Benjamin Lepe-Guitron v. Immigration and Naturalization Service

provide posses- 1782 itself does not a statu- lected and still in the Since commissioners’ sion. circumstances, remedy tory for these we are equitable remedy. Ap- to fashion an asked Because may the commissioners have all

pellants argue evidentiary seek, that the district court has the appellants materials questions need not decide the difficult authority wheth- expansive suppress not all can, law, er the district cоurt as a matter provided pursuant to in evidence the Tokyo order the District Prosecutor’s Office Tokyo District trial but Court also to order evidence, to turn over and equity whether proceedings dismissal of criminal trial the would so on the facts of this case. Tokyo. power, appel- The court has such note, however, We do questions these contend, Tokyo lants because the District raise serious concerns of internаtional comi- jurisdic- Prosecutor’s Office submitted to the ty,6 by ordering Tokyo because District tion of district court when it obtained the Prosecutor’s Office to turn over evidence— discovery. support, court’s assistance something Japanese it need not do under appellants Request from, re cite In Letter sending message law—we would risk Supreme Hong Kong, Court 138 disrespect Japanese proce- laws and (S.D.N.Y.1991) (hereinafter Hong F.R.D. 27 dures.7 Kong). CONCLUSION Although Hong Kong the facts of Tokyo Prosecutor’s office had authori- us, Hong Kong similar the facts before ty apply person” as an “interested distinguishable important respect: in one assistance under 28 U.S.C. 1782. Howev- case, er, already the evidence had not been the evidence was taken in violation of provisions notice of the Federal foreign Rules of submitted to the tribunal. Even if remedy, Civil Procedure. As the we vacate adopt Hong Kong’s analysis we were to and appeal two district court orders on and Tokyo hold that the District Prosecutor’s Of proceedings remand for further consistent jurisdiction had submitted itself to the fice opinion. with this court, certainly the district does Tokyo mean that the District Court had sub similarly. itself

mitted The record shows already the evidence has been intro Japanese

duced court and the case submitted for decision. The district court Benjamin LEPE-GUITRON, Petitioner, power adopt

has no and enforce an exclu courts, sionary Japanese rule of evidence for AND IMMIGRATION surely power it has no to dismiss a case SERVICE, NATURALIZATION pending Japanese judicial system. in Respondent. Tokyo In contrast to the District No. 92-70505. Court, are, ques the commissioners without Appeals, United States Court of tion, subject equitable powers of the Ninth Circuit. appointed court that district them. Accord Dec. 1993*. Submitted ingly, appellants’ remedy is a district court Decided Feb. directing order the commissioners to copies including of all witness statements —

affidavits, interviews, depositions —and documentary physical all evidence col- Heckler, 6. See under of materials not Grunfeder (9th Cir.1984) (en banc) ("Absent expression foreign discoverable under law could lead "some congressional contrary, of ations of intent to the cоnsider- nations to conclude that United States courts courtesy mutuality require ‍​‌‌​​​​‌​‌​‌​​‌​‌‌‌​​​‌‌‌​‌‌​‌​​‌‌‌‌‌‌‌‌​​​‌​​‌‌‍our contempt.”) procedures view their laws and legislation way courts to construe domestic * panel unanimously purpose that minimizes interference with or finds this case suitable law.”) foreign effect of argument. Fed.R.App.P. decision without oral 34(a); 9th Cir.R. 34-4. Medica, S.A., Application In re Asta Cf. (1st 1992) (allowing discovery Centro, California, Beaudikofer, El

Eric petitioner. Immigration Hussey, Office Thomas W. Department of Jus- Litigation, United States D.C., tice, respondent. Washington, for the PREGERSON, FLETCHER, Before RYMER, Judges. Circuit FLETCHER, Judge: alien, Petitioner, appeals deportable a a Immigration Appeals decision of the Board (“BIA”), ineligible finding statutorily him pro- discretionary waiver 1182(c) (“section for in 8 U.S.C. vided 212(e)”). during held that time petitioner as a minor which lived child resident his attain- independently to himself residency, did not count to- years of “lawful unrelin- ward the seven eligi- him required to mаke relief under section ble 212(c). jurisdiction to review orders of

We have 1105a(a). deportation pursuant to 8 U.S.C. whether, requires us to decide This case 212(c), parent’s unre- under section a lawful linquished domicile is to his or her minor We hold that it is. children.

FACTS Benjamin Lepe-Guitron native states that his citizen Mexico. He Septem- immigrated to the United States on successfully applied to im- ber sister, migrate Lepe-Guitron, his and one of par- states his his brothers. He further resident ents and sister thereafter, but that status two within to a error processing due attributable and Naturalization Service (“INS”) until did not attain that status other, younger voluntarily abroad and not under an order 1986. He has five October deportation, returning and who are citi- siblings, are United States all of whom lawful domicile of lived, to have attended He claims zens. years, may consecutive admitted school, since and worked Attornеy discretion of the General without arrival in 1976.1 (1) regard provisions paragraphs to the 1, 1989, Lepe-Guitron pled September On (31) (25), (30), of this section.3 Superi- guilty and was convicted California 1182(c). Although 8 U.S.C. this section sale, marijuana possession of for or Court of applies by pro its terms to exclusion days county jail. was sentenced to 120 (a) 1182, ceedings judi under subsection 5, 1989, December the INS instituted On cial decisions have extended its reach to de deportation proceedings pursuant to 8 U.S.C. INS, portation proceedings. Butros v. 1251(a)(11) (1988).2 13, 1990, On June (9th 1142, 1143 Cir.1993); Tapia-Acuna (“IJ”) Immigration Judge Lepe-Gui- found INS, (9th Cir.1981).4 223, v. 640 F.2d deportable, ineligi tron and held that he was Thus, deportable permanent aliens who are 212(c) he ble for section relief because had residents and who have accrued seven permanent not been a resident —and thus of “lawful domicile” in the not had an lawful domi discretionary United States are for a years. cile—for the The IJ deportation. provision waiver of was deported ordered him to Mexico. enacted to alleviate the harsh effects of de BIA, Lepe-Guitron appealed argu- portation lawfully on those aliens who have time, ing that because he was a child at the substantial ties to the United established seven-year period his of “lawful unrelin- Anwo, States. Matter 16 & N Dec. 293 quished begin on thе date domicile” should (BIA 1977). permanent his resident sta- interpreted phrase “lawful unrelin- We (in 1976), tus rather than on the date he Castillo-Felix independently himself attained such status. (9th Cir.1979). There, petition- 601 F.2d 459 July rejected argu- On the BIA this 1963, country illegally er entered the was ment, holding deported illegally, re-entered mar- unrelinquished domicile” must be counted ried a resident in and was per- from the date he himself first attained granted permanent resident status in 1972. manent resident status. knowingly In 1975 he was convicted of induc- illegal entry of two aliens into the DISCUSSION began deporta- United and the INS proceedings against tion him. He conceded I. 212(c) deportability, but asked for section part Enacted in 1952 as of a wide- and the BIA both found that relief. IJ ranging revision of the and Na ineligible period relief because 212(c) (“INA”), tionality provides: Act begin of lawful domicile did not until Aliens admitted ‍​‌‌​​​​‌​‌​‌​​‌​‌‌‌​​​‌‌‌​‌‌​‌​​‌‌‌‌‌‌‌‌​​​‌​​‌‌‍for when he attained resident status. court, temрorarily proceeded appealed arguing to this that the residence who He 1) 1251(a)(1 proof 2. Under conviction of a vari 1.These claims were made as an offer of Section offenses, including possession ety drug-related immigration judge. before the The record con- marijuana grounds deportation. to evaluate tains insufficient evidence Therefore, them. appeal in this we consider—as did the parаgraphs 3. The cited constitute the various Lepe-Guitron BIA—whether would be grounds seeking entry the exclusion of aliens waiver of if his into the United States. allegations factual are true. was first reached in the Sec- This conclusion Lepe-Guitron put We note that has into the ond Circuit. See Francis v. 532 F.2d 268 friends, employers, record 12 declarations from (2nd Cir.1976) (equal protection clause of United principal. and a school Also in the reсord is his 212(c) requires States Constitution that section school, diploma from a California middle dated alien has not "tem- relief be available where June abroad"). porarily proceeded residence to that date and “lawful unrelin- ents’ residence” “permanent 212(c) him, a minor portions of section should be as he was quished domicile” claim, elements, rejected The BIA and that therefore at the time. were distinct interpreting section instead lawfully for have lived here aliens years of children to themselves accrue seven consecutive can obtain more seven or formally being ac residence after 1182(c) relief, regardless they that status. review the BIA’s corded residence. were admitted for interpretation of section de novo. added). 601 F.2d at (9th 971 F.2d Abedini v. rejected petition- The Castillo-Felix Ilchert, 1992); Wong see also holding, argument, er’s Butros, Cir.1993); 663 n. 3 990 F.2d at 1182(c) relief, aliens to be years seven of lawful must accumulate presented Castillo-Felix facts substantial- their admis- unrelinquished domicile after ly different from situation. permanent residence. sion for country illegally, Castillo-Felix entered the added). Id. at 467 married, only subsequent marriage to his opinion was an exercise in court’s The acquire did he resident status. interpretation of to the INS’s its deference Castillo-Felix, Here, 601 F.2d at 461. statute, INA. The court first noted the own hand, child, Lepe-Guitron, legally the other a 212(c) ambiguous as to that was section parents, the with his entered United States could establish “lawful dom- whether an alien always country, legally was within the was having “permanent resident” icile” without here, acquired domiciled resi- status, legislative history that the was status, minor, many years dent still as a after clarifying helpful in the matter. Id. at not achieved it. that The court noted since 1953 the 464-65.5 consistently intеrpreted section BIA had was mistaken in automati 212(c) cally of applying to the rule in Castillo-Felix— S., residence, see Matter 5 & N Dec. 116 that lawful domicile accrues from the date an of (BIA 1953),6 interpretation this acquires permanent and held that alien him- or res herself only idency set aside the face of a Lepe-Guitron considering should be without —to showing contrary by “clear of intent Con- the crucial differences between thе two (quoting gress.” Id. at 465 Baur v. Math- persuasive cases. There are a number of Cir.1978)). ews, 233 Find- 578 reasons to hold that a child’s “lawful unrelin 212(c) interpretation clearly BIA’s not con- the domicile”under section is that trary Congress’ enacting intent the of his or her Act, Nationality Immigration the court position espoused by government at 466-67. affirmed. Id. policies would subvert the fundamental ani 212(c). mating section What could be more II. frustrating “just to the section’s and hu Lepе-Guitron goal providing admits he was not mane” of relief to those for granted permanent deportation residence in peculiar his own whom “would result in (only hardship,” S.Rep. name until 1986 three before his or unusual No. 63d deportation hearing), par (1914),7 Cong., but claims that his 2d than Sess. Comment, mistakenly equated 5. See “Lawful Domicile Under Sec- "lawful admission" with 212(c) residence;” Nationality tion of "lawful admission for Act,” (1980) ("the spe- suggesting holding phrase 47 U.Chi.L.Rev. that based on latter is 212(c), dictum) S., history legislative though (quoting cific of section Matter 5 I & N Dec. at 118-19). containing support interpreta- shreds for both tions, inconclusive”). essentially is provi- 7.Section is a revision of an earlier Comment, sion, proviso," pro- But see U.Chi.L.Rev. at 788-89 the so-called "seventh which (arguing deportation, that BIA in Matter S. meant vided for a waiver of Labor, deny by returning Secretary section relief to those for aliens "unrelinquished and that it еntered United States domicile of 30, 48, 109 1597, 1608, 104 parents and U.S. S.Ct. L.Ed.2d severed the bonds between (1989) (“Since legally in incapable had resided most minors children who are their part of their forming for the better intent to establish a 212(e) enacted to by lives? Section their domicile is determined deportation for those who have relief from parents”). of their The force of this rule is “ strong to the United lawfully formed ties highlighted by corollary occa ‘[o]n Cong., 2d S.Rеp. No. 81st sion, States. See origin a child’s domicil of will be ” (1950). naturally Because children Sess. 383 place the child has where never been.’ strongest place ties to the where form the (Second) (quoting Restatement Conflict of they domiciled and b). Laws Comment 212(c)’s them, policy section core concerns Thus, while we have held it reasonable for directly by govern frustrated would interpret the INS to an adult’s “lawful unre- proposal ignore parent’s domi ment’s linquished begin day domicile” to on the determining that of the child. cile residence, acquires permanent or she Castil- by strengthened a closer This conclusion lo-Felix, at both the common statutory Congress’ chosen examination of policies law definition of domicile and the term, interpreting “domi “domicile.”8 212(c) preclude section 212(c), appears in we have cile” as it applied to children. nowhеre de previously noted that the INA giving high Other sections of the INA term, “incorporates concept fines the but ” priority ‍​‌‌​​​​‌​‌​‌​​‌​‌‌‌​​​‌‌‌​‌‌​‌​​‌‌‌‌‌‌‌‌​​​‌​​‌‌‍to the relation between in of ‘familiar other areas law.’ Castillo- parents resident and their children lend Felix, (quoting 601 F.2d at 464 n. 11 2 Gor strength analysis. our Sections 1152 and Rosenfield, Immigration & Law and don quota im which allocate the annual (1979)). Procedure, § 7.4b at 7-32 We visas, migrant preference for the adopted a definition of domicile consonant alien and children United States residents meaning: with its common law that “aliens 1153(a)(1) 1152(a)(4), §§ citizens. 8 & U.S.C. here, physically present but must not (2). considering applications perma 464; at must intend to remain.” Id. accord status, residing nent resident a child outside INS, Melian v. 987 F.2d 1524 given priority the United States is the same Cir.1993) (“ ‘lawful domicile’ under section category preference date and as that of his at least the simultaneous exis means 245.1(d)(vi)(B)(1). parents. or her 8 C.F.R. physical presence in tence of lawful the Unit provides Act a waiver of excludabil The in ed States and lawful intent to remain ity immigrants helped certain have indefinitely”); Anwo v. their alien children enter the United States (D.C.Cir.1979) (per 437 cu 607 1182(a)(6)(E)(ii) illegally. (family 8 U.S.C. riam). waiver). Conversely, reunification impelled Under this definition we are parent his or has held that when a abandons at common the conclusion—unremarkable status, chil her resident minor follоws that of his law—that a child’s domicile parent dren of the also lose resi (Second) or her See Restatement Zamora, I N dent status. Matter 17 & 14(2) (1969); 25 Am. Laws Jur. Conflict of 1980). (BIA Dec. 395 (1966). 2d, Domicil 69 This is because are, analysis in speaking, incapable Finally, support find for our legally children necessary Appeals case to consid forming the intent to remain indef the one Court of have now: Rosario v. initely particular place. Mississippi erеd the issue before us Cir.1992).9 (2d Holyfield, 962 F.2d 220 Rosario Band Choctaw Indians rejected years.” Circuit has Feb. 9. We note that the Second seven consecutive Act of 1952). (repealed analysis ch. Stat. 878 in and held that an our Gastillo-Felix begin accruing can “lawful alien attaining permanent resident domicile” replacing provi- We note that in the "seventh Cir.1977). (2nd adding status. Lok v. so” with section and Rosario, however, rely analysis does not requirement, Congress nеnt residence did not law definition but rather on the common remove the term "domicile.” was, claimed, years old his whether his mother as domi- twelve he was claimed February, ciled in the United States as of United established mother February, court remanded for that deter- and he arrived 1983.11 The States permanent mination. Id. at 225. and attained in the United States later, months in Decem ten resident status III. selling ber, pled guilty 1989 to 1983.10 He possession of sto substancе a controlled 212(e), The BIA’s of section deportation hearing in At his property. len which would children to themselves deportable he was found September, 1990 obtain resident status before 212(c) relief, arguing requested accrue, ignores their lawful domicile could passed had not although seven the common law and common sense defini- country entered the or himself had since he “domicile,” and tions of subverts section residenсe, granted permanent been 212(c)’s policy. core therefore hold that passed since his mother had estab parents’ in the United lished her domicile imputed minor should be to their children him, should be that her domicile 212(c).12 Lepe- under section Persons like minor at the time. as he was a (who Guitron arrived with his resident status agreed. The court Second (who they) own name than and Rosario later on an extended discussion of first embarked bоth arrived and attained resi- the common law definition Ro mother) dent status his own name after his sario, (citing Holyfield); at 223-24 would therefore be (similar Melian, F.2d at 1524 see also if, relief at the time their domicile; citing Holyfield), also discussion of hearing, had been held, we, that as do domiciled in the United States for at least A is the same as that of Ininor’s domicile years. pre- parents, its since most children are case, Rosario’s, legally caрable forming as sumed not par- the record does not show whether his requisite intent to establish their own dom- years ents have accrued seven of lawful unre- icile. linquished domicile. remand for such Rosario, (citing Holyfield). 962 F.2d at determination with if instructions basis, On this the court concluded that Ro- are found to have the lawful might sario have been domiciled the Unit- domicile, unrelinquished he should be consid- during ed the ten months when his States 212(e) eligible ered for seсtion relief. allegedly mother was domiciled here but he GRANTED, Republic. Lepe-Guitron’s petition still lived in the Dominican having issue of law been resolved in Rosar- the matter is REMANDED with ‍​‌‌​​​​‌​‌​‌​​‌​‌‌‌​​​‌‌‌​‌‌​‌​​‌‌‌‌‌‌‌‌​​​‌​​‌‌‍instruc- favor, question io’s a factual remained as to tions. holding applies only of a child’s 212(c)’s and on the fact that section 12.This if the child obtains permanent prior reaching policy uniquely implicated resident status ma- concerns jority, only because statute affords relief in the case of children. residents, only permanent but also for two First, parents’ additional reasons. domicile recognized 10. The that Rosario's claims person should not be to a who does not had BIA, established or not been refuted before the immigrate to the United States until he or she is purposes treated them as true for the adult, person necessarily since such a would appeal. ultimately granted When the court intervening period have an of lawful domicile in petition, necessary it remanded for the factu- Second, country origin. if an alien child Rosario, findings. al 962 F.2d at 225. joined has his or her in the United States prior reaching majority, but has not secured inquiry go

11. The did not to whether Rosario's time, permanent residency by that there will nec- permanent mother was a resident of the United essarily "gap” person's be a in that lawful domi- date, Circuit, cile, it would (be- States as of that as in this rendering longer “unrelinquished” it no adults, Circuit, because Second an alien Circuit can estab- cause for in this “lawful unrelin- acquiring lish lawful domicile domicile” can be accrued as a resident). residency. nent 548 F.2d at 40-41. RYMER, years Judge, dissenting: as a lawful resident to be eligible for relief. majority’s ap result felicitous the However children, we have pears to be the case reading The BIA’s consistent long-standing ratified the BIA’s previously “lаwful,” Congress has tied the word as used re policy [§ ] that “to be for “domicile,” qualify requirement it to lief, accumulate seven aliens must “lawfully that the alien be for per- admitted unrelinquished domicile after their ad lawful approves manent residence.” Castillo-Felix Castillo- mission for residence.” interpretation, the BIA’s and there is no Felix reason to undo that rule in this case. 1979). that, undisputed at the time of It is therefore dissent. IJ, Lepe-Guitron hearing before the accumulated less than four after admission [his] Id. This should residence.” deny peti the matter and we should

end

tion for review.

Instead, majority accepts the reason- (2d

ing of Rosario v. Cir.1992), “lawfully which took the view America, UNITED STATES of residence” and “law- admitted Plaintiff-Appellee, ful domicile of seven consecu- 212(c), separate years,” as “are tive used conditions, independent neither [of WILSON, Defendant-Appellant. Dennis L. purports qualify to limit or the other.” which] statute, reading Id. at 223. On this of the No. 91-10308. long held “that the Second Circuit has Con- Appeals, Court of gress planned resident alien 212(c) relief, provided Ninth Circuit. to be person can the domicile condition.” meet Argued and Submitted Nov. added) (citing Lok v. (2d Cir.1977)). 37, 41 Feb. Decided Castillo-Felix, however, parted com- in- pany statutory with the Second Circuit’s

terpretation, expressly rejecting Lok’s con- Congress

clusion that did not intend the sev-

en of lawful domicile to follow admis-

sion for residence. 601 F.2d at ‍​‌‌​​​​‌​‌​‌​​‌​‌‌‌​​​‌‌‌​‌‌​‌​​‌‌‌‌‌‌‌‌​​​‌​​‌‌‍Hence, assuming Lepe-Guitron

467.1 lived, “domiciled” where his un- Castillo-Felix, meeting simply

der the domi- must, enough;

cile condition is not the alien addition, thеreafter accumulate seven view, Contrary majority's maj. op. puting her or his at n. to a minor the domicile of -just rely majority Rosario does as the at 223-25. Rosario's conclusion— Lok— today. implicitly relies on that case Rosario might the minor be began its discussion with a restatement of parents’ unrelinquished domi- relief based on his "lawfully perma- the Lok rule—-that admitted for dependent on cile in the United States—was nent residence” and rеspect to since the court's exclusive focus with years” of seven consecutive are inde- seven-year alien's time frame was on the pendent Congress planned and "that conditions than his admission for "domicile” rather resident alien to be Castillo-Felix, contrast, ac- nent residence. 212(c) relief, provided person can meet cepts that the two re- the BIA's the domicile condition.” 962 F.2d at 223. The quirements together. must considered proceeded court then with its of im- discussion

Case Details

Case Name: Benjamin Lepe-Guitron v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 15, 1994

Citation: 16 F.3d 1021

Docket Number: 92-70505

Court Abbreviation: 9th Cir.