Matter of Saunders

Interim Decision #2610

临时决定第2610号

The respondent, a native and citizen of Great Britain, was convicted in England for possession of marihuana in 1969 and 1971. He entered the United States as a nonimmigrant visitor for pleasure in 1973 and sub- sequently married a United States citizen. The respondent thereafter made an application for adjustment of status to that of a lawful perma- nent resident under section 245 of the Immigration and Nationality Act. In connection with this application the respondent disclosed the fact of his convictions. The Immigration. and Naturalization Service granted the application on October 1, 1974, and the respondent's status was adjusted to that of a lawful permanent resident. Shortly thereafter, on November 13, 1974, the Acting District Direc- tor sent a letter to the respondent notifying him of his intention to rescind the respondent's permanent resident status pursuant to the provisions of section 246 of the Act and informing him of his opportunity to answer within 30 days. The letter, which is in the record before us, states that the respondent was ineligible for adjustment of status under sections 212(a)(23) and 212(a)(19) of the Act. It contains the following statements:

申请人，英国本土出生和公民，于1969年和1971年在英国因持有大麻被定罪。他于1973年作为非移民游客入境美国，随后与一名美国公民结婚。申请人此后根据《移民与国籍法》第245条申请调整身份为合法永久居民。就该申请，申请人披露了其定罪事实。移民和归化局于1974年10月1日批准了该申请，申请人的身份被调整为合法永久居民。 此后不久，1974年11月13日，代理地区主任致函申请人，通知他打算依据该法第246条的规定撤销申请人的永久居民身份，并告知他有机会在30天内答复。该信函（在本案记录中）称申请人依据该法第212(a)(23)和212(a)(19)条不符合调整身份资格。该信函包含以下陈述：

The respondent, who did not receive the letter of November 13, 1974, but learned of the action against him from a friend who received the letter, wrote the Service from Mexico requesting a six-month period within which to depart from the United States. In his letter he stated that he did not deny the allegations made against him. On December 23, 1974 the District Director notified the respondent that his permanent resident status had been rescinded. This letter was returned undeliv- ered to the Service. These deportation proceedings were subsequently instituted against the respondent under section 241(a)(11) of the Act which provides that any alien who has been convicted of a violation of any law relating to the illicit possession of marihuana shall be deported. On appeal counsel for the respondent raises three contentions: he argues that (1) under the court's decision in Lennon, v. INS, 527 F.2d 187 (2 Cir. 1975), the convictions involved here do not subject the respondent to deportation under section 241(a)(11); (2) the respondent had a right to a full rescission hearing which was denied; (3) the Service, which had knowledge of the convictions prior to the grant of adjustment of status, is estopped from deporting the respondent on the basis of those convictions.

申请人未收到1974年11月13日的信函，但从收到该信函的朋友处得知了针对他的行动，他从墨西哥致函服务局，请求给予六个月的期限离开美国。他在信中表示不否认针对他的指控。1974年12月23日，地区主任通知申请人其永久居民身份已被撤销。该信函被退回服务局，未送达。这些驱逐程序随后依据该法第241(a)(11)条对申请人启动，该条规定任何被判定犯有违反关于非法持有大麻的法律的外国人均应被驱逐。 在上诉中，申请人的律师提出三项主张：他主张(1)根据法院在Lennon v. INS, 527 F.2d 187 (2 Cir. 1975)中的判决，本案所涉定罪不使申请人依据第241(a)(11)条成为驱逐对象；(2)申请人有权获得完整的撤销听证，但被拒绝；(3)服务局在批准调整身份之前已知晓这些定罪，因此不得以这些定罪为由驱逐申请人。

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With respect to counsel's first contention, in Lennon the court held that Congress did not intend to impose the harsh consequences of exclusion upon an individual convicted of possession of drugs under a foreign law that made guilty knowledge irrelevant. See Matter of Len- non, Interim Decision 2304 (BIA 1974), reversed on other grounds, Lennon v. INS, supra. The court's interpretation of Congressional intent in Lennon applies equally to proceedings instituted against an alien under the deportation provision of section 241(a)(11). The court con- cluded that the British statute under which the alien had been convicted imposed absolute liability for unauthorized possession of drugs and vacated the order of deportation. The alien in Lennon, was convicted under the British Dangerous Drugs Act of 1965. In the present case at least one of the convictions was had under a statute different from that involved in Lennon, namely the Misuse of Drugs Act of 1971, a law which repealed the 1965 Danger- ous Drugs Act. Section 28 of the Misuse of Drugs Act, which applies to proceedings against persons charged with possession of marihuana, pro- vides, in pertinent part:

关于律师的第一项主张，在Lennon案中，法院认为国会不打算对依据外国法律被判定持有毒品（该法律使明知无关紧要）的个人施加排斥的严厉后果。见Matter of Lennon, 临时决定2304 (BIA 1974)，因其他理由被推翻，Lennon v. INS, supra。法院在Lennon案中对国会意图的解释同样适用于依据第241(a)(11)条驱逐条款对外国人启动的程序。法院得出结论，该外国人被定罪所依据的英国法规对未经授权持有毒品规定了绝对责任，并撤销了驱逐令。 Lennon案中的外国人是依据1965年《英国危险药物法》被定罪的。在本案中，至少有一项定罪是依据与Lennon案所涉不同的法规，即1971年《毒品滥用法》，该法废除了1965年《危险药物法》。《毒品滥用法》第28条适用于对被控持有大麻者的程序，其相关部分规定：

28.—(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or production question was that controlled drug, the accused— (a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but (b) shall be acquitted thereof- (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or (ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies. A defendant, then, who can prove lack of guilty knowledge is not guilty under the terms of the statute. Consequently, guilty knowledge is relevant, all that is required under Lennon. Therefore, this case is distinguishable from Lennon. See Matter of Pasquini, Interim Decision 2496 (BIA 1976). 'With respect to counsel's second contention, section 246 of the Act provides, in pertinent part:

28.—(3) 在任何就本条适用的犯罪进行的程序中，如果被告要被判定犯有所控罪行，控方必须证明所指控犯罪涉及的某种物质或产品是控方所指称的受管制药物，且已证明所涉物质或产品即为该受管制药物，则被告—— (a) 不得仅因证明他既不知道也不怀疑也没有理由怀疑所涉物质或产品是所指称的特定受管制药物而被宣告无罪；但 (b) 应被宣告无罪—— (i) 如果他证明他既不相信也不怀疑也没有理由怀疑所涉物质或产品是受管制药物；或 (ii) 如果他证明他相信所涉物质或产品是受管制药物，或某种描述的受管制药物，以至于如果它事实上是该受管制药物或该描述的受管制药物，他在关键时间就不会实施本条适用的任何犯罪。 因此，能够证明缺乏明知的被告依据该法规的条款不构成犯罪。 consequently，明知是相关的，这正是Lennon案所要求的全部。因此，本案与Lennon案有区别。见Matter of Pasquini, 临时决定2496 (BIA 1976)。 关于律师的第二项主张，该法第246条相关部分规定：

Interim Decision #2610

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In those cases in which section 246 is applicable, its provisions must be complied with before deportation proceedings may be instituted. Matter of V— , 7 I. & N. Dec. 863 (BIA 1956). If, within five years of the alien's adjustment of status under section 245, it appears that the alien was ineligible for that adjustment, his permanent resident status must be rescinded pursuant to section 246 before deportation proceedings can be instituted against him. In the present case, rescission proceedings were instituted against the respondent prior to these proceedings. Counsel, however, has raised a question as to whether the respondent had notice of the pro- cedural safeguards guaranteed him in those proceedings. See generally 8 C.F.R. 246. In this case defenses that would have been available to the respondent in rescission proceedings may have been lost for failure to raise them. Under these circumstances, we shall terminate deportation proceedings. The District Director, of course, may determine to reinsti- tute rescission proceedings Against the respondent. That decision lies generally within his discretion. See Matter of Quan, 12 I. & N. Dec. 487 (Deputy Assoc. Column 1967). In view of the above opinion, we need not address the issue of estoppel. ORDER: The appeal is sustained; the proceedings are terminated.

在第246条适用的案件中，必须先遵守其规定，然后才能启动驱逐程序。Matter of V— , 7 I. & N. Dec. 863 (BIA 1956)。如果在外国人依据第245条调整身份后的五年内，显示该外国人不符合该调整资格，则必须依据第246条撤销其永久居民身份，然后才能对其启动驱逐程序。 在本案中，撤销程序是在这些程序之前对申请人启动的。然而，律师对申请人是否获得了那些程序中保证给他的程序保障通知提出了疑问。见8 C.F.R. 246的一般规定。在本案中，申请人在撤销程序中本可获得的抗辩可能因未提出而丧失。在此情况下，我们将终止驱逐程序。地区主任当然可以决定对申请人重新启动撤销程序。该决定一般属于其自由裁量权范围。见Matter of Quan, 12 I. & N. Dec. 487 (Deputy Assoc. Comm'r 1967)。 鉴于上述意见，我们无需处理禁反言问题。 命令：上诉获支持；程序终止。

BY: Milhollan, Chairman; Wilson, Maniatis, and Maguire, Board Members. Concurring Opinion by Board Member Appleman. The Service has moved that we reconsider our decision dated January 27, 1977 sustaining the respondent's appeal and terminating the pro- ceedings. The motion will be denied. In our decision we held that, because five years had not passed since the respondent had his status adjusted to that of a lawful permanent resi- dent under section 245 of the Immigration and Nationality Act, his permanent resident status must be rescinded pursuant to section 246 before deportation proceedings could be instituted against him. Because it appeared that the respondent did not have adequate notice of the procedural safeguards guaranteed him in the rescission proceedings which had been brought against him, we ordered that the deportation proceedings be terminated. We pointed out in our opinion that the decision whether to reinstitute rescission proceedings against him lies within the discretion of the District Director. In view of our decision to terminate, we did nut reach the issue of estoppel which was raised by the respondent.

由：Milhollan，主席；Wilson、Maniatis和Maguire，委员会成员。委员会成员Appleman的协同意见。 移民局提出动议，要求我们重新考虑我们1977年1月27日的决定，该决定维持了答辩人的上诉并终止了程序。该动议将被驳回。 在我们的决定中，我们认定，由于自答辩人根据《移民与国籍法》第245条将其身份调整为合法永久居民以来尚未满5年，因此在对答辩人提起驱逐程序之前，必须依据第246条撤销其永久居民身份。由于看来答辩人未获得充分通知，了解在针对其提起的撤销程序中保障其的程序性保障措施，我们命令终止驱逐程序。我们在意见中指出，是否重新对答辩人提起撤销程序的决定属于地区主任的裁量权范围。鉴于我们决定终止程序，我们未触及答辩人提出的禁反言问题。

The Service presents two issues in its Motioii to Reconsider. First, it contends that the respondent had adequate notice of the rescission proceedings against him. With respect to this issue, the respondent testified that, while he was on vacation, the notice of intention to rescind was mailed to him. The person living in the respondent's home signed the return receipt and informed the respondent by telephone of the contents of the letter. (Tr. p. 12). The notice dated December 23, 1974, advising the respondent that his status had been rescinded was not received by the respondent and was returned to the Service undeliv- ered. (Tr. p. 15). Ordinarily, the notice of intention to rescind provided the respondent would be sufficient under section 246. See 8 C.F.R. 246.1. However, this case presents unusual circumstances, in particular, an intention by the Service to rescind the adjustment on the basis of evidence which was provided by the alien at the time his status was adjusted. Moreover, the respondent was on vacation at the time of the proceedings, and there is evidence that the Service knew it. (Tr. p. 12, 13). The respondent also contends that another Service office informed him that his adjustment could be rescinded only after the commission of a felony. (Tr. 13). Under these circumstances, we conclude that the notice of intention to rescind provided the respondent was insufficient. The respondent did not have an adequate opportunity to be heard—a safeguard provided him under the law. With respect to the first contention of the Service, it is also argued that Matter of Guan, 12 I. & N. Dec. 487 (Dep. Assoc. Comm. 1967), a case cited in our January 27, 1977, decision, is distinguishable. Reference to our decision will show that Matter of (Juan was cited as support for the point that the District Director is not compelled to institute rescis- sion proceedings in every case. His decision is a matter for the exercise of discretion. The Service also contends that an alien whose status is adjusted under section 245 is not thereby exempt from the exclusion and deporta- tion provisions of the Act. We agree. Relying on Matter of V—, 7 I. & N. Dec. 363 (BIA 1956), we merely held that, during the five years subsequent to the alien's adjustment, the adjustment must be rescinded where it appears that the alien was not in fact eligible for the adjust- ment before deportation proceedings can be instituted against him on the basis of his ineligibility. It is the Service's contention that the holding in Matter of V is inapplicable because in the present case, unlike in Matter of V, the ground of ineligibility could have subjected the respondent to deportation prior to the adjustment. We disagree. We are of the opinion that the distinction is not material. The Service also claims that our holding with respect to the neces- sity of first rescinding the adjustment before deportation proceeding can

移民局在其重新考虑动议中提出两个问题。首先，它主张答辩人已获得关于针对其的撤销程序的充分通知。关于这一问题，答辩人作证称，当他正在度假时，撤销意向通知被邮寄给他。居住在答辩人家中的人签署了回执，并通过电话告知答辩人信件内容。（记录第12页）。1974年12月23日发出的通知，告知答辩人其身份已被撤销，但答辩人未收到，且该通知被退回移民局，未送达。（记录第15页）。 通常情况下，向答辩人提供的撤销意向通知根据第246条是充分的。参见8 C.F.R. 246.1。然而，本案呈现不寻常的情况，特别是移民局意图基于该外国人在其身份调整时提供的证据来撤销调整。此外，答辩人在程序进行时正在度假，且有证据表明移民局知道这一点。（记录第12、13页）。答辩人还主张，另一个移民局办公室告知他，只有在实施重罪后其调整才可被撤销。（记录第13页）。在此情况下，我们认定向答辩人提供的撤销意向通知不充分。答辩人没有获得充分的听证机会——这是法律赋予他的保障措施。 关于移民局的第一个主张，还辩称，我们在1977年1月27日决定中引用的案件Matter of Guan，12 I. & N. Dec. 487（Dep. Assoc. Comm. 1967）可区分。参考我们的决定将显示，Matter of Guan被引用来支持以下观点：地区主任并非在每个案件中都必须提起撤销程序。其决定属于行使裁量权的事项。 移民局还主张，根据第245条调整身份的外国人并不因此豁免于该法的排除和驱逐条款。我们同意。依据Matter of V—，7 I. & N. Dec. 363（BIA 1956），我们仅认定，在该外国人调整身份后的5年内，如果看来该外国人实际上不符合调整资格，则在对该外国人基于其不合格而提起驱逐程序之前，必须撤销调整。移民局主张，Matter of V的裁定不适用，因为在本案中，与Matter of V不同，不合格的理由本可在调整之前使答辩人面临驱逐。我们不同意。我们认为该区别不重要。 移民局还声称，我们关于在驱逐程序可提起之前必须首先撤销调整的裁定

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be instituted is erroneous in view of the Attorney General's decision in Matter of S—, 9 I. & N. Dec. 548 (BIA 1961; Attorney General 1962; BIA 1962). In Matter of S—, the Attorney General was presented with a case in which the five year period had passed and the alien was claiming that, as a consequence, he was saved from deportation on grounds which existed prior to the adjustment. In the present case, five years have not passed, since the respondent's status was adjusted. Therefore, Matter of S—, is inapposite. Our decision of January 27, 1977, is correct. The Motion to Reconsider will be denied. ORDER: Motion to Reconsider is denied.

是错误的，鉴于司法部长在Matter of S—，9 I. & N. Dec. 548（BIA 1961；司法部长1962；BIA 1962）中的决定。在Matter of S—中，司法部长面对的案件是5年期限已过，该外国人主张因此他免于基于调整前存在的理由被驱逐。在本案中，自答辩人身份调整以来尚未满5年。因此，Matter of S—不适用。 我们1977年1月27日的决定是正确的。重新考虑动议将被驳回。 命令：重新考虑动议被驳回。

Respondent is a 29-year-old native and citizen of Great Britain. He entered the United States as a nonimmigrant visitor in 1973, married a United States citizen on September 27, 1973, and in November of 1973 filed an application for adjustment of status as permanent resident. In his application he disclosed two convictions in England for possession of marijuana, in 1968, for which he received a $50 fine, and in 1973, for which he received a $100 fine. The records of these convictions were presented to the Service adjudicator, after which the application was approved, and on October 1, 1974, his status was adjusted to that of a lawful permanent resident. On November 13, 1974, an Acting District Director sent a letter to the respondent advising of an intention to rescind the adjustment. The respondent, who at the time was in Mexico, never received this letter, but was advised telephonically of its contents through a friend. On December 23, 1974, a letter notifying the respondent that his permanent resident status had been rescinded was sent to the respondent. It was returned undelivered. At no time did the respondent demand a hearing, under 8 C.F.R. 246, nor did he ever receive one. These deportation proceedings were begun by service of an Order to Show Cause on October 2, 1975. He is charged with deportability under section 241(a)(11), 8 U.S.C. 1251(a)(11), because of the narcotic convic- tions. In our decision of February 4, 1977, sustaining the appeal and ter- minating proceedings, we noted that the respondent had raised three contentions. The first of these, relating to the Second Circuit decision in Lennon, v. INS, 527 F.2d 187 (1975), was ruled on adversely to the respondent, because we are concerned with a different statute than in Lennon. As to the second, we found merit, in the somewhat unusual facts of the case, to the argument that there was doubt -whether the respondent had adequate notice of the procedural safeguards guaran- teed him under section 246 of the Act (8 U.S.C. 1256), and 8 C.F.R. 246.

答辩人是29岁的英国本土公民。他于1973年作为非移民访客进入美国，于1973年9月27日与美国公民结婚，并于1973年11月提交了作为永久居民调整身份的申请。在其申请中，他披露了在英国的两项持有大麻定罪，1968年的一项，被处以50美元罚款，1973年的一项，被处以100美元罚款。这些定罪的记录被提交给移民局裁决人，之后申请获得批准，并于1974年10月1日，其身份被调整为合法永久居民。 1974年11月13日，代理地区主任致信答辩人，告知有意撤销调整。答辩人当时在墨西哥，从未收到此信，但通过一位朋友以电话方式获知了信件内容。1974年12月23日，一封通知答辩人其永久居民身份已被撤销的信件被寄给答辩人。该信被退回，未送达。答辩人从未根据8 C.F.R. 246要求听证，也从未获得听证。 这些驱逐程序于1975年10月2日通过送达出庭通知开始。他因毒品定罪被指控根据第241(a)(11)条、8 U.S.C. 1251(a)(11)可被驱逐。 在我们1977年2月4日维持上诉并终止程序的决定中，我们注意到答辩人提出了三项主张。第一项涉及第二巡回法院在Lennon v. INS，527 F.2d 187（1975）中的判决，该主张被裁定不利于答辩人，因为我们涉及的是与Lennon不同的法规。关于第二项，我们在本案有些不同寻常的事实中，认定以下论点有道理：答辩人是否获得关于《移民与国籍法》第246条（8 U.S.C. 1256）和8 C.F.R. 246所保障的程序性保障措施的充分通知存在疑问。

I

I

It will be noted that this alien, adjudicated a lawful permanent resi- dent in 1974, would have defenses available to him in a rescission proceeding which are not available to him in these deportation proceed- ings. An initial consideration would be whether the institution of rescis- sion proceedings was warranted. While rescission may occur, in the literal language of the statute, for "lack of eligibility" alone (Section 246, 8 U.S.C. 1256), it is, in the experience of this Member, most unusual to attempt, rescission where some element of fraud or concealment was not involved in the adjustment. Respondent could certainly argue that the congressional intent of the rescission provision did not cover one in his position. Alternatively, he could urge that as a matter of prosecutive judgment, quite apart from estoppel, having fully disclosed a relatively minor arrest record,' and having effected complete rehabilitation (so far as the record before us reveals) the Service should not pursue rescis- sion. More importantly, in rescission proceedings, the alien could raise the estoppel issue in the direct framework of the claimed prejudicial action, with appropriate appeals and review if decision were adverse. In contrast, in deportation proceedings, if rescission is viewed as a fait accompli, the respondent has lost his favored status as a lawful permanent resident, and the inquiry- is limited to the lawfulness of his status before the adjustment occurred—in this case, whether in 1974 he had remained longer as a nonimmigrant than authorized. (Section 246 S U.S.C. 1256). There is no question that the respondent was seriously prejudiced by the failure to have a hearing in the rescission proceedings_ The vigor with which the Service resists affording him that opportunity is some- what startling, given the somewhat unusual facts of the case. It is a fact that the respondent did not receive the letter advising of an intention to rescind. There is considerable question, from this record, what was read to him during the long distance telephone call by his "friend." Respon-

应当指出，这位于1974年被裁定为合法永久居民的外国人，在撤销程序中本可拥有在这些驱逐程序中无法获得的抗辩。首先应考虑的是，提起撤销程序是否有正当理由。虽然按照法规的字面语言，撤销可仅因“不合格”而发生（第246条，8 U.S.C. 1256），但根据本成员的经验，在调整中不涉及某种欺诈或隐瞒因素的情况下尝试撤销，是非常不寻常的。答辩人当然可以主张，撤销条款的国会意图并不涵盖处于其地位的人。或者，他可以主张，作为起诉判断的问题，与禁反言完全无关，在充分披露了相对轻微的逮捕记录¹并已实现完全康复（就我们面前的记录所显示而言）的情况下，移民局不应追求撤销。更重要的是，在撤销程序中，该外国人可以在所称不利行动的直接框架中提出禁反言问题，如果决定不利，还可适当上诉和复审。 相比之下，在驱逐程序中，如果撤销被视为既成事实，答辩人已失去其作为合法永久居民的有利身份，调查仅限于其调整前身份是否合法——在本案中，即1974年他作为非移民是否停留超过授权期限。（第246条，8 U.S.C. 1256）。 毫无疑问，答辩人因撤销程序中未举行听证而受到严重不利影响。鉴于本案有些不同寻常的事实，移民局如此强烈地拒绝给予他这一机会，有些令人吃惊。事实是，答辩人没有收到告知撤销意向的信件。从本记录来看，在他的“朋友”打长途电话时究竟向他宣读了什么，存在相当大的疑问。答辩

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dent's letter of December 9, 1974, from Mexico (Ex. 5) says that he has "heard of the allegations." Was he also fully aware of his rights to a hearing and to make a defense? His letter does not indicate it. On the contrary it reveals a woeful ignorance of his position. Far from reflect- ing an understanding that the Service letter was a Notice Of Intention To Rescind, only; he appears to have accepted the letter as a determina- tion of deportability, something which may or may not occur after rescission takes place and which usually requires the instutition of separate proceedings, as this case illustrates. Nowhere does Exhibit 5 reflect respondent's understanding of his rights under the law. On the contrary he asks for "compassion" and "understanding," and for a few months to put his affairs in order before le aving. He states his intention to contact the Service on arrival in the United States. Two weeks later, after an in absentia determination, the letter advising of the fact of rescission went out. One cannot help question the "compassion" and "understanding' re- ceived by this lawful permanent resident, married to a United States citizen, with a United States citizen child, who after complete disclosure of his "crimes," suddenly gets word, as he erroneously understands it, that his permanent residence has already been taken away and he must leave the country forthwith. In these circumstances I completely concur in that portion of the majority decision which rejects the Service argu- ment that there was adequate compliance with procedural due process requirements in the rescission action. In this connection it is worth noting that the burden the United States bears in a rescission proceed- ing is the same clear, convincing and unequivocal burden borne in deportation, Waziri v. INS, 392 F.2d 55 <9 Cir. 1968).

1974年12月9日来自墨西哥的答辩人信件（证物5）称，他已“听说了这些指控”。他是否也充分知晓其获得听证和进行辩护的权利？他的信件并未表明这一点。相反，它显示出对其处境的可悲无知。该信远未反映出他理解移民局信件仅是一份撤销意向通知；他似乎已将该信视为可驱逐出境的裁定，而这种情况在撤销发生后可能发生也可能不发生，并且如本案所示，通常需要启动单独的程序。证物5中没有任何地方反映出答辩人对其法律下权利的理解。相反，他请求“同情”和“理解”，并请求给他几个月时间在离开前处理事务。他表示打算在抵达美国后联系移民局。两周后，在作出缺席裁定之后，告知撤销事实的信件发出了。 人们不禁要质疑这位合法永久居民所得到的“同情”和“理解”——他与一名美国公民结婚，育有一名美国公民子女，在完全披露其“罪行”后，突然得知（正如他错误理解的那样）他的永久居留权已被剥夺，他必须立即离开该国。在此情况下，我完全赞同多数意见中驳回移民局论点的那部分，即撤销行动中已充分遵守程序性正当程序要求。在这方面值得指出的是，美国在撤销程序中承担的举证责任与驱逐出境中承担的相同，即明确、令人信服且毫不含糊的责任，Waziri v. INS, 392 F.2d 55 (9 Cir. 1968)。

II It is the further contention of the Service that this alien is subject to deportation proceedings in any event, and even without the institution of rescission proceedings, since the ground for deportation existed prior to the adjustment of status. As to this I am in agreement with the majority that the interpretation given the statute by the Attorney General in Matter of S — , 9 I. & N. Dec. 548, (BIA 1962), does not warrant the conclusion the Service urges, but I reach that result for somewhat different reasons. Matter of S — was an exclusion proceeding. The alien fraudulently obtained an adjustment of status in April. 1955, concealing the fact that he had obtained a visa by fraud in 1949_ No rescission occurred within five years. Instead, the facts came to light when he attempted to reenter the United States in August 1960, as a lawfully returning resident alien after a visit abroad. The Board held that the passing of the five years operated as a statute of limitation barring exclusion on

II 移民局进一步主张，该外国人无论如何都须受驱逐出境程序约束，即使不启动撤销程序亦然，因为驱逐出境的理由在调整身份之前即已存在。对此，我同意多数意见，即司法部长在Matter of S —, 9 I. & N. Dec. 548, (BIA 1962)中对法规的解释并不支持移民局所主张的结论，但我得出该结果的理由略有不同。 Matter of S —是一起排斥程序。该外国人在1955年4月以欺诈手段获得身份调整，隐瞒了他于1949年以欺诈手段获得签证的事实。五年内未发生撤销。相反，事实是在他于1960年8月作为合法返回居民外国人在出国访问后试图重新进入美国时才暴露出来。委员会裁定，五年期限的经过起到时效法规的作用，禁止以

any ground which existed prior to the adjustment. Pointing to the Congressional history, the Attorney General noted that adjustment under section 245 was never intended to confer greater rights than those enjoyed by a permanent resident who gained his status through entry with an immigrant visa. Since there exists no statute of limitation as to the latter, and he may be deported or excluded at any time, for proper cause, the same treatment must be accorded the alien adjusted under section 245, the replacement for the old preexamination procedure. What then is the effect and meaning of the five-year limitation in section 246, on rescission of permanent resident status? In this area Matter of 8— is somewhat vague, and one can readily appreciate the Service difficulty in applying the provision. The solution the Service offers here, however, is for all practical purposes, to read section 246 out of the statute altogether. I cannot agree that Congress intended section 246 to be that meaningless. The majority decision points to one instance where section 246 should be applicable, i.e., where deportation (or exclusion) is sought, as here, within the five-year period. This has the virtue of reconciling Matter of S—, as the Attorney General pointed out, with the earlier decision of this Board in Matter of V—, 7 I. & N. Dec. 363 (BIA 1956). In the Attorney General's language, in Matter of V— (as here) the rescission procedure, specifically provided to determine the issue of the alien's ineligibility for the record of lawful admission, was "available," the five years not yet having elapsed; whereas in Matter of S— this was not the case. The majority decision thus finds some support in Matter of S—. However, the implication which flows from this is that within the five years a deportation or exclusion proceeding based on a ground render- ing the alien ineligible for the adjustment must be preceded by rescis- sion, but that after the five years there need be no compliance with section 246. The difficulty with this is the lack of any reason for such a distinction. On the contrary, why should the alien who had been a lawful permanent resident for more than five years, with correspondingly greater equities, be in a far worse position than one who has resided here for a shorter period of time? In my opinion section 246 does permit of another interpretation. As to any ground of deportation or exclusion, known and embraced by the grant of adjustment of status, the five-year rule should apply with full force, and operate as a full statute of limitations. As to any ground arising before the grant of adjustment, and not known at the time of adjustment, deportation or exclusion proceedings should lie without regard to rescission and the five-year rule. 2 In short, section 245 should be read as a waiver and adjustment of known grounds of disability. As

调整之前存在的任何理由进行排斥。司法部长指出国会历史，指出第245条下的调整从未意图赋予比通过移民签证入境获得身份的永久居民所享有的更大权利。由于对后者不存在时效法规，且可因正当理由在任何时候将其驱逐或排斥，因此必须对根据第245条调整的外国人给予相同待遇，该条取代了旧的预审查程序。 那么第246条中关于撤销永久居民身份的五年限制的效果和意义是什么？在这一领域，Matter of 8—有些含糊，人们可以很容易理解移民局在适用该条款时的困难。然而，移民局在此提供的解决方案实际上是将第246条从法规中完全删除。我不能同意国会意图让第246条变得如此毫无意义。 多数意见指出第246条应当适用的一种情形，即如本案一样，在五年期限内寻求驱逐出境（或排斥）。这具有调和Matter of S—（如司法部长所指出的）与本委员会早先Matter of V—, 7 I. & N. Dec. 363 (BIA 1956)裁决的优点。用司法部长在Matter of V—中的话说（如本案），专门为裁定外国人无资格获得合法入境记录问题而规定的撤销程序是“可用的”，五年尚未届满；而在Matter of S—中则并非如此。因此，多数意见在Matter of S—中找到了一些支持。然而，由此产生的含义是，在五年内，基于使外国人无资格获得调整的理由而进行的驱逐出境或排斥程序必须先经过撤销，但五年之后则无需遵守第246条。这一点的困难在于缺乏作出这种区分的任何理由。相反，为什么一个已成为合法永久居民超过五年、具有相应更大衡平权益的外国人，其处境应远差于在此居住较短时间的人？ 在我看来，第246条确实允许另一种解释。对于任何已知且被身份调整授予所涵盖的驱逐出境或排斥理由，五年规则应充分适用，并作为完整的时效法规运作。对于在调整授予之前产生且在调整时未知的任何理由，驱逐出境或排斥程序应当不受撤销和五年规则的限制。2 简言之，第245条应被解读为对已知无能力理由的豁免和调整。至于

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to these, if the Service is to deport or exclude, it must first rescind under section 246, and must do so within five years. As to all other grounds the alien is no different from any other permanent resident. With this interpretation the Congressional intent is given meaning and the existing case law reconciled. Applied here, this interpretation clearly dictates the necessity of a rescission proceeding, and for this reason I have concurred in the result reached by the majority. For the reasons set forth in part I of this opinion, this case is best resolved by a swift and merciful termination of the deportation proceedings.

对于这些理由，如果移民局要驱逐或排斥，必须首先根据第246条撤销，并且必须在五年内这样做。对于所有其他理由，该外国人与任何其他永久居民无异。通过这一解释，国会意图被赋予意义，现有判例法得到调和。 适用于本案，这一解释明确规定了撤销程序的必要性，因此我赞同多数意见所达成的结果。基于本意见第一部分所述理由，本案最好通过迅速而仁慈地终止驱逐出境程序来解决。