In re Rafael ULLOA, Respondent (Board decision, May 24, 1999)

Plain-English summary

The Board reviewed Rafael Ulloa's appeal from an Immigration Judge's finding that he was deportable and denial of his application for adjustment of status. The Immigration Judge had found that Ulloa, a Dominican national and lawful permanent resident, was likely to become a public charge, making him inadmissible under the Act. The Board held that an Immigration Judge has authority to grant a section 213 waiver and must advise an alien found inadmissible as a public charge of the right to apply for that waiver. The Board sustained the appeal and remanded the record so Ulloa could apply for the waiver.

Decision snapshot

• Cited authorities: 8 U.S.C. § 1183, 8 U.S.C. § 1182(a)(4)(B), 8 U.S.C. § 1255, and 8 C.F.R. § 242.17(a)
• Outcome: The appeal was sustained, and the record was remanded so the respondent could apply for a section 213 waiver.
• Key point: An Immigration Judge must advise an alien found inadmissible as a public charge of the right to seek a section 213 waiver.

Full text (BIA official public release)

Interim Decision #3393

In re Rafael ULLOA, Respondent

File A24 083 421 - New York

Decided May 24, 1999

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

Immigration Judges have jurisdiction to grant a waiver of inadmissibility under section 213 of the Immigration and Nationality Act, 8 U.S.C. § 1183 (Supp. II 1996), and are required to advise an alien found to be inadmissible as a public charge under section 212(a)(4)(B) of the Act, 8 U.S.C. § 1182(a)(4)(B) (Supp. II 1996), of his or her right to apply for a waiver.

Michael Amezquita, Esquire, New York, New York, for respondent

Mara Rafla-Hatzimemos, Assistant District Counsel, for the Immigration and Naturalization Service

Before: Board Panel: SCHMIDT, Chairman; VACCA and VILLAGELIU, Board Members.

VACCA, Board Member:

In a decision dated October 17, 1997, an Immigration Judge found the respondent deportable as charged and denied the respondent’s application for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1994 & Supp. II 1996). The respondent’s appeal from that decision will be sustained and the record will be remand- ed for further proceedings.
The respondent, a native and citizen of the Dominican Republic who was granted lawful permanent resident status in 1980, was charged with deportability under section 241(a)(2)(C) of the Act, 8 U.S.C. § 1251(a)(2)(C) (1994), for being convicted of criminal possession of a firearm. He applied for adjustment of status based on an approved visa peti- tion filed by his United States citizen daughter. Although the respondent’s conviction did not make him inadmissible under the Act, the Immigration Judge determined that the respondent is likely to become a public charge and is therefore inadmissible under section 212(a)(4)(B) of the Act, 8 U.S.C. § 1182(a)(4)(B) (Supp. II 1996).

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On appeal, the respondent attacks the Immigration Judge’s decision on substantive grounds. However, we decline to address these arguments at present, as he has also pinpointed what we believe is a procedural error. Specifically, the respondent argues that the Immigration Judge failed to inform him of his right to apply for a waiver of inadmissibility under sec- tion 213 of the Act, 8 U.S.C. § 1183 (Supp. II 1996). Having reviewed the pertinent statutory and regulatory language, we agree.
Pursuant to regulation, an Immigration Judge must inform an alien of his or her eligibility for certain forms of relief from deportation. 8 C.F.R. § 242.17(a) (1997) (stating that an Immigration Judge “shall inform the respondent of his or her apparent eligibility to apply for any of the benefits enumerated in this paragraph” (emphasis added)). Specifically, the regula- tions state as follows:
[I]n conjunction with any application for creation of status of an alien lawfully admit- ted for permanent residence made to an Immigration Judge, if the respondent is inad- missible under any provision of section 212(a) of the Act and believes that he or she meets the eligibility requirements for a waiver of the ground of inadmissibility, he or she may apply to the Immigration Judge for such waiver.

Id. (emphasis added).1
For cases involving section 212(a)(4)(B) of the Act, a discretionary waiver is provided “upon the giving of a suitable and proper bond or under- taking approved by the Attorney General, in such amount and containing such conditions as [s]he may prescribe.” Section 213 of the Act. We agree with the respondent that the Immigration Judge failed to advise him of his right to apply for such a waiver.
In opposition to the respondent’s appeal, the Immigration and Naturalization Service argues that the respondent is not eligible for a waiv- er under section 213 because this section does not apply to him. According to the Service, this is because the Immigration Judge has no authority to apply this section to the respondent.
We first note that the Service has completely failed to offer any legal support for its argument. Secondly, we find that the regulations specifically give Immigration Judges the authority to grant or deny an alien a waiver of inadmissibility under section 213. Although the Act specifically refers to the Attorney General, who may then delegate her power to the Immigration Judges, the regulations provide the following:

1
We note that recent legislative changes to the Act required that this regulation be altered to address the removability of aliens. See 8 C.F.R. § 240.11(a)(2) (1999). As the respondent is subject to deportation proceedings held in 1997, these new regulations do not apply. Nevertheless, the requirements of both regulations are similar.

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The district director having jurisdiction over the place where the examination for admission is being conducted or the special inquiry officer to whom the case is referred may exercise the authority contained in section 213 of the Act.

8 C.F.R. § 213.1 (1999) (emphasis added). Despite the fact that the regula- tions have not kept up with current immigration terminology, it is well known that the term “special inquiry officer” has been replaced with “Immigration Judge.” See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, § 371(b), 110 Stat. 3009-546, 3009-645 (“IIRIRA”). Therefore, it is clear that the Immigration Judge does have jurisdiction to grant a waiver of inadmissibil- ity under section 213 of the Act and should have informed the respondent of his right to request such a waiver. Accordingly, the appeal will be sus- tained and the record of proceedings will be remanded in order to allow the respondent to apply for a waiver of inadmissibility under section 213.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this order.

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