601 F. 2d 879 - Byus-Narvaez v. Immigration and Naturalization Service

This is a petition for review of a decision of the Board of Immigration Appeals. Petitioner Edgar Byus-Narvaez, a native of Colombia whose mother is married to a United States citizen, entered this country as a lawful permanent resident in 1967. In 1975 he was convicted on two separate counts of conspiracy to distribute and distribution of cocaine in violation of the federal narcotics laws and was sentenced to imprisonment for five years on one count and three years on the other, the sentences to run concurrently.1 Thereafter, petitioner was ordered to show cause why he should not be deported and, after a hearing before an immigration judge, he was initially found deportable under section 241(a)(11) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1251(a)(11).2 The Board of Immigration Appeals affirmed the finding of deportability but remanded the case to the immigration judge for consideration of Byus-Narvaez's request for relief from deportation under section 212(c) of the Act, 8 U.S.C. § 1182(c).3

Section 212(c) provides relief from exclusion to aliens who have departed from this country and then are denied readmission on account of one or more of the grounds for exclusion listed in section 212(a), 8 U.S.C. § 1182(a).4 By its terms section 212(c) provides no relief to an alien like Byus-Narvaez who has never left the country and has never sought readmission subsequent to becoming deportable. However, in Francis v. Immigration and Naturalization Service, 2 Cir., 1976, 532 F.2d 268, the court held that section 212(c) could not constitutionally distinguish between an alien who briefly departed and thereafter reentered the United States and one, like Byus-Narvaez, who never left. Consequently, in the wake of the Francis decision, the Immigration and Naturalization Service has interpreted section 212(c) so as to extend its benefits to nondeparting permanent resident aliens subject to deportation. See Matter of Silva, Interim Decision 2532 (BIA 1976) (". . . a waiver of the ground of inadmissibility may be granted to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the act or acts which render him deportable."). Therefore, pursuant to the mandate of the decision in Francis and the Immigration and Naturalization Service's revised interpretation of the statute, consideration was given on remand by the immigration judge to Byus-Narvaez's request for section 212(c) relief from deportation.5

In a decision dated August 19, 1977, the immigration judge granted relief to Byus-Narvaez from deportation pursuant to section 212(c). On August 25, 1977, the Immigration and Naturalization Service appealed that decision. The appeal was sustained by the Board of Immigration Appeals in its order dated April 25, 1978, and Byus-Narvaez was ordered deported. He then petitioned this court pursuant to section 106(a) of the Act, 8 U.S.C. § 1105a(a), for review of the Board's denial of section 212(c) relief and for review of its deportation order. His major contentions are that the Board of Immigration Appeals lacks jurisdiction over an appeal by the Service from an immigration judge's grant of section 212(c) relief and that in any event the Service failed to file a timely appeal from the immigration judge's decision.6 We reject those contentions and dismiss the petition.

The jurisdiction of the Board of Immigration Appeals is outlined in various sections of Title 8 of the Code of Federal Regulations promulgated by the Attorney General under the authority granted by section 103 of the Act, 8 U.S.C. § 1103. Pursuant to 8 C.F.R. § 3.1(b)(3), the Board has jurisdiction over appeals from "(d)ecisions on applications for the exercise of the discretionary authority contained in section 212(c) of the act, as provided in part 212 of this chapter." That broad language communicates no suggestion that the Board's jurisdiction extends only to appeals by an alien who has been denied section 212(c) relief and not to appeals by the Service from an immigration judge's grant of relief. Byus-Narvaez contends, however, that the concluding clause of 8 C.F.R. § 3.1(b)(3) requires reference to8 C.F.R. § 212.3, which limits the Board's jurisdiction to appeals by an alien who has been denied section 212(c) relief by the immigration judge. We reject that interpretation of 8 C.F.R. § 212.3.7 Although the regulation makes no specific reference to a right of appeal by the Service, its silence in that respect does not imply the absence of such a right. The purpose of the regulation is to inform the alien eligible for section 212(c) relief of procedural rights and requirements ancillary to the remedy. The regulation delineates in detail the alien's right to appeal an unfavorable decision of the immigration judge. In doing so, however, it neither explicitly nor implicitly restricts the Service's right to appeal from a contrary decision.

Nothing in the nature of section 212(c) relief suggests that the Attorney General, as a matter of policy, intended to provide an appeal to an alien when relief has been denied but not to the Service when relief has been granted. Neither logic nor the statute compels the conclusion that a single immigration judge has the final decision concerning the propriety of the Service's exercise of its discretionary authority under section 212(c). Thus, we refuse to interpret the Attorney General's regulations to give the Board jurisdiction over appeals by an alien, but not by the Service, from an immigration judge's disposition of an application for section 212(c) relief.

We also reject Byus-Narvaez's contention that the Service's appeal to the Board in this case was untimely. The immigration judge rendered his decision on the application for section 212(c) relief on August 19, 1977. The Service filed its appeal six days later on August 25, 1977. Byus-Narvaez contends that the appeal was untimely because it was not filed within the five-day period specified by 8 C.F.R. § 236.7(c). That regulation, however, is applicable to appeals by the Service from decisions in exclusion proceedings. In this case, the application for section 212(c) relief was made in connection with a deportation proceeding. Under 8 C.F.R. § 242.21, ten days is allowed for the filing of an appeal from the decision of an immigration judge in a deportation proceeding. The Service's appeal in this case was filed within the ten-day limit which is applicable because Byus-Narvaez's application for section 212(c) relief was considered in connection with a deportation proceeding, which the Service recognizes as a result of the decision in the Francis case, rather than an exclusion proceeding.

In sum, therefore, the Board of Immigration Appeals properly asserted jurisdiction over the Service's appeal from the immigration judge's grant of section 212(c) relief. In denying relief, the Board gave appropriate consideration to Byus-Narvaez's arguments for exercising its discretion favorably to him and did not abuse its discretion in rejecting them. The denial of section 212(c) relief is amply justified by consideration of the serious nature of Byus-Narvaez's criminal record.

DISMISSED.