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2006 WL 3203692 (BIA)

2006 WL 3203692 (BIA) ** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED ** U. S. Department of Justice

Executive Office for Immigration Review Board of Immigration Appeals IN RE: JACOB PETER SAMUEL A. K. A. JLETER SAMUEL

FILE: A44 61S 794 - NEW YORK CITY August 31, 2006 IN REMOVAL PROCEEDINGS APPEAL AND MOTION ON BEHALF OF RESPONDENT: William H. 01 tarsh, Esquire CHARGE:

Notice: Sec. 212(a) (2) (A) (i) (I), I&N Act (S U.S.C. § l1S2(a) (2) (A) (i) (I)) - Crime involving moral turpitude

APPLICATION: Adjustment of status ORDER:

PER CURIAM. The issue raised on appeal is whether the respondent may file a "stand-alone" waiver under section 212 (h) of the Act to waive his inadmissibility

under section 212 (a) (2) (A) (i) (I) of the Immigration and Nationality Act ("Act"), §. U.S.C. § 11S2 (a) (2) (A) (i) (I) . A waiver under section 212 (h) is typically seen in conjunction with an application for a visa abroad, an application for adjustment of status, or an application for admission by an alien holding a visa recently issued abroad and on a nunc pro tunc basis if certain conditions can be met. See

section 212 (h) (2); Matter of Balao , 20 I&N Dec. 440, 446 (BIA 1992) ; Matter of Parodi, 17 I&N Dec. 60S (BIA 19S0) ; Matter of Sanchez, 17 I&N Dec. 21S (BIA 1980) ; Matter of Bernabella , 13 I&N Dec. 42 (BIA 1965) . The respondent also filed a motion to reopen claiming that the newly promulgated regulations no longer bar him from adj ustment of status as an arriving alien in removal proceedings. The

respondent's appeal will be sustained. i of3

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The respondent argues that the Immigration Judge erred in finding him an arriving alien. In this respect, the respondent relies on the so-called Fleuti Doctrine. See Rosenberg v. Zleuti, 374 U.S. 449 (1963) . However, we agree with the Immigration Judge that the respondent is an arriving alien because the Fleuti doctrine did not survive the admission provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of Pub. L.

No. 104-208, 110 Stat. 3009- 546, 3009-639 (1996) (IIRlRA). See also Matter of' Collado, 21 I&N Dec. 1061 (BIA 1998) The respondent also argues that he was eligible for a 212 (h) waiver of inadmissibility. Although this was discussed at various points during his merits hearing (Tr. at 3, 15-19, 20-21, 49), the Immigration Judge did not consider the respondent's eligibility for a 212 (h) waiver- presumably because he was ineligible for adjustment of status as an arriving alien. In this case, however, the respondent was a returning lawful permanent resident. Although upon arrival he was charged with arriving alien status, the respondent would not lose his lawful

permanent resident status until a removal order became final. See Ma t of Lok L 18 I & N. Dec. 101 (BIA 1981) , aff'd, Lok v. INS, 681 F.2d 107 (2d Cir. 1982) (holding that an act or event which provides a basis for an alien's deportation does not in itself terminate his lawful permanent resident status but, rather, that such status ends as a result of his commission of a deportable offense only upon the entry of a final administrative order of deportation). In cases such as this, a grant of a 212 (h) waiver of inadmissibility (which appears to be

contemplated by section 101 (a) (13) (C) (v) of the Act) would seem to have the same effect as a former 212 (c) waiver. In this instance, this would leave the respondent with the lawful permanent resident status he began with- without requiring him to reapply for adjustment of status, something he would not be permitted to do under the new regulations. (FNl) Accordingly, the respondent

appears to be eligible for a stand-alone waiver under section 212 (h) of the Act,

which may waive his inadmissibility under section 212 (a) (2) (A) (i) (I), and would resol ve all grounds of removability, if granted. As such, the respondent's appeal will be sustained.

Finally, the respondent argues that he should be released from custody. However, the Board does not have the authority to review the respondent's custody status in

these proceedings. See 8 C.F.R. § 1003.19; Matter of P-C-M- , 20 I&N Dec. 432

(BIA 1991) ; Matter of Balderas, 20 I&N Dec. 389 (BIA 1991) Accordingly, the respondent's appeal is sustained and the case is remanded to the Immigration Court for further proceedings consistent with this opinion. As such, the respondent's motion to reopen is denied as moot.

':Signature;: FOR THE BOARD

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FN1. Since the Immigration Judge adjudicated the respondent's case, amendments to the regulations regarding the availability of adj ustment of status in removal proceedings for arriving aliens were promulgated. See Eligibility of Arrivinq Aliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdiction

to Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27, 585027,592

(interim M~Ll~. 2006) (to be codified at 8 C.F.R. §§-i.L, 100_l,-=ljgL, 245.2(a) (1) and 1245.2(a) (1) ). The amended regulations clarify that an Immigration

Judge does not have jurisdiction to adjudicate an application for adjustment of status filed by an arriving alien in removal proceedings except in a very limited

circumstance involving aliens who (1) previously filed adjustment applications, (2) departed and returned to the United States under advance parole, and (3) were

subsequently placed in removal proceedings. See 71 Fed. Reg. 27, 585 at 27 (to be codified at 8 C.F.R. § 1245.2 (a) (1) (ii) ). See generally Matter of Castro, 21 I&N Dec. 379 (BIA 1996) . 2006 WL 3203692 (BIA) END OF DOCUMENT

~ 2008 Thomson/West. No Claim to Orig. U. S. Govt. Works.

V\ltstlaw Date of

Printing: MAY 06,2008

KEYCITE IN RE: JACOB PETER SAMUEL A.K.A. JLETER SAMUEL, 2006 WL 3203692 (BIA, Aug 31, 2006) (NO. : A44 618 794 - NEW) History =)- l IN RE: JACOB PETER SAMUEL A.K.A. JLETER SAMUEL, 2006 WL 3203692 (BIA Aug 3 l, 2006) (NO. : A44 618 794 - NEW)

i£ Copyright 2008 West, Carswell, Sweet & Maxwell Asia and Thomson Legal & Regulatory Limited, ABN 64 058 914 668, or their Licensors. All rights reserved.

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2008 WL 486859 (BIA)

2008 WL 486859 (BIA) ** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED ** U. S. Department of Justice

Executi ve Office for Immigration Review Board of Immigration Appeals

IN RE: HARMEET SINGH BAINS

FILE: A47 070 469 - DETROIT, MICHIGAN January 24, 2008

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Julianne I. O'Hara, Esquire ON BEHALF OF DHS:

Michael B. Dobson Assistant Chief Counsel CHARGE:

Notice: Sec. 212 (a) (2) (A) (i) (II), I&N Act (8 U.S.C. § 1182 (a) (2) (A) (i) (II)) Controlled substance violation

Sec. 212 (a) (7) (A) (i) (I), I&N Act (8 U.S.C. § 1182 (a) (7) (A) (i) (I) ) - Immigrant - no valid immigrant visa or entry document

APPLICATION: Termination On May 3, 2006, an Immigration Judge found the respondent removable as charged and ordered him removed from the United States. The respondent has appealed from this decision. The appeal will be sustained in part and dismissed in part, but the respondent will remain removable from the United States. I. BACKGROUND

The respondent is a native and citizen of India. On March 3, 2000, he was admitted to the United States as a temporary resident based on his marriage to a United States citizen. The Department of Homeland Security (DHS) removed the condition on his resident status in August 2003, but the respondent was also convicted of

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attempted deception to obtain a dangerous drug, to wit, hydrocodone, on August 29, 2003. The respondent received a fine of $50 for this crime. In addition, on March 21, 2005, when the respondent attempted to return to the United States after a trip abroad, the DHS charged him with inadmissibility on the basis of his crime. The DHS also charged the respondent with being inadmissible as an alien who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act. The Immigration Judge sustained both charges.

On appeal, the respondent argues that the DHS had no basis for charging him with inadmissibili ty as an alien who is not in possession of a valid immigrant visa. He claims that his permanent resident card was still valid when he attempted to return to this country and that he therefore is not inadmissible as charged. In addition, the respondent maintains that his crime of attempted deception to obtain a dangerous drug is not a crime relating to a controlled substance because the offense itself does not relate to controlled substances and the substance that was actually involved in the crime is not a controlled substance under federal law. Moreover, the respondent claims that he was not sentenced to any punishment, penalty or restraint upon his liberty for the crime. Accordingly, he argues that he has not been convicted of the crime for immigration purposes.

II. INADMISSIBILITY UNDER SECTION 212 (a) (7) (A) (i) (I)

Section 212 (a) (7) (A) (i) (I) of the Act states that any immigrant "who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211 (a)" is inadmissible. The DHS claims that the respondent in this case did not meet this requirement because he had been

convicted of a crime that made him inadmissible under section 212 (a) (2) (A) (i) (II) of the Act and he had not obtained a waiver for the offense. We disagree.

The evidence of record shows that the respondent possessed a valid unexpired permanent resident card when he attempted to return to the United States on March 21, 2005. He had committed a crime that subjected him to inspection and admission despite his permanent resident status, (FN1J but this crime did not invalidate his permanent resident card at the time of his attempted entry. See Matter of Abosi , 24~_!?es;. 204, 206 (BIA 2007) ; Matter of Lok , 18 1&N _Dec. 101,105 (BIA 1981)

(holding that lawful permanent resident status of an alien terminates with the entry of a final administrative order of deportation); see also 8 C.F.R. § 1.1

iE. The respondent therefore possessed a valid entry document on March 21, 2005. And his failure to obtain a waiver from the Attorney General for his crime does not change this fact. A waiver is not a "valid entry document required by this Act" and the respondent therefore did not have to possess one in order for his

permanent resident card to remain valid. See section 212 (a) (7) (A) (i) (I) of the Act. Given these facts, we reverse the Immigration Judge's finding that the

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respondent was inadmissible under section 212 (a) (7) (A) (i) (I) of the Act at the time of his attempted entry to this country.

III. INADMISSIBILITY UNDER SECTION 212 (a) (2) (A) (i) (II) On the other hand, we find that the Immigration Judge acted properly in concluding

that the respondent was inadmissible under section 212(a) (2) (A) (i) (II) of the Act due to his conviction for attempted deception to obtain a dangerous drug. The respondent argues that his crime is not an offense relating to a controlled substance, but we disagree. Section 2925.22 of _the Ohio Revt3e~_Çode falls within the chapter of the Ohio Revised Code relating to drug offenses and the statute states, in the pertinent part: "(n) 0 person, by deception, as defined in section 2913.01 of the Revised Code, shall procure the administration of, a prescription for, or the dispensing of, a dangerous drug or shall possess an uncompleted preprinted prescription blank used for writing a prescription for a dangerous drug." Given these facts, we must conclude that the respondent's crime is an offense relating to a controlled substance for the purposes of section 212 (a) (2) (A) (i) (II) of the Act.

In addition, the substance involved in the respondent's crime, hydrocodone, is a controlled substance under federal law. While the substance may not appear in 21 U. s. C. § 812, hydrocodone is listed in the revised schedule of controlled substances published at 8 C. F. R. § 1308.12 (b). The respondent's offense therefore

invol ved a controlled substance, despite his claims to the contrary. Finally, the respondent has been convicted of his crime for the purposes of

section 101 (a) (48) (A) of the Act because there was "a formal judgment of guilt of the (respondent) entered by a court." See Exhibit 2; see also section

101(a) (48) (A) of the Act. We therefore uphold the Immigration Judge's finding that the respondent is removable under section 212(a) (2) (A) (i)ii) of the Act and her finding that the respondent is statutorily ineligible for relief from removal. The respondent therefore is removable from the United States.

ORDER: The appeal is sustained in part and dismissed in part, and the Immigration

Judge's order of removal based on the charge under section 212(a) (2) (i) (II) of the Act is upheld. Patricia A. Cole

FOR THE BOARD

FN1 . See section 101 (a) (13) (C) of the Immigration and Nationality Act, 8 U.S.C. § 1101 (a) (13) (C) (stating that "an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration law unless the alien ... has committed an

offense identified in section 212 (a) (2)") . 2008 WL 486859 (BIA)

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