WADUD

Interim Decision # 2980




                          MATTER OF WADUD

                        In Deportation Proceedings

                                 A-13596115

                    Decided by Board October 4, 1.984

  An alien deportable under section 241(a)(5) of the Immigration
and Nationality Act, 

8 U.S.C. § 1251

(a)(5) (1982), is not eligible for a
waiver pursuant to section 212(c) of the Act, 

8 U.S.C. § 1182

(c)
(1982), because no analogous ground of inadmissibility is enumer-
ated in section 212(a) of the Act. Matter of Horn, 

16 I&N Dec. 112

(BIA 1977); and Matter of Tanori, 

15 I&N Dec. 566

 (BIA 1976),
modified.
CHARGE:
 Order: Act of 1952—Sec. 241(a)(5) [

8 U.S.C. § 1251

(05)J—conviction under 

18 U.S.C. §1546

ON BEHALF OF RESPONDENT:                      ON BEHALF OF SERVICE:
 Stanley Wallenstein, Esquire                  Kendall Warren
 Schiano & Wallenstein                         General Attorney
 19 Rector Street, 36th Floor Penthouse
 New York, New York 10006

BY: Milhollan, Chairman; Maniatis, Morris, and Vacca, Board Members. Board
    Member Dunne has abstained from consideration of this case.



  The Immigration and Naturalization Service has appealed from
a decision of the immigration judge dated April 15, 1982, finding
the respondent deportable on his own admissions and granting his
application for a waiver of inadmissibility under section 212(c) of
the Immigration and Nationality Act, 

8 U.S.C. § 1182

(c) (1982). The
appeal will be sustained and the record will be remanded to the im-
migration judge.
  The respondent is a native of India and citizen of Bangladesh.
The record reflects that he was admitted to the United States as a
lawful permanent resident on October 4, 1966. The respondent has
a son who was born out of wedlock in this country on December 22,
1968.
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  The respondent was convicted on November 21, 1979, in the
United States District Court for the Southern District of New York
of six counts of conspiracy to defraud and to commit offenses
against the United States for which he was sentenced to 15
months' imprisonment. The offense with which we are concerned
in this proceeding is the respondent's conviction for aiding and
abetting another alien to obtain a visa, knowing it to have been
procured by means of a fake claim or to have been otherwise pro-
cured by fraud or unlawfully obtained in violation of 

18 U.S.C. §§ 2

and 1546 (1982). 1

    The provisions of 

18 U.S.C. § 2

 (1982), which relate to aiding and abetting in the
commission of a criminal offense, state:
     (a) Whoever commits an offense against the United States or aids, abets, coun-
  sels, commands, induces or procures its commission, is punishable as a principal.
    (b) Whoever willfully causes an act to be done which if directly performed by
  him or another would be an offense against the United States, is punishable as a
  principal.
  The underlying offense of which the respondent was convicted was the violation of

18 U.S.C. § 1546

 (1982), which provides as follows:
     Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant
  or nonimmigrant visa, permit, or other document required for entry into the United
  States, or utters. uses, attempts to use, possesses, obtains, accepts, or receives any
  such visa, permit, or document; 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 like-
  ness 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 Immigra-
  tion and Naturalization Service for the printing of such visas, permits, or docu-
  ments; 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 personates 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 any false statement with respect to a
  material fact in any application, affidavit, or other document required by the im-
  migration laws or regulations prescribed thereunder, or knowingly presents any
  such application, affidavit, or other document containing any such false state-
  ment—
     Shall be fined not more than $2,000 or imprisoned not more than five years, or
  both. (Emphasis added .)


                                         1 SIR
Interim Decision #2980

  In an Order to Show Cause, Notice of Hearing, and Warrant for
Arrest of Alien (Form I-221S) issued on February 17, 1981, the
Service charged the respondent with deportability under section
241(a)(5) of the Act, 

8 U.S.C. § 1251

(a)(5) (1976). That section pro-
vides, inter ans., that an alien who has been convicted of viola.ting

18 U.S.C. § 1546

 (1976) shall be deported. 2 The respondent conceded
deportability on the basis of his conviction but applied for section
212(c) relief, asylum, and withholding of deportation. The immigra-
tion judge determined that the respondent was statutorily eligible
for a waiver of inadmissibility under section 212(c) of the Act and
that a favorable exercise of discretion was warranted. He therefore
made no finding regarding the respondent's claim of persecution.
  On appeal the Service argues that the immigration judge erred
in finding that the respondent was eligible for section 212(c) relief
and that he merited a waiver as a matter of discretion. We agree
and shall sustain the appeal.
  Section 212(c) of the Act provides that aliens lawfully admitted
for permanent residence who temporarily proceed abroad volu ntar-
ily and not under an order of deportation, and who are returning
to a lawful unrelinquished domicile of 7 consecutive years, may be
admitted in the discretion of the Attorney General without regard
to certain specified grounds of exclusion enumerated in section
212(a) of the Act.
  Although the statute describes a waiver available to aliens seek-
ing to eliminate a ground of inadmissibility upon application to
enter the United States, it has been interpreted to include avail-
ability for relief in deportation proceedings as well. See Francis v.
INS, 522 F..2d 268 (2d Cir. 1976); Matter of Granados, 

16 I&N Dec. 726

 (BIA 1979); Matter of Ham, 

16 I&N Dec. 112

 (BIA 1977); Matter
of Silva, 

16 I&N Dec. 26

 (BIA 1976); Matter of Tanori, 

15 I&N Dec. 566

 (BIA 1976). However, the Board has consistently held that sec-
tion 212(c) of the Act can only be invoked in a deportation hearing
where the ground of deportation charged is also a ground of inad-
missibility. Matter of Granados, supra; Matter of M-, 

5 I&N Dec. 2

 Section 241(a)(5), which relates to the violation of other offenses as well, provides
for the deportation of any alien who
     has failed to comply with the provisions of section 265 unless he establishes to
  the satisfaction of the Attorney General that such failure was reasonably excusa-
  ble or was not willful, or has been convicted under section 266(c) of this title, or
  under section 36(c) of the Alien Registration Act, 1940, or has been convicted of
  violating or conspiracy to violate any provision of the Act entitled "An Act to re-
  quire the registration of certain persons employed by agencies to disseminate
  propaganda in the United States, and for other purposes", approved June 8, 1928,
  as amended [see 

22 U.S.C. § 618

(c)1, or has been convicted under section 1546 of
  title 18 of the United States Code.

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642 (BIA 1954); Matter of T-, 

5 I&N Dec. 389

 031A 1953); cf. Matter
of Salmon, 

16 I&N Dec. 734

 BIA 1978); Matter of Hom, supra;
Matter of Tanori, supra.3
  In the instant case the respondent was charged with deportabil-
ity under section 241(a)(5) of the Act which has no comparable
ground of excludability among those specified in section 212(c). See
Matter of R-G-, 

8 I&N Dec. 128

 (BIA 1958); Matter of 5-, 

7 I&N Dec. 536

 (BIA 1957). The respondent argues, however, that his con-
viction involves moral turpitude and, consequently, would render
him excludable under section 212(a)(9) of the Act if he were to
apply for admission to the United States. Therefore, he contends
that a section 212(c) waiver of inadmissibility should be available to
him in these proceedings. In support of his assertions, he cites our
decision in Matter of Granados, supra, where we concluded that a
conviction for possession of a sawed-off shotgun, which was a de-
portable offense under section 241(aX14) of the Act, could not be
waived by section 212(c) because it was not one of the grounds of
excludability specified iu the statute. We further noted that it was
not "a crime involving moral turpitude that would render the re-
spondent excludable under section 212(a)(9) of the Act." Id. at 728.
  Our statement in Granados as to whether the conviction in that
case was a crime involving moral turpitude was dictum which is
not controlling here. Furthermore, we need not determine whether
the respondent's conviction was one involving moral turpitude be-
cause we decline to expand the scope of section 212(c) relief in cases
where the ground of deportability charged is not also a ground of
inadmissibility. Were we to hold otherwise, an anomolous situation
would result in cases where deportability is charged under section
241(a)(5) of the Act since most of the offenses described in that sec-
tion do not involve moral turpitude. To afford section 212(c) relief
only to those aliens whose crime under section 241(a)(5) involved
moral turpitude would be to reward those guilty of a more egre-
gious offense for their greater culpability. We are unable to con-
clude that Congress intended such an inequitable consequence to
ensue from the implementation of section 212(c). Therefore, we
hold that deportability under section 241(a)(5) of the Act cannot be
waived by section 212(c) because no analogous ground of inatimissi-

    In Matter of Tanori, supra, we stated that a waiver of inadmissibility may be
granted in deportation proceedings if the alien was excludable at his last entry as a
result of the same facts which formed the basis of his deportability. We repeated
this conclusion in Matter of Horn, supra, noting that if the same ground of deport-
ability would have rendered the alien inadmissible at his last entry, he could apply
for a waiver in his deportation hearing. We shall withdraw from that language in
each of these cases to the extent that it is inconsistent with our decision today.

                                        1R
Interim Decision #2984

bility is enumerated in section 212(a) of the Act. Accordingly, we
conclude that the immigration judge erred in finding the respond-
ent eligible for section 212(c) relief.
  In any case, we also fmd the immigration judge's discretionary
grant of a waiver to be in error. In determining that the adverse
factors presented were outweighed by the favorable ones, the immi-
gration judge stated that the only evidence of the respondent's bad
moral character in the record wes his conviction_ He noted on the
other hand that the respondent had a long period of residence in
this country and a "good history of employment," that he "demon-
strated the existence of substantial business and properties ties,"
and that his deportation would have a devastating effect on his
child and the child's grandmother, with whom he formed a family
unit.
  The Service argues that the immigration judge failed to consider
the adverse evidence of record, including a sentencing memoran-
dum written by the United States Attorney in relation to the re-
spondent's conviction. In the memorandum it is noted that the re-
spondent was employed in violation of his student status during his
early years of residence in this country and that he made misstate-
ments denying his employment on applications for extension of
stay and adjustment of status. The memorandum also discusses the
respondent's exploitation of illegal aliens who were required to
work long hours with little or no salary at his business establish-
ments in order to obtain lawful permanent resident status. Several
investigations by both state and federal agencies into the respond-
ent's activities are related as well.
  In Matter of Morin, 

16 I&N Dec. 581

 03IA 1978), we stated that
certain factors should be considered in determining whether a fa-
vorable exercise of discretion is warranted on a waiver request
under section 212(c). Among the factors deemed adverse to an ap-
plication are the nature and underlying circumstances of the exclu-
sion ground at issue, the presence of additional significant viola-
tions of this country's immigration laws, the existence of a criminal
record, and, if so, its nature, recency, and seriousness, and the pres-
ence of other evidence indicative of an alien's bad character or un-
desirability as a permanent resident of this country.
  Favorable considerations include such factors as family ties
within the United States, residence of long duration in this country
(particularly when the inception of residence occurred while the re-
spondent was of a young age), evidence of hardship to the respond-
ent and his family if deportation occurs, service in this country's
Armed Forces, a history of employment, the existence of property
or business ties, evidence of value and service to the community,
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                                             Interim Decision #2980

proof of a genuine rehabilitation if a criminal record exists, and
other evidence attesting to the respondent's good character (e.g., af-
fidavits from family, friends, and responsible community represent-
atives). An alien applying for section 212(c) relief bears the burden
of demonstrating that he merits a favorable exercise of discretion.
Matter of Morin, supra.
   The respondent was convicted of serious violations of our laws re-
lating to immigration. His offenses include a scheme to perpetrate
fraud against our government which continued over a period of
about 7 years. Furthermore, the appellate conviction order indi-
cates that the respondent was exploiting the aliens he hired by.re-
quiring them to work long hours without payment of salary. We
find the respondent's blatant disregard for the law and his abuse of
other aliens to be strong evidence of his bad character and his un-
desirability as a permanent resident of this country. The testimony
of the family he lived with as an exchange student does not con-
vince us of his good moral character.
   Furthermore, unlike the immigration judge, we are unable to
view the respondent's history of employment and business ties as
favorable in light of the fraudulent schemes he was engaged in
while pursuing his business ventures. In addition, the record re-
fleets that he no longer owns the restaurant which he has been
managing. His current ownership of other properties has not been
established. We therefore conclude that the immigration judge
erred in considering the respondent's employment history and busi-
ness and property ties as equities.
  The factors in the respondent's favor properly considered by the
immigration judge include his long residence in this country and
the hardship which will ensue from his deportation. The respond-
ent's son is now 15 years of age and has spent his entire life in this
country_ However, his mother and his grandmother, with whom he
has resided since infancy, are living in the United States. Although
the respondent's deportation will no doubt result in hardship, both
financial and emotional, we are not persuaded. that such adversity
and the respondent's long residence are sufficient to outweigh the
significant negative factors of record. We therefore conclude that
the immigration judge improperly granted section 212(c) relief in
the exercise of discretion. The certificate presented by the respond-
ent on appeal, indicating that the State of New York has removed
all legal disabilities resulting from his conviction, does not alter
our opinion in this regard.
  We have reached our determination without consideration of the
sentencing memorandum to which counsel has objected. However,
we find that this document, which relates the respondent's numer-
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Interim Decision #2980

ous additional violations of immigration and other laws, should
properly have been considered by the immigration judge.
   It is well established that the strict rules of evidence are not ap-
plicable in deportation proceedings. See Martin-Mendoza v. INS,

499 F.2d 918

 (9th Cir. 1974); Matter of .DeVera, 

16 I&N Dec. 266

(BIA 1977). Furthermore, the regulations provide for the introduc-
tion into evidence of "any oral or written statement which is mate-
rial and relevant to any issue in the case previously made by the
respondent or any other person during any investigation, examina-
tion., hearing or trial." 

8 C.F.R. § 242.14

(c) (1984); Matter of De Vera,
supra. The respondent has not denied the truth of the statements
contained in the memorandum although the transcript of the hear-
ing indicates that he was afforded an opportunity to do so. 4 Under
the circumstances in this case, we conclude that it is appropriate to
consider the sentencing memorandum in determining whether a fa-
vorable exercise of discretion is warranted.
   Having reviewed the memorandum, we are further convinced
that the respondent dues not merit a grant of discretionary relief.
Accordingly, the appeal of the Service will be sustained. Inasmuch
as the respondent's additional requests for relief were not ad-
dressed by the immigration judge, we shall remand the record for
further consideration of those applications.
  ORDER: The appeal of the Immigration and Naturalization
Service is sustained and the decision of the immigration judge is
vacated.
   FURTHER ORDER: The record is remanded to the immigra-
tion judge for further proceedings consistent with the foregoing
opinion.




  4 The transcript   reveals that the immigration judge granted counsel a 2-week
period in which to notify the court whether he wished testimony to be taken regard-
ing the memorandum. Since no further proceedings were held, it must be presumed
that counsel elected not to have further examination on the document.

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