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United States Court of Appeals,
Fifth Circuit.
No. 93-5436
Summary Calendar.
Guiseppe CIPRIANO, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
July 5, 1994.
Petition for Review of an Order of the Immigration and
Naturalization Service.
Before POLITZ, Chief Judge, DAVIS and SMITH, Circuit Judges.
POLITZ, Chief Judge:
Guiseppe Cipriano petitions for review of the denial of relief
from deportation by the Board of Immigration Appeals. We grant
review in part, vacate in part, and remand for further proceedings.
Background
Cipriano, a native and citizen of Italy, entered the United
States in 1956 as a five-year-old child and became a permanent
lawful resident. He was deported in 1975 because of convictions
for theft of an automobile, attempted larceny under $100, obtaining
less than $100 under false pretenses, and conspiring to possess a
$20 counterfeit bill. With only one relative in Italy and unable
to speak the language, in short order Cipriano surreptitiously
returned to the United States. In 1980 he was found possessed of
two grams of heroin and a firearm and was convicted of both
offenses. He served 14 months of a five-year sentence. During his
incarceration he recovered from a drug dependency. He also was
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convicted of re-entering the United States after deportation in
violation of 8 U.S.C. § 1326, serving 179 days of a two-year
sentence for that offense and two additional months for parole
violation. Upon his release from prison in June 1985, Cipriano
obtained employment with an automotive parts wholesaler and rapidly
rose through the ranks to the position of Operations Manager. He
moved in with his elderly parents and supports them.
In 1988 the Immigration and Naturalization Service initiated
a second round of deportation proceedings, charging that Cipriano
had entered the United States without inspection in violation of
section 241(a)(2) of the Immigration and Nationality Act.1 An
immigration judge ordered deportation to Italy and denied his
applications for discretionary relief. The Board of Immigration
Appeals affirmed on statutory grounds; Cipriano timely petitioned
for review.
Analysis
Cipriano contests the Board's denial of his applications for
waiver of deportation under section 212(c)2 and for suspension of
deportation under section 244(a)(1).3 Section 212(c) authorizes
the Attorney General to waive deportation for aliens with seven
consecutive years of lawful unrelinquished domicile in the United
States. Cipriano does not qualify for such relief from the pending
18 U.S.C. § 1251(a)(2) (now codified at 8 U.S.C. §
1251(a)(1)(B)).
28 U.S.C. § 1182(c).
38 U.S.C. § 1254(a)(1).
2

deportation order because the 1975 order of deportation terminated
his status as a lawful resident. He insists, however, that he is
eligible for nunc pro tunc relief from the 1975 order. Our
precedents foreclose review of that claim. In Umanzor v. Lambert4
and again in Quezada v. INS5 we held that 8 U.S.C. § 1105a(c)
precludes judicial review of orders of deportation after departure
from the United States.6 Cipriano maintains that deportation
pursuant to an allegedly unconstitutional order does not trigger
this jurisdictional infirmity. We rejected that proposition in
Quezada, noting that the exception urged by Cipriano, where
recognized, "has become a sinkhole that has swallowed the rule of
1105a(c)."7
United States v. Mendoza-Lopez,8 on which Cipriano relies,
does not hold to the contrary. Therein the Supreme Court allowed
a collateral attack on a deportation order which was used to
establish an element of a criminal offense where judicial review of
the administrative order previously had been unavailable. The
instant proceeding is not criminal. The Court explicitly reserved
the question at issue herein: whether post-departure judicial
4782 F.2d 1299 (5th Cir.1986).
5898 F.2d 474 (5th Cir.1990).
68 U.S.C. § 1105a(c) provides in pertinent part:
An order of deportation ... shall not be reviewed by any
court if the alien ... has departed from the United States
after the issuance of the order.
7898 F.2d at 476 (internal quotation omitted).
8481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987).
3

review of an allegedly unconstitutional deportation order is
available in the context of deportation proceedings.9
We are persuaded, however, that the Board erred in finding
Cipriano ineligible as a matter of law for suspension of
deportation under section 244(a)(1). To obtain such relief, an
applicant must establish seven years of continuous physical
presence, good moral character, and severe hardship if deportation
occurs. Section 101(f)(7)10 precludes a finding of good moral
character if the applicant was incarcerated for 180 days or more
during the seven-year period. The Board determined that section
101(f)(7) barred Cipriano's efforts to establish good moral
character because he was incarcerated from October 1984 until June
1985, within seven years prior to his original application for
section 244(a)(1) relief. Cipriano argues that the Board should
have looked back seven years from the date of its decision on
September 20, 1993. That reflection would have placed his period
of imprisonment outside the relevant time frame. We are
constrained to agree.
In Vargas-Gonzalez v. INS,11 we reversed a denial of section
244(a)(1) relief and remanded the case to the Board when the
applicant's seven-year eligibility period accrued during the
pendency of his non-frivolous petition for review. The facts of
9481 U.S. at 837 n. 13, 107 S.Ct. at 2154 n. 13 (stating
that the opinion expresses no view about the holding in Mendez v.
INS, 563 F.2d 956 (9th Cir.1977)).
108 U.S.C. § 1101(f)(7).
11647 F.2d 457 (5th Cir.1981).
4

the instant case merit similar treatment. Cipriano's appeal had
substance and therefore does not trigger concerns that it was filed
solely for purposes of delay.12 His challenge to the
constitutionality of the 1975 deportation proceeding, in which he
was not advised of the availability of a section 212(c) waiver,
finds support in the INS's longstanding recognition, predating the
seminal case of Francis v. INS,13 of the whimsy of limiting such
waivers to exclusion cases.14 With the removal of the statutory bar
to establishing good character, Cipriano may make a substantial
showing of entitlement to relief, particularly in light of his 40
years of residence in this country, his drug dependency
rehabilitation, current employment, and response to family
obligations. Accordingly, we vacate the order of the Board insofar
as it dismissed Cipriano's application for section 244(a)(1) relief
on statutory grounds and remand for consideration of that
application on the merits.
Petition for review DENIED in part, GRANTED in part, and the
matter is REMANDED for further proceedings consistent herewith.

12Cf. Prichard-Ciriza v. INS, 978 F.2d 219 (5th Cir.1992)
(refusing to allow a section 212(c) applicant to count the time
that his appeal was pending with the Board toward the seven-year
requirement when the appeal was frivolous).
13532 F.2d 268 (2d Cir.1976).
14See id. Had Cipriano been afforded an opportunity to
apply for a waiver of deportation in 1975, he might well have
been successful in light of the length of his residence in the
United States and the relatively minor nature of his offenses.
5