JUAREZ

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MATTER OF JUAREZ
In Deportation Proceedings
A-29993357
Decided by Board June 20, 1991

(1) The status of a lawful temporary resident alien under the special agricultural worker
program who subsequently commits a deportable offense is not required to be
terminated as a condition precedent to the commencement of deportation proceed-
ings. Matter of Medrano, 20 1&N Dec. 216 (BIA 1990, 1991), distinguished.

(2) The protection against the execution of an order of deportation afforded by section
210(d) of the Immigration and Nationality Act, 8 U.S.C. § 1160(d) (1988), does not
apply to an alien who has been granted temporary resident status, who commits a
deportable offense after acquiring such status, and who is subject to a final order of
deportation by an immigration judge based on a determination that the alien is
deportable for such offense under section 241(a) of the Act, 8 U.S.C. § 1251(a) (1988).

CHARGE:

Order: Act of 1952-Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]-Entered without inspection

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Lee Salas, Esquire!

Robert T. Burton

Salas &amp; McCarthy

General Attorney

1715 Avenue K, Suite 203

Plano, Texas 75074

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated May 21, 1990, an immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), as an alien who entered
the United States without inspection, and ordered him deported from
the United States to Mexico. The respondent has appealed from that
decision. The appeal will be dismissed.

The Order to Show Cause and Notice of Hearing (Form I-221) was
issued against the respondent on January 22, 1990. The Order to Show
Cause alleges that the respondent entered the United States without
inspection near Del Rio, Texas, on or about January 21, 1990. At the
hearing, the respondent testified that even though he had a special

1 The respondent appeared pro se at his deportation hearing.

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agricultural worker ("SAW") card, he entered the United States
without inspection on January 21, 1990, as he was assisting two aliens
to enter the United States without inspection. A conviction record
offered into evidence by the Immigration and Naturalization Service
reflects that on January 23, 1990, the respondent was convicted in the
United States District Court for the Western District of Texas for the
offense of knowingly and willfully aiding and abetting another alien's
entry into the United States without inspection in violation of 8 U.S.C.
§ 1325 (1988) and 18 U.S.C. § 2 (1988). The respondent's deporta-
bility under section 241(a)(2) of the Act, as an alien having entered the
United States without inspection, has been established by clear,
unequivocal, and convincing evidence by the Service's proof and the
respondent's concessions at the deportation hearing. See 8 C.F.R.
§ 242.14(a) (1990); Woodby v. INS, 385 U.S. 276 (1966).

On appeal, the respondent contends that he may not be deported
because his temporary resident status has not been revoked.2 See
section 210(a)(3)(A) of the Act, 8 U.S.C.A. § 1160(a)(3)(A) (West
Supp. 1990). The respondent cites section 210(d)(2)(A) for the
proposition that he is not deportable until a final determination is
made in his SAW case.

The record indicates that the respondent has been granted lawful
temporary resident status pursuant to section 210(a)(1) of the Act
(SAW provisions) and that such status was granted prior to the
respondent's entry without inspection on January 21, 1990, and the
issuance of the Order to Show Cause on January 22, 1990. We note,
however, that no documentary evidence corroborating the grant of this
status or the date such status was granted was presented at his
deportation proceedings. At the hearing, counsel for the Service stated
that the respondent's temporary resident status had not been terminat-
ed. For purposes of this decision, we will assume the truth of the
respondent's claims that he was granted temporary resident status
pursuant to section 210(a)(1) of the Act, that such status was granted
prior to his last entry into the United States without inspection and the
issuance of the Order to Show Cause,3 and that such status has not
been terminated.

There are two fundamental questions which must be resolved in this
case. The first question that arises is whether the Service is required to

2On appeal, the respondent has proffered his temporary resident registration number.
3 In addition to the respondent's testimony that he had a SAW card at the time of
entry without inspection on January 21, 1990, we note that the application period for
temporary resident status under section 210(a)(1)(A) of the Act had to be during the 18-
month period beginning on the 1st day of the 7th month that began after the date of
enactment of the section, which was November 6, 1986. See Immigration Reform and
Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359.

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terminate, as a condition precedent to the commencement of deporta-
tion proceedings, the lawful temporary resident status granted to an
alien as a special agricultural worker who commits a deportable
offense after he has acquired temporary residence in this country. In
the Board's recent decision in Matter of Medrano, 20 I&N Dec. 216
(BIA 1990, 1991), we held that the status of a lawful temporary
resident alien under section 245A of the Act, 8 U.S.C. § 1255a (1988),
who commits a deportable offense after he has acquired such
residence, must be terminated as a condition precedent to the
commencement of deportation proceedings. However, we do not find
that holding to be applicable in the instant case. Matter of Medrano
concerned an alien who had been granted lawful temporary resident
status pursuant to section 245A of the Act, while the case before us
concerns an alien who was granted lawful temporary resident status
pursuant to section 210 of the Act. In some important respects, the
termination of temporary resident status differs markedly under these
two sections of the Act.

The statutory provision concerning the termination of temporary
residence at section 245A(b)(2) of the Act and the federal regulation
implementing the termination procedure at 8 C.F.R. § 245a.2(u)
(1991) clearly contemplate that the termination process will precede
the commencement of deportation proceedings against an alien. See
Matter of Medrano, supra. In contrast, section 210(a)(3) of the Act
provides as follows:

(A) During the period of temporary resident status granted an alien under paragraph
(1) [special agricultural worker provisions], the Attorney General may terminate such
status only upon a determination under this Act that the alien is deportable.

(B) Before any alien becomes eligible for adjustment of status under paragraph (2),
the Attorney General may deny adjustment to permanent status and provide for
termination of the temporary resident status granted such alien under paragraph (1)
if-

(i) the Attorney General finds by a preponderance of the evidence that the
adjustment to temporary resicient status was the result of fraud or willful misrepre-
sentation as set out in section 212(a)(19),4 or

(ii) the alien commits an act that (I) makes the alien inadmissible to the United States
as an immigrant, except as provided under subsection (c)(2), or (II) is convicted of a
felony or 3 or more misdemeanors committed in the United States.5

The respondent in the instant case is deportable as an alien who
entered the United States without inspection under section 241(a)(2)

4Revised and redesignated as section 212(a)(6)(C)(i) of the Act by section 601 of the
Immigration Act of 1990, Pub. I .. No. 101-649, 104 Stat. 4978, 5073 (effective Nov. 29.
1990).

5 Section 210(a)(3)(B) was inserted by section 4(a)(2) of the Immigration Nursing
Relief Act of 1989, Pub. L. No. 101-238, 103 Stat. 2099, 2103 (effective Dec. 18, 1989).

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of the Act, after having been granted temporary resident status as a
special agricultural worker. A determination of the respondent's
deportability has been made by an immigration judge under the Act.
The respondent is accordingly subject to having his temporary resident
status under section 210(a)(1) of the Act terminated pursuant to
section 210(a)(3)(A) of the Act.

In accordance with the statutory provisions for the termination of
temporary residence, the Service has promulgated a regulation provid-
ing for the termination of an alien's temporary residence which is
codified at 8 C.F.R. § 210.4(d) (1991). That regulation provides in
pertinent part:

(1) The temporary resident status of a special agricultural worker is terminated
automatically and without notice under section 210(a)(3) of the Act upon entry of a
final order of deportation by an immigration judge based on a determination that the
alien is deportable under section 241 of the Act.

(2) The status of an alien lawfully admitted for temporary residence under section
210(a)(2) of the Act,6 may be terminated before the alien becomes eligible for
adjustment of status under § 210.5 of this part, upon the occurrence of any of the
following:

(i) It is determined by a preponderance of the evidence that the adjustment to
temporary resident status was the result of fraud or willful misrepresentation as
provided in section 212(a)(19) of the Act;

(ii) The alien commits an act which renders him or her inadmissible as an
immigrant, unless a waiver is secured pursuant to § 210.3(e)(2) of this part;

(iii) The alien is convicted of any felony, or three or more misdemeanors in the
United States.

(3) (i) Termination of an alien's status under paragraph (d)(2) of this section will be
made only on notice to the alien sent by certified mail directed to his or her last
known address, and to his or her representative ....

(ii) Termination proceedings must be commenced before the alien becomes
eligible for adjustment of status under § 210.5 of this part. The timely commence-
ment of termination proceedings will preclude the alien from becoming a lawful
permanent resident until a final determination is made in the proceedings, including
any appeal.7 (Emphasis added.)

Even though 8 C.F.R. §§ 210.4(d)(2) and (3) (1991) have been
amended to provide for notice requirements and the procedure for the
termination of the temporary resident status upon the occurrence of
certain events, it is not the exclusive means by which such status may
be terminated. Pursuant to 8 C.F.R. § 210.4(d)(1) (1991), the tempo-
rary resident status of a special agricultural worker is automatically
terminated without notice when an immigration judge enters a final

"The reference to section 2 10(a)(2) of the Act should probably be to section 210(a)(1).
7 Effective April 5, 1990, 8 C.F.R. § 210(d)(2) was revised and 8 C.F.R. § 210(d)(3)
was added. 55 Fed. Reg. 12,629 (1990).

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order of deportation based on a determination of deportability under
section 241 of the Act. See also section 210(a)(3)(A) of the Act.

Therefore, our review of the provisions concerning the termination
of temporary resident status granted to an alien as a special agricultur-
al worker under section 210 of the Act, as well as the regulation
implementing the termination procedure, leads us to the conclusion
that the Service is not required to terminate, as a condition precedent
to the commencement of deportation proceedings, the lawful tempo-
rary resident status of an alien who commits a deportable offense after
he has acquired temporary residence in this country and who is subject
to a final order of deportation by an immigration judge based on a
determination that the alien is deportable under section 241 of the Act
for this deportable offense. However, we further conclude that where
termination of the temporary resident status granted an alien as a
special agricultural worker is sought based on one of the enumerated
grounds set forth in section 210(a)(3)(B) of the Act and there is no
determination under the Act that the alien is deportable, the Service
must comply with the notice and procedural requirements set forth in
8 C.F.R. § 210.4(d)(3) (1991). Also, the Board wishes to point out that
an alien who, after having established that he is admissible to the
United States as an immigrant, has been granted lawful temporary
resident status as a special agricultural worker, may not be placed in
deportation proceedings for a deportable offense committed prior to
the grant of temporary resident status unless and until the termination
of such status is made in compliance with the notice and procedural
requirements set forth in 8 C.F.R. §§ 210.4(d)(2) and (3) (1991).

Accordingly, in the case before us, the immigration judge properly
proceeded with the deportation hearing even though the record
indicates that the respondent's temporary resident status as a special
agricultural worker had not been terminated prior to the commence-
ment of deportation proceedings because the respondent had been
found deportable under section 241(a)(2) of the Act for entry without
inspection after he acquired the temporary resident status.

The second question that is raised in this case is whether the Service
may deport the respondent pursuant to the order of deportation
entered against him. The respondent cites section 210(d)(2) of the Act
in support of his argument that he cannot be deported until a final
determination on his application for adjustment of status as a special
agricultural worker has been completed. Initially, we note that, as with
all orders of deportation, no alien may be deported until the order of
deportation becomes final. See section 242 of the Act, 8 U.S.C. § 1252
(1988); & C.F.R. § 243.3 (1991). Furthermore. section 210(d) of the
Act provides only for a stay of the execution of an exclusion or
deportation order and does not preclude the entry of an exclusion or

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\+

deportation order. Thus, the question before us becomes whether the
order of deportation entered against the respondent may be executed
when it becomes final.

Section 210(d)(2) of the Act specifies that a stay is provided "in the
case of an alien who presents a nonfrivolous application for adjust-
ment of status under subsection (a) during the application period, and
until a final determination on the application has been made." The
respondent's application was completed when he was granted tempo-
rary resident status as a special agricultural worker. Any adjustment to
permanent resident status is not by application but occurs as a matter
of course according to a time schedule set forth in section 210(a)(2) of
the Act. See 8 C.F.R. § 210.5 (1991). Also, the implementing
regulation at 8 C.F.R. § 210.2(c)(4)(iv) (1991) only refers to a stay of
deportation during the application process for temporary resident
status. Moreover, once the temporary resident status has been
terminated upon entry of a final order of deportation by an immigra-
tion judge based on a determination that the alien is deportable for an
offense committed after temporary residency was acquired, there is no
provision for adjustment of status to permanent residence. Any
possible waiver which may be available pursuant to sections
210(a)(3)(B) and (c)(2) of the Act pertain to the termination of
temporary resident status based on one of the enumerated grounds sct
forth in section 210(a)(3)(B), and such waiver may be applied for only
in a termination proceeding conducted by the Service in compliance
with the governing regulations at 8 C.F.R. §§ 210.4(d)(2) and (3)
(1991). As previously noted, the notice and procedural requirements
set forth in 8 C.F.R. §§ 210.4(d)(2) and (3) (1991) govern such
proceedings. Neither the immigration judge nor this Board may make
any determination regarding the alien's eligibility for temporary
resident status or permanent resident status. Section 210(e) of the Act;
see also 8 C.F.R. §§ 210.1 -. 5 (1991).

We therefore conclude that the protection against the execution of
an order of deportation afforded by section 210(d) of the Act does not
apply to an alien who has been granted temporary resident status, who
commits a deportable offense after acquiring such status, and who is
subject to a final order of deportation by an immigration judge based
on a determination that the alien is deportable for such offense under
section 241(a) of the Act.

We further find that on the record before us, the respondent has no
apparent eligibility for any relief from deportation. The respondent
has made no application for relief.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.