of Appeals for the Second Cir-
cuit held that a section 212(c) waiver should be available regardless of
whether the applicant had departed from the United States subsequent to the
acts which rendered him deportable. Francis v. INS, 

532 F.2d 268

 (2d Cir.
1976). The court held that “[f]undamental fairness dictates that permanent
resident aliens who are in like circumstances, but for irrelevant and fortuitous
factors, be treated in a like manner.” 

Id. at 273

. This Board decided shortly
thereafter to adopt the approach of the Second Circuit nationwide in Matter
of Silva, 

16 I&N Dec. 26

 (BIA 1976). See generally Matter of Esposito, 

21 I&N Dec. 1, at 6-12

 (BIA 1995).
    In Matter of Hernandez-Casillas, supra, the Attorney General held that a
section 212(c) waiver is available in deportation proceedings only to those
aliens who have been found deportable under a charge of deportability for
which there is a comparable ground of excludability. Id. at 27; see also Mat-
ter of Esposito, supra, at 8-11; Matter of Meza, 

20 I&N Dec. 257, 258

 (BIA
1991); Matter of Wadud, supra, at 184-86; Matter of Granados, 

16 I&N Dec. 726, 728

 (BIA 1979), aff’d, 

624 F.2d 191

 (9th Cir. 1980). Of course, it is doc-
trine that this Board and all Immigration Judges are strictly bound by the
determinations of the Attorney General. See Matter of Esposito, supra, at 11;

8 C.F.R. §§ 3.0

 - 3.1(d) (1995).
    As we explained in Matter of Esposito, supra, at 7, “the relief provided by
section 212(c) is the waiver of a particular ground of exclusion or deporta-
tion, not a waiver of the particular offense which forms the basis for that
ground of exclusion or deportation.” Thus, our focus “is not whether the
deportable alien’s particular offense, in this case a conviction for a [docu-
ment fraud and misuse offense], could form the basis for a ground of exclu-
sion and therefore be waivable; rather, the focus is whether the ground of
deportation against the alien has a comparable ground of exclusion.” Id.
    Section 212(a)(6)(C)(i) of the Act states: “Any alien who, by fraud or will-
fully misrepresenting a material fact, seeks to procure (or has sought to pro-
cure or has procured) a visa, other documentation, or entry into the United
     The respondent is also not ineligible for a waiver by virtue of section 101(a)(43)(O) of the
Act, 

8 U.S.C. § 1101

(a)(43)(O) (1994), which deems an “aggravated felony” any offense
“described in 

18 U.S.C. § 1546

(a) (relating to document fraud) which constitutes trafficking in
the documents described in such section for which the term of imprisonment imposed . . . is at
least 5 years.” This provision is applicable only to convictions entered on or after October 25,
1994. Moreover, although section 440(e)(4) of the AEDPA, 110 Stat. at 1278, amends the
aggravated felony provision to include any offense “described in 

18 U.S.C. § 1546

(a) (relating
to document fraud) . . . for which the term of imprisonment imposed (regardless of any
suspension of such imprisonment) is at least 18 months,” this amendment does not appear to
apply to convictions entered before April 24, 1996. In any case, the respondent was sentenced
to a term of less than 18 months’ imprisonment.

                                              571
Interim Decision #3291


States or other benefit provided under this Act is excludable.” The respon-
dent argues that this “willful misrepresentation” ground of inadmissibility is
comparable to 

18 U.S.C. § 1546

(a), the provision upon which his
deportability under section 241(a)(3)(B)(iii) is founded. We disagree.

                                  A. Board Precedent
   As noted above, section 241(a)(3)(B)(iii) of the Act provides that “[a]ny
alien who at any time has been convicted . . . of a violation of, or an attempt or
a conspiracy to violate, section 1546 of title 18, United States Code (relating
to fraud and misuse of visas, permits, and other entry documents), is
deportable.” This ground of deportability was previously designated as sec-
tion 241(a)(5) of the Act, 

8 U.S.C. § 1251

(a)(5) (1988). The relevant statu-
tory language of section 241(a)(3)(B)(iii) and the former section 241(a)(5) is
identical. See Matter of Wadud, supra, at 184 n.2.
   In Matter of R-G-, 

8 I&N Dec. 128

 (BIA 1958), this Board first had occa-
sion to address whether former section 241(a)(5) had a statutory counterpart
among the various excludability grounds enumerated in section 212(a) of the
Act. Although Matter of R-G- distantly predates the expansion of coverage of
section 212(c) to grounds of deportability for which there exists a compara-
ble ground of excludability, we noted in that case that there was no “specific”
statutory ground for the exclusion of aliens who would be subject to deporta-
tion under section 241(a)(5) of the Act due to a prior conviction for document
fraud or misuse under 

18 U.S.C. § 1546

. 

Id. at 129

.
   Thirty years later in Matter of Wadud, supra, we further held that there is
no exclusion ground “comparable” to 

18 U.S.C. § 1546

. In that case, the
respondent contended that because the crime underlying his conviction under

18 U.S.C. § 1546

 and his deportability under section 241(a)(5) was arguably
a crime involving moral turpitude (“CIMT”) and there was a ground of inad-
missibility for aliens convicted of a CIMT, see former section 212(a)(9),

8 U.S.C. § 1182

(a)(9) (1982),4 section 212(c) should be available to him in
deportation proceedings. In dismissing the respondent’s contention that sec-
tion 212(a)(9) and 

18 U.S.C. § 1546

 were comparable, we observed that we
did not need to decide whether the respondent’s “section 1546 offense” was a
CIMT because no ground of inadmissibility enumerated in section 212(a) of
the Act at the time was comparable to 

18 U.S.C. § 1546

, including section
212(a)(9), the CIMT provision. 

Id. at 185

. We stated unconditionally that
“section 241(a)(5) of the Act . . . has no comparable ground of excludability
among those specified in section 212(c).” 

Id.

 Among the grounds specified in
section 212(c) at the time was the former section 212(a)(19), the nearly


  4 The former section 212(a)(9) of the Act has subsequently been revised and redesignated as

section 212(a)(2)(A)(i)(I) of the Act.

                                            572
                                                                       Interim Decision #3291


identical precursor to section 212(a)(6)(C)(i), the “willful misrepresentation”
excludability provision at issue in this case.5

             B. Comparability of Sections 212(a)(6)(C)(i) and
                      241(a)(3)(B)(iii) of the Act
    Upon review, we now specifically reject the respondent’s contention that
excludability under section 212(a)(6)(C)(i) of the Act for fraud or willful
misrepresentation of a material fact before an immigration official to procure
an immigration benefit such as a visa or entry into the United States is compa-
rable to deportability under section 241(a)(3)(B)(iii) for criminal convictions
for document fraud or misuse under 

18 U.S.C. § 1546

(a). Section
212(a)(6)(C)(i) quite broadly refers to fraud or misuse of entry documents as
it relates to procuring entry into the United States or another immigration
benefit. However, the conduct proscribed by 

18 U.S.C. § 1546

, which may
carry a penalty of up to 10 years’ imprisonment, goes well beyond the type of
fraud or misrepresentations before an immigration officer that might underlie
an alien’s excludability under section 212(a)(6)(C)(i).
    As is plain from a reading of the statute, 

18 U.S.C. § 1546

(a) indeed tar-
gets some conduct, such as presenting an application, affidavit, or other doc-
ument containing a false statement with respect to a material fact in order to
procure an immigration benefit, that may also constitute grounds for exclu-
sion under section 212(a)(6)(C)(i). However, 

18 U.S.C. § 1546

(a) also
encompasses more serious document fraud and misuse offenses not contem-
plated by the “willful misrepresentation” language of section 212(a)(6)
(C)(i), including the crime of selling visas, permits, and other immigration
documents, of which the respondent was convicted and upon which his
deportability is predicated. The vastly greater scope of 

18 U.S.C. § 1546

(a) is
a significant factor in our determination that these provisions are not “compa-
rable” for section 212(c) waiver purposes.
    The acts falling within the reach of 

18 U.S.C. § 1546

(a) include forging,
counterfeiting, and falsifying documents required for entry, as well as the
unauthorized possession of equipment designed for the reproduction of such
documents, regardless of whether the proscribed acts were performed for

  5 The only ground of inadmissibility not in existence at the time of our decision in Wadud

that is at least remotely proximate to section 241(a)(3)(B)(iii) is section 212(a)(6)(F) of the Act,
which states: “Any alien who is the subject of a final order for violation of section 274C is
excludable.” Section 274C of the Act, 8 U.S.C. § 1324c (1994), added to the statute by section
544(c) of the Immigration Act of 1990, 

Pub. L. 101-649, 104

 Stat. 4978, 5059 (enacted Nov. 29,
1990), imposes civil penalties for document fraud. See Matter of Lazarte, supra (holding that a
section 212(i) waiver could not be used to waive inadmissibility under section 212(a)(6)(F) of
the Act). The issue of the comparability of sections 241(a)(3)(B)(iii) and 212(a)(6)(F) is not
before us. We, therefore, leave it for another day. We note in passing, however, that Congress
provided an identical statutory counterpart to section 212(a)(6)(F) among the various grounds
of deportability at section 241(a)(3)(C) of the Act. See Matter of Lazarte, supra.

                                               573
Interim Decision #3291


personal use to procure an immigration benefit or merely for personal gain,
financial or otherwise. E.g., United States v. Hammoude, 

51 F.3d 288

 (D.C.
Cir.) (ongoing scheme of reproduction of fraudulent visas), cert. denied, 

515 U.S. 1128

 (1995). The coverage of the statute also extends to fraud or misuse
of immigration documents in furtherance of marriage fraud schemes, e.g.,
United States v. Lozano, 

511 F.2d 1

 (7th Cir.), cert. denied, 

423 U.S. 850

(1975); United States v. Ramos, 

605 F. Supp. 277

 (S.D.N.Y. 1985), and
knowingly accepting, possessing, or using fraudulent immigration docu-
ments, regardless of whether their acceptance, possession, or use is to pro-
cure an immigration benefit, e.g., Matter of Serna, 

20 I&N Dec. 579

 (BIA
1992); Matter of Cadiz, 

12 I&N Dec. 560

 (BIA 1968). Furthermore, the lan-
guage of section 212(a)(6)(C)(i) makes absolutely no mention of criminal
convictions for document fraud or misuse.
   Moreover, we find inconsequential the fact that the conduct constituting
the basis for an alien’s conviction under 

18 U.S.C. § 1546

 and deportability
under section 241(a)(3)(B)(iii) could possibly also render him inadmissible
under section 212(a)(6)(C)(i) if the fraud or misuse of entry documents was
committed while attempting to procure entry into the United States or
another immigration benefit. As we recently explained in Matter of Esposito,
supra, “we have previously addressed and rejected similar efforts to establish
eligibility for section 212(c) relief in deportation proceedings, notwithstand-
ing the lack of an exclusion ground comparable to the ground of deportation,
by subsuming the respondent’s conduct or offense under some exclusion
ground.” Id. at 13 (citing Matter of Montenegro, 

20 I&N Dec. 603

 (BIA
1992), and Matter of Wadud, supra). The essential analysis is to determine
whether the deportation ground under which the alien has been adjudged
deportable has a statutory counterpart among the exclusion grounds waivable
by section 212(c). Matter of Hernandez-Casillas, supra, at 286-89.
   The respondent’s particular offense tellingly illustrates that 

18 U.S.C. § 1546

(a) and the “willful misrepresentation” ground of inadmissibility at
section 212(a)(6)(C)(i) of the Act are neither “comparable,” Matter of Meza,
supra; Matter of Wadud, supra, “substantially identical,” Cabasug v. INS,

847 F.2d 1321, 1326

 (9th Cir. 1988), quoted in Matter of Hernandez-
Casillas, supra, at 267, nor “equivalent,” Matter of Hernandez-Casillas,
supra, at 287. The record reflects that the respondent was convicted under 

18 U.S.C. § 1546

(a) for having knowingly sold, over a period of approximately
9 months, an alien registration receipt card in the name of a person not autho-
rized by law to receive said document. The respondent himself was a lawful
permanent resident in possession of valid immigration documents required
for entry.
   Thus, if the respondent had departed from the United States following his
conviction under 

18 U.S.C. § 1546

(a) and completion of his sentence and
thereafter sought reentry as a returning permanent resident, it appears that he
would not have been inadmissible under section 212(a)(6)(C)(i) of the Act,

                                     574
                                                                   Interim Decision #3291


notwithstanding his deportability for the 

18 U.S.C. § 1546

(a) conviction. The
same would be true if the respondent had been convicted in the United States
of a “firearms offense,” as defined under section 241(a)(2)(C) of the Act. See
Matter of Esposito, supra, and cases cited therein.
   It would indeed be remarkable if a section 212(c) waiver were available to
an alien in deportation proceedings when that same alien would not have
occasion to seek such relief were he in exclusion proceedings instead. We are
satisfied, upon review, that the legitimate concerns of equal protection and
fundamental fairness that gave rise to the seminal holdings in Francis v. INS,
supra, and Matter of Silva, supra, are not implicated in the instant case.
See Matter of Hernandez-Casillas, supra, at 287-89; Matter of Wadud,
supra, at 185.

                                 C. Further Support
   Further support for the dissimilarity between 

18 U.S.C. § 1546

(a) and the
section 212(a)(6)(C)(i) “willful misrepresentation” ground of inadmissibility
may be found by reference to a dated, yet no less germane, decision of the
Second Circuit, DeLeon v. INS, 

547 F.2d 142

 (2d Cir. 1976), cert. denied,

434 U.S. 841

 (1977). In DeLeon, the Second Circuit Court of Appeals
addressed the issue of whether a waiver of deportability under the former sec-
tion 241(f) of the Act, 

8 U.S.C. § 1251

(f) (1970),6 is available to an alien
found deportable under former section 241(a)(5) for having been convicted
of document fraud and misuse under 

18 U.S.C. § 1546

. Because section
241(f) waived an alien’s deportability under the former section 241(a)(1) as
one who was excludable at entry under section 212(a)(19), the precursor to
the “willful misrepresentation” provisions of section 212(a)(6)(C)(i), the
Second Circuit was obliged to assess the comparability of 

18 U.S.C. § 1546

and 212(a)(19) in light of the Supreme Court’s pronouncements in Reid v.
INS, 

420 U.S. 619

 (1975), and INS v. Errico, 

385 U.S. 214

 (1966).
   Upon analyzing the two provisions, the court in DeLeon v. INS, supra,
ultimately held that 

18 U.S.C. § 1546

 and the former section 212(a)(19) of
the Act were not comparable and that the respondent, who was deportable
under section 241(a)(5) for having been convicted under 

18 U.S.C. § 1546

for impersonating a lawful permanent resident alien at the time of entry,
could not avail himself of a waiver of deportability under section 241(f). The
court reasoned that in specifying a conviction under 

18 U.S.C. § 1546

 as a
separate ground of deportability, Congress in section 241(a)(5) had singled
out the acts covered by 

18 U.S.C. § 1546

 as “serious offense[s] distinct from
the relatively minor misrepresentations which might provide a basis for
deportability under Sections 212(a)(19) and 241(a)(1).” 

Id. at 148

. The court
  6 The provisions of section 241(f) were repealed by section 602(b)(1) of the Immigration Act

of 1990, 104 Stat. at 5081. Similar provisions now appear at section 241(a)(1)(H) of the Act.
See generally Matter of Garawan, 

20 I&N Dec. 938

, 940-41 & n.3 (BIA 1995).

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further observed that “[i]t would be anomalous to hold that deportability
under Section 241(a)(5) for a conviction under 

18 U.S.C. § 1546

 can be
waived simply because it involved a fraud and was committed at the time of
entry.” 

Id.

 According to the court, the fraud targeted by 

18 U.S.C. § 1546

“clearly is not in the same category as the relatively less serious fraudulent
conduct contemplated by Section 212(a)(19).” 

Id. at 148-49

.

                            D. Practical Considerations
   In addition, we find it clear that 

18 U.S.C. § 1546

(a) and section
212(a)(6)(C)(i) are not coextensive in their coverage of offenses. Were we to
permit a waiver for aliens who are deportable for having been convicted
under one or more of the labyrinthine criminal provisions of 

18 U.S.C. § 1546

(a), this Board and the Immigration Judges would be obliged to scruti-
nize the particular conduct of the alien that gave rise to his culpability under

18 U.S.C. § 1546

(a) to determine whether the underlying offense is covered
by section 212(a)(6)(C)(i). Not only is this precisely the sort of analysis we
specifically rejected in Matter of Esposito, supra, at 8-10 (relying on the
Attorney General’s opinion in Matter of Hernandez-Casillas, supra), but it is
also one that would likely prove to be considerably cumbersome in practice.7
   For example, in a given case, an alien may have been convicted of violat-
ing several different subclauses of 

18 U.S.C. § 1546

(a), yet his deportability
would not depend upon which of the manifold subclauses he flouted. His
final conviction under 

18 U.S.C. § 1546

(a), irrespective of the particular sub-
clause, would be sufficient to sustain a charge of deportability under section
241(a)(3)(B)(iii) of the Act. To require Immigration Judges to ascertain what
specific crimes the alien committed, whether some or all of the alien’s crimi-
nal conduct is comparable to that targeted by section 212(a)(6)(C)(i) of the
Act and, if so, whether a section 212(c) waiver should be available to the
alien would not only contradict our precedent, but also impose upon Immi-
gration Judges virtually insoluble quandaries likely resulting in widely dispa-
rate results. If, on the other hand, we held that a section 212(c) waiver was
available to all aliens convicted under 

18 U.S.C. § 1546

(a) and found
deportable under section 241(a)(3)(B)(iii) of the Act, we would be embark-
ing on the type of extended and unnecessary departure from the text of

   7 In Matter of Meza, 

20 I&N Dec. 257, 259

 (BIA 1991), this Board held that because

Congress had specifically provided for the availability of section 212(c) relief to respondents
deportable for “aggravated felony” convictions although no “aggravated felony” exclusion
ground exists, we will look to the specific category of felony at issue to determine whether the
offense would be encompassed within the scope of an exclusion ground for purposes of
ascertaining the availability of a section 212(c) waiver. We note, however, that the Board has
significantly limited the holding of Meza to its peculiar facts in subsequent decisions in Matter
of Esposito, 

21 I&N Dec. 1, at 9-10

 (BIA 1995), and Matter of Montenegro, 

20 I&N Dec. 603, 605-06

 (BIA 1992).

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section 212(c) that the Attorney General repudiated in Matter of Hernandez-
Casillas, supra.

                           IV. CONCLUSION
   For the foregoing reasons, then, we conclude that an alien convicted under

18 U.S.C. § 1546

(a) of a document fraud or misuse offense described therein
may not invoke section 212(c) of the Act to waive his deportability under sec-
tion 241(a)(3)(B)(iii). Accordingly, inasmuch as there are no other issues
before us, the Immigration Judge’s decision is affirmed, and the appeal will
be dismissed.
   ORDER:          The appeal is dismissed.




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