Julio Garcia Rivera v. Immigration and Naturalization Service
810 F.2d 540
5th Cir.
1987
Check Treatment

*1 540 Jacobsen, are Para Inmi- (1940). We Michael J. Centro Co., 109 F.2d 375

and O.R. Houston, Schechter, Tex., grantes, Cheryl rule. not, however, must and Gamble Houston, Tex., petitioner-appellant. Lambert, INS, Director David H. Dist. O’Neill, Orleans, La., B. Dist. New Paul Goldman, INS, Houston, Gary Director T. Tex., parties. for other interested Director, Bombough, L. Office of Robert Div., Litigation, Immigration Richard Civ. D.C., Evans, Washington, respon- M. RIVERA, Garcia Julio dents-appellees. Petitioner-Appellant, v. AND NATURALIZA-

IMMIGRATION SERVICE, TION Respondents-Appellees. CLARK, Judge, Before Chief DAVIS, Judges. Circuit WILLIAMS

No. 85-4100. Appeals, Court of States United ON PETITION FOR REHEARING Fifth Circuit. 23, Feb. DAVIS, Judge:

W. EUGENE Circuit Upon reconsideration and reasons follow, persuaded we Immigration interpretation Board’s unreasonable; and Naturalization Act is “great must given the deference” we ac- Appeals’ Immigration the Board of cord Act, (BIA) interpretation accept we of that affirm its order. See interpretation 16, Tallman, 1, 380 U.S. S.Ct. Udall 801, (1965). 792, 13 L.Ed.2d 616 defined original opinion, we In our Williams, Judge, dis- presented for decision this Jerre S. issue narrow perma- opinion. and filed Garcia was a sented case: Whether country August nent sought relief. when Rivera v. F.2d Cir.1986). question de- The answer to when, following immigra- pends deported, Rivera be judge's order that changed so that was no Rivera’s United longer a lawful resident States. upon In relied Re BIA in this case possible four where considered process when law-

steps (1) when the might terminate: ful residence *2 judge depor- immigration Rivera’s erred, ordered that the Board as a matter of fact tation; (2) deportation when the order was law, respect or with to deportability the by affirmed BIA or otherwise became finding, reversal of the Board’s order final; (3) administratively BIA when the nullifies the order and restores by appeals when affirmed court of or permanent alien’s lawful resident status. the BIA ex- time for of order (citations omitted). Id. at 107 (4) upon pires; deporta- execution of the or opinion, The Lok which the Board fol- tion order. In Re 18 I. & N. Dec. in lowed the instant reflects careful (BIA 1981). consideration of problem the solution to the carefully The Board considered all of of when country lawful residence in this possible these answers. Because of should We nothing terminate. find unrea- obligation of the BIA to amake sonable about BIA’s rationale or its immigation judge’s de novo review of the conclusion. law, findings fact of and conclusions of it Moreover, nothing we see unfair concluded the alien’s lawful status about terminating upon depor- should terminate lawful resident not initial status after an by tation order. Id. at 106. adverse decision found initial factfinder however, incongruous, that an alien under and an affirmance the BIA following de administratively deportation an final order Acceptance novo review. appellant’s po- of could continue to maintain lawful resident sition that he retain should lawful resident status. The Board concluded Id. through judicial appeal would alien should be considered a lawful more already create work an beleag- ap- resident of the United States while he Board. Requiring uered alien assert pealed the adverse administrative determi- his claim for relief from de- nation appeals. to the court of The Board portation deportation while his order is on reasoned that: permits to the Board the Board to adjudicate deport- an Authority together; consider both claims turn ability primarily Attorney is vested in the prevents stringing the alien from out his immigra- his delegates, General and delaying disposition claims ultimate Board____ judge and the In con- of his case. pow- trast to the Board’s de novo review Upon persuaded reconsideration we are ers, scope appellate court’s of review terminating lawful status when the Assuming is limited. no error or of law deportation administratively order becomes in procedure, unfairness the court must not prejudice Contrary final will the alien. depor- affirm the order administrative of our opinion, to the assertion in initial supported tation if order is rea- applicable regulations require do not an substantial, sonable, probative evi- deportability alien to admit as a condition dence of record. 212(c) applying for section relief: “An To hold an alien under a final application only during be made ... shall administrative order [deportation] hearing and shall not be permanent mains lawful resident alienage held concession to constitute a throughout judicial proceedings or case in which the encourage spurious appeals would alienage does not admit his or de- [alien] courts, solely purpose made for the 242.17(e) (1986). portability.” 8 C.F.R. § accumulating more time eligibili- toward Also, 212(c) we are now convinced that no ty for section relief. The termi- for the “Catch-22” created alien permanent nation of sta- adopted rule and in case. The upon entry tus final of a administra- apply deportation, tive order of allow the the other hand, all fully would result in no relief and reserve preju- ultimate arguments relatively dice to the alien. In those rare that he is not proceed- Litigants instances where the court in both and civil determines criminal required directly Flies face well frequently ings country are in this only authority reasoned circuit in a and defenses claims join alternative holdings. controlling made has routinely jurors lay single proceeding wholly rely Permits suggest- No reason such claims. decide own which is demon- one of its decisions or the immigration judge why ed *3 not the law. strably alien’s alternate fairly consider an cannot an Upholds administrative decision 212(c) relief. for section claim jurispruden- that the established defies to sum, the BIA as of In the conclusion rights rehearing principles of the to tial ter- resident status alien’s lawful when the of decisions. appeals and administrative It gives one. is a sensible minates a resident alien to 4. Forces lawful his for ample to assert claim time mercy deportable plead for as before 212(c) from prevents and him section relief is in piecemeal his claims a litigating various will be Each of these conclusions dis- have appellant The would fashion. rule First, appellant Rivera cussed in turn. was to until adopt encourages an alien wait us May administratively adjudicated on deportation to appeals order after subject deportation order as to after Immigration filing peti- Ap- his the Board of appeals of before review court appeal peals of the INS. His on merits 212(c) would tion for section relief. This January this was dismissed Court require immigration judge and the meantime, however, Rivera 1985. In the case rule on again review applied discretionary for relief from had 212(c) relief. Such the claim 212(c) deportation Immigra- under of the § string the alien to out rule would allow 1952, 8 Nationality Act of U.S.C. tion and claims, unnecessarily Board’s increase the 1182(c). statutory provision That re- § delay disposi- work load the ultimate permanent quires eligibility lawful and of case. unrelin- resident status and also lawful reconsideration, quished of seven consecutive we conclude that domicile Upon year met the years. Rivera had seven is rea- interpretation the BIA's of Act quirement. its To extent and affirm order. sonable INS, opinion is in with the previous our conflict 722 The Ninth Circuit Wall v. Cir.1984), (9th 1442 held that time above, F.2d it is vacated. year requirement of satisfy the seven AFFIRMED. unrelinquished domicile could con- lawful a final decision of tinue to accumulate after WILLIAMS, Judge, directing deportation. the BIA While the JERRE S. year conceded in seven lawful domicile is dissenting: case, directly point on is the Wall case The reversal of the decision it is obvious that the statute does because Cir.1986), (5th upon rehear- 791 F.2d 1202 contemplate an alien can maintain that passive ing remarkably ac- constitutes a continuing purposes of domicile gov- ceptance oppressive whim a of year residence re- to accumulate seven bureau, Immigration and ernmental deportation case is be- quirement while the The decision now Naturalization Service. BIA, ing appealed from but at same panel is to majority rendered appeal- not be time would a lawful wrong, inescapably me and the reasons the seven ing once order is years achieved.1 quite clear. The decision: (11th Cir.1984). agency, F.2d 350 Marti-Xiques F.2d within the 741 In 1511 Cir.1983), holding panel’s was same as for the This was too much even en banc in Wall. The Court took the case ignores own the decision in its reversed, standing holding alien lost that an court so No has decisions. other administrative show lawful at the INS issues the as the time held. order, any hearing before or cause even Second, Further, to a the Court defers reliance the INS magnanimously states upon decision in the INS its Matter if it appeal by reversed on the Court (BIA 1981). N, quite & It is 18 I Dec. prior then decision which it relying holds that the true decision upon as longer final would no be final. deportability order of the bars the The gives statute right alien the remedy based § appeal the decision of the BIA to the Court though even the issue of Appeals. quite It is true that it is not a pending appeal in still on the courts. The full de novo review. But it is quite also upon the trouble with reliance Lok case is true, know, as we well that administrative appealed it is not the law. case was decisions are regularity with some reversed Appeals. the Court of While it af- was to the courts. It is at least of firmed, (2d Cir.1982), 681 F.2d 107 was validity doubtful change treat a sta- very ground affirmed on narrow accompli tus as fait while pur- the alien is *4 deportable had Lok become after the deci- suing right that sion the BIA because he did not a enter change of judicial status the body first timely appeal that adjudication of de- to consider it. Thus, portability Court. to the the decision Finally, we are told that Rivera the and in the Lok case as it in is stands the law similarly situated alien not prejudiced is compatible completely position with the because the encourages the filing of in urged ap- this dissent since Rivera had discretionary relief under the before pealed the BIA decision. Lok had waived agency makes its to deportabili- decision as challenge deportability, further the and ty. The claim is that this not trap is a Appeals in Court relied that fact unwary. simple answer is that at affirming BIA.2 the decision of the Rivera least it was in this case. Rivera was challenge. had not further waived asking barred from for discretionary relief Third, holding of the INS coun- although the record indicates he has at opinion by majority juris- tenanced is reasonably a good least case for the claim. prudentially in respects. flawed two serious He was barred because did he not claim place right In request the first there is a discretionary deportable relief as a alien BIA, rehearing right a a before adjudicated deportable before was a under the had not been termi- by trapped He part, INS. was in Yet, in BIA nated this case. denied a least, at he already because had his lawful rehearing ground on the that Rivera no status, year domiciliary seven and most longer had the ask it because litigants yet in these cases do not have the adjudicated deportable he had been and year seven domicilewhen BIA declares longer was no a lawful is resident. This deportable. them precisely petition as if court on a hearing finality necessarily To claim that not denied it on the merits but given longer to the BIA decision ground petitioner because of no petition delays by appeals, occasioned right rehearing had the for a we should point great out peril had that no jurisdictionally because he lost national original demonstrable decision court. Lawbooks from fact that this Court any justifica- disposed just will be searched vain for of Rivera’s about decision, tion for this remarkable conclusion. seven months after the BIA toas Kam, (3rd Dabone v. 763 F.2d Cir. Circuit’s ond decision if the alien 1985), adopts the cut off date the date as after conceded decision decision, position taken final longer discretionary no could ask for relief. In panel majority. But that is an exclusion holding properly distinguished the Court so entry case. "The new stands holding Wall residence continues footing alien on as if it the same were being the BIA decision if that decision is after entry.” initial appealed. In Avila-Murrieta 762 F.2d 733 1985), agreed with Cir. the Ninth Circuit the Sec- a lawful resident had been alien who years. It is domiciliary for over seven again appeal is a stress well to also possess- that this right and Court

matter of summary procedures to

es sanctions appeals. frivolous

deal with majesty law dignity and

How the mistreating who this alien vindicated permanent resident is

had a lawful been comprehension. He cer-

beyond my was

tainly to be considered for discre- entitled that was

tionary relief and all he asked. tyrant gives petty a warm

Perhaps it

glow right simply to cut off the provided relief

ask for appealing he is a decision

Congress while gives It the cold

that he is me There are no words in statute

shivers. result, call for this

anywhere that

panel cites none. It opinion is a source that we do regret to me not insist that

keen Congress’ respect Merritt, obvious wishes the INS Judge, dissented lawfully are that aliens who the United opinion. filed respect, and, having treated with States be

met lawful residence and requirement, be entitled to ask for

domicile they relief at time before finally adjudicated I dis- otherwise.

sent. America, STATES of

UNITED

Plaintiff-Appellee, CALLANAN, Jr.; Callanan,

Evan Evan

Sr., Defendants-Appellants.

No. 86-1140. Appeals, Court of

United States

Sixth Circuit.

Argued Nov.

Decided Jan. Southfield, Mich., Smith,

Nicholas Thom- (argued) defendants-appel- as Wilhelm lants.