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V\Mlavv.2006 WL 3203692 (BIA) Page i

2006 WL 3203692 (BIA)** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

U. S. Department of JusticeExecutive Office for Immigration Review

Board of Immigration Appeals

IN RE: JACOB PETER SAMUEL A. K. A. JLETER SAMUEL

FILE: A44 61S 794 - NEW YORK CITYAugust 31, 2006

IN REMOVAL PROCEEDINGSAPPEAL 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)) - Crimeinvolving 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 inadmissibilityunder 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 inconjunction with an application for a visa abroad, an application for adjustmentof status, or an application for admission by an alien holding a visa recentlyissued abroad and on a nunc pro tunc basis if certain conditions can be met. Seesection 212 (h) (2); Matter of Balao , 20 I&N Dec. 440, 446 (BIA 1992) ; Matter ofParodi, 17 I&N Dec. 60S (BIA 19S0) ; Matter of Sanchez, 17 I&N Dec. 21S (BIA1980) ; Matter of Bernabella , 13 I&N Dec. 42 (BIA 1965) . The respondent alsofiled a motion to reopen claiming that the newly promulgated regulations no longerbar him from adj ustment of status as an arriving alien in removal proceedings. Therespondent's appeal will be sustained.

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The respondent argues that the Immigration Judge erred in finding him an arrivingalien. 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 theImmigration Judge that the respondent is an arriving alien because the Fleutidoctrine did not survive the admission provisions of the Illegal ImmigrationReform 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 ofinadmissibility. Although this was discussed at various points during his meritshearing (Tr. at 3, 15-19, 20-21, 49), the Immigration Judge did not consider therespondent's eligibility for a 212 (h) waiver- presumably because he was ineligiblefor adjustment of status as an arriving alien. In this case, however, therespondent was a returning lawful permanent resident. Although upon arrival he wascharged with arriving alien status, the respondent would not lose his lawfulpermanent resident status until a removal order became final. See Ma t of Lok L18 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 deportationdoes 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 onlyupon the entry of a final administrative order of deportation). In cases such asthis, a grant of a 212 (h) waiver of inadmissibility (which appears to becontemplated by section 101 (a) (13) (C) (v) of the Act) would seem to have the sameeffect as a former 212 (c) waiver. In this instance, this would leave therespondent with the lawful permanent resident status he began with- withoutrequiring him to reapply for adjustment of status, something he would not bepermitted to do under the new regulations. (FNl) Accordingly, the respondentappears 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 wouldresol ve all grounds of removability, if granted. As such, the respondent's appealwill 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 inthese 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, therespondent's appeal is sustained and the case is remanded to the Immigration Courtfor further proceedings consistent with this opinion. As such, the respondent'smotion 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 tothe regulations regarding the availability of adj ustment of status in removalproceedings for arriving aliens were promulgated. See Eligibility of ArrivinqAliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdictionto 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 ImmigrationJudge does not have jurisdiction to adjudicate an application for adjustment ofstatus filed by an arriving alien in removal proceedings except in a very limitedcircumstance involving aliens who (1) previously filed adjustment applications,(2) departed and returned to the United States under advance parole, and (3) weresubsequently placed in removal proceedings. See 71 Fed. Reg. 27, 585 at 27 (to becodified at 8 C.F.R. 1245.2 (a) (1) (ii) ). See generally Matter of Castro, 21 I&NDec. 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 06,2008KEYCITE

IN RE: JACOB PETER SAMUEL A.K.A. JLETER SAMUEL, 2006 WL 3203692 (BIA, Aug 31, 2006) (NO. : A44618 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

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Weslavv.2008 WL 486859 (BIA) Page 1

2008 WL 486859 (BIA)** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

U. S. Department of JusticeExecuti 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 PROCEEDINGSAPPEALON BEHALF OF RESPONDENT:Julianne I. O'Hara, EsquireON BEHALF OF DHS:

Michael B. DobsonAssistant 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 violationSec. 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: TerminationOn May 3, 2006, an Immigration Judge found the respondent removable as charged andordered him removed from the United States. The respondent has appealed from thisdecision. The appeal will be sustained in part and dismissed in part, but therespondent will remain removable from the United States.

I. BACKGROUND

The respondent is a native and citizen of India. On March 3, 2000, he was admittedto the United States as a temporary resident based on his marriage to a UnitedStates citizen. The Department of Homeland Security (DHS) removed the condition onhis 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 March21, 2005, when the respondent attempted to return to the United States after atrip 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 notin possession of a valid unexpired immigrant visa, reentry permit, border crossingidentification card, or other valid entry document required by this Act. TheImmigration Judge sustained both charges.On appeal, the respondent argues that the DHS had no basis for charging him withinadmissibili ty as an alien who is not in possession of a valid immigrant visa. Heclaims that his permanent resident card was still valid when he attempted toreturn to this country and that he therefore is not inadmissible as charged. Inaddition, the respondent maintains that his crime of attempted deception to obtaina dangerous drug is not a crime relating to a controlled substance because theoffense itself does not relate to controlled substances and the substance that wasactually 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 thathe 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 inpossession of a valid unexpired immigrant visa, reentry permit, border crossingidentification card, or other valid entry document required by this Act, and avalid unexpired passport, or other suitable travel document, or document ofidentity and nationality if such document is required under the regulations issuedby the Attorney General under section 211 (a)" is inadmissible. The DHS claims thatthe respondent in this case did not meet this requirement because he had beenconvicted 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 unexpiredpermanent resident card when he attempted to return to the United States on March21, 2005. He had committed a crime that subjected him to inspection and admissiondespite his permanent resident status, (FN1J but this crime did not invalidate hispermanent 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 theentry of a final administrative order of deportation); see also 8 C.F.R. 1.1iE. 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 doesnot change this fact. A waiver is not a "valid entry document required by thisAct" and the respondent therefore did not have to possess one in order for hispermanent resident card to remain valid. See section 212 (a) (7) (A) (i) (I) of theAct. 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 thetime 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 concludingthat the respondent was inadmissible under section 212(a) (2) (A) (i) (II) of the Actdue to his conviction for attempted deception to obtain a dangerous drug. Therespondent argues that his crime is not an offense relating to a controlledsubstance, but we disagree. Section 2925.22 of _the Ohio Revt3e~_ode falls withinthe chapter of the Ohio Revised Code relating to drug offenses and the statutestates, in the pertinent part: "(n) 0 person, by deception, as defined in section2913.01 of the Revised Code, shall procure the administration of, a prescriptionfor, or the dispensing of, a dangerous drug or shall possess an uncompletedpreprinted prescription blank used for writing a prescription for a dangerousdrug." Given these facts, we must conclude that the respondent's crime is anoffense relating to a controlled substance for the purposes of section212 (a) (2) (A) (i) (II) of the Act.

In addition, the substance involved in the respondent's crime, hydrocodone, is acontrolled substance under federal law. While the substance may not appear in 21U. s. C. 812, hydrocodone is listed in the revised schedule of controlledsubstances published at 8 C. F. R. 1308.12 (b). The respondent's offense thereforeinvol ved a controlled substance, despite his claims to the contrary.Finally, the respondent has been convicted of his crime for the purposes ofsection 101 (a) (48) (A) of the Act because there was "a formal judgment of guilt ofthe (respondent) entered by a court." See Exhibit 2; see also section101(a) (48) (A) of the Act. We therefore uphold the Immigration Judge's finding thatthe respondent is removable under section 212(a) (2) (A) (i)ii) of the Act and herfinding that the respondent is statutorily ineligible for relief from removal. Therespondent therefore is removable from the United States.ORDER: The appeal is sustained in part and dismissed in part, and the ImmigrationJudge's order of removal based on the charge under section 212(a) (2) (i) (II) of theAct is upheld.

Patricia A. ColeFOR 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 residencein the United States shall not be regarded as seeking an admission into the UnitedStates for purposes of the immigration law unless the alien ... has committed anoffense identified in section 212 (a) (2)") .2008 WL 486859 (BIA)

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