PONCE DE LEON
FOR RESPONDENT: Robert Dildine, Esquire, Minneapolis, Minnesota
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Terry M. Louie, General Attorney
BEFORE THE BOARD
(January 3, 1996)
BEFORE: Board En Banc: DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ, COLE, and MATHON, Board Members. Concurring Opinions: SCHMIDT, Chairman; FILPPU, Board Member, joined by VACCA, Board Member. Dissenting Opinions: ROSENBERG, Board Member; VILLAGELIU, Board Member, joined by GUENDELSBERGER, Board Member.
HEILMAN, Board Member:
In a decision dated October 11, 1994, an Immigration Judge found the respondent deportable under sections 241(a)(2)(B)(i) and (a)(2)(A)(iii) of the Immigration and Nationality Act,
I. ISSUE
The central issue is whether the respondent can properly count his lawful temporary resident status towards the 7-year lawful domicile requirement for eligibility for a waiver under section 212(c) of the Act.
II. FACTS
The respondent is a 29-year-old native and citizen of Mexico. He was granted temporary resident status effective on April 27, 1988, and subsequently adjusted his status under that provision to that of a lawful permanent resident on September 6, 1991.1
On August 26, 1993, the respondent was convicted of three counts of the sale of marihuana in the Ramsey County District Court, St. Paul, Minnesota, and was sentenced to a suspended sentence of 1 year and 1 day, 100 days of community service, and a fine of $387. The Immigration and Naturalization Service subsequently served the respondent with an Order to Show Cause and Notice of Hearing (Form I-221) on December 15, 1993, charging him with deportability under section 241(a)(2)(B)(i) of the Act, as an alien convicted of a violation of a law relating to a controlled substance, and section 241(a)(2)(A)(iii), as an alien convicted of an aggravated felony. On October 11, 1994, after a hearing, the Immigration Judge found the respondent deportable as charged. The Immigration Judge also found the respondent ineligible for section 212(c) relief, because he lacked 7 years of lawful unrelinquished domicile.
The respondent timely filed his appeal before this Board on October 18, 1994. He does not dispute the finding of deportability under section 241(a)(2)(B)(i) of the Act, but argues that the Immigration Judge improperly classified his conviction as an aggravated felony, and thus that he is not deportable under section 241(a)(2)(A)(iii) of the Act. He also challenges the
III. DEPORTABILITY FOR AGGRAVATED
FELONY CONVICTION
The respondent argues that his conviction for the sale of marihuana is not an aggravatеd felony because under Minnesota law, such convictions are not treated harshly. As an example, he argues that Minnesota law provides for reduction of his conviction to the status of a misdemeanor upon successful completion of his probation.
We conclude that the respondent’s arguments in this regard are without merit, and that the Immigration Judge properly found that the respondent’s conviction constitutes an aggravated felony. The Act defines an “aggravated felony” to include “any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 921 of title 18, United States Code)” and states that “[s]uch term applies to offenses described in the previous sentence whether in violation of Federal or State law.” Section 101(a)(43) of the Act,
In response to the respondent’s argument that his conviction might be reduced to a misdemeanor upon the successful completion of his probation, we note that, for deportation purposes, the respondent is subject to a final felony conviction. It is well established that a conviction attains a sufficient
Further, even if the respondent’s conviction were reclassified as a misdemeanor, a misdemeanor conviction under state law may still be an aggravated felony for purposes of section 101(a)(43) of the Act. Even where an offense is not designated as a felony, it may nonetheless be a “drug trafficking crime” (and therefore “illicit trafficking” and an “aggravated felony”) if it is analogous to an offense punishable under one of the federal acts specified in
IV. ELIGIBILITY FOR SECTION 212(c) WAIVER
A waiver of inadmissibility under section 212(c) of the Act is generally available to aliens who have been lawfully admitted for permanent residence, who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of 7 consecutive years in the United States. This form of relief is also available to lawful permanent residents who have not departed the United States and who are in deportation proceedings. Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA l976); see also Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981). Thus, eligibility under section 212(c) of the Act requires that an alien (1) be lawfully admitted for permanent residence, and (2) have 7 consecutive years of lawful unrelinquished domicile.
The respondent became a lawful permanent resident on September 6, 1991, and thus satisfies the first requirement. Only the second requirement,
The Board has held that the acquisition of lawful domicile for purposes of eligibility under section 212(c) of the Act must be subsequent to the date of admission as a lawful permanent resident. Matter of Anwo, 16 I&N Dec. 293 (BIA 1977), aff’d on other grounds, 607 F.2d 435 (D.C. Cir. 1979); Matter of S-, 5 I&N Dec. 116 (BIA 1953). In 1991, the Attorney General promulgated
(f) Limitations on discretion to grant an application under section 212(c) of the Act. A district director or Immigration Judge shall deny any application for advance permission to enter under section 212(c) of the Act if:
(2) The alien has not maintained lawful permanent resident status in the United States for at least seven consecutive years immediately preceding the filing of the application;
This provision appeared in the revisions to 8 C.F.R. § 212 published on October 3, 1991, in the form of an interim rule with request for comments. 56 Fed. Reg. 50,033-34 (1991). The Summary to this rulemaking states that the rule “amends 8 CFR part 212 to implement sections 511 and 545 of the Immigration Act of 1990, Public Law No. 101-649, 104 Stat. 4978, 5052, 5061 (1990) (IMMACT).” The Supplementary Information discusses such subjects as eligibility restrictions on certain aggravated felons and the definition of the term “admissions,” but offers no specifiс information on
The Board is bound to uphold agency regulations. The Board and Immigration Judges (except as to the specific authority provided by statute) only have such authority as is created and delegated by the Attorney General. See section 103 of the Act,
The respondent points to Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994), in support of his position. In that case, however, the court never reached the issue of whether temporary residence could be counted towards the 7 years of lawful domicile. Instead, it found that, even if temporary residence were included, the respondent would not have satisfied the 7-year requirement at the time of his deportation hearing, and thus the Board did not abuse its discretion when it dismissed the respondent’s argument on this issue on appeal. Id. at 356 (remanding, inter alia, for consideration of whether the respondent’s lawful permanent residence during the pendency of his appeal rendered him еligible for section 212(c) relief). The Eighth Circuit has not taken a position on this issue. We are bound by the regulation.
To be eligible for a section 212(c) waiver, an alien must have maintained lawful permanent resident status in the United States for at least 7 consecutive years.
ORDER: The appeal is dismissed.
FURTHER ORDER: This decision is referred to the Attorney General for her review pursuant to
I concur in Parts I, II, and III of the majority opinion. I reluctantly concur in Part IV of the majority opinion which concludes that we are bound to follow
My reluctance is based on (1) my opinion that
I write separately because I believe that the general rule that we must continue to follow a regulation that conflicts with rulings by the courts of appeals in other jurisdictions is outmoded. In my view, it prevents us from fulfilling our role as delegates of the Attorney General on important case-related issues arising under the immigration laws. Therefore, it would be helpful if the Attorney General were to address both the substantive issue involved and the question of the proper procedure for the Board to follow should future situations of this type arise.
I. THE REGULATION IN QUESTION IS NOT A REALISTIC INTERPRETATION IN LIGHT OF CURRENT CASE LAW DEVELOPMENTS
Whatever might be the merits of the Board’s ruling in Matter of S-, 5 I&N Dec. 116 (BIA 1953), the better view of the law is contained in the recent rulings of the Seventh Circuit in Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995), and Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995), and the Ninth Circuit in Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995). Those courts have found that an alien who was admitted to the United States as a lawful temporary resident may count that time toward the lawful unrelinquished domicile required for relief under section 212(c) of the Act. I will refer to this rule as the “Castellon/Robles rule.”
For whatever reason, the Immigration and Naturalization Service (“INS”) did not argue
In fact, there is no conflict among the circuits on this question. The Second Circuit has long disagreed with the Board’s Matter of S- interpretation. See Lok v. INS, 548 F.2d 37 (2d Cir. 1977). Additionally, the Eleventh Circuit has stated in dictum that it will adopt an interpretation like the Castellon/Robles rule. Melian v. INS, 987 F.2d 1521, 1525 n.6 (11th Cir. 1993).
As recently pointed out by the Fifth Circuit in Hussein v. INS, 61 F.3d 377, 380 (5th Cir. 1995), “no circuit has upheld the BIA’s view that an alien who attains LPR through IRCA’s amnesty provisions does not become lawfully domiciled until he attains LPR status.” Although not reaching the issue in Hussein, the Fifth Circuit left little doubt that it finds unpersuasive the Board’s current interpretation, as embodied in
II. THE PRACTICAL EFFECTS OF OUR DECISION ARE UNFORTUNATE
Unfortunately, our decision today provides little in the way of helpful, practical guidance to either the Immigration Judges or the public as to the state of the law concerning section 212(c) eligibility. Nevertheless, we must make clear the real consequences of our continuing to follow
First, we will dismiss a number of currently pending appeals raising the Castellon/Robles issue by respondents outside the Seventh, Ninth, and Second Circuits. This will require adversely affected respondents to pursue their cases in federal court. The Government, in turn, will be required to defend the regulation in court, in all probability without the benefit of the Attorney General’s ruling in this case.
Second, Immigration Judges outside the Seventh, Ninth, and Second Circuits will be required to pretermit the issue of section 212(c) eligibility for temporary resident alien applicants in Castellon/Robles situations. This could result in numerous unnecessary appeals, remands, and motions to reopen in the event that the regulation is modified or overruled by the Attorney General or additional circuit courts.
Third, respondents outside the Seventh, Ninth, and Second Circuits, who could benefit from the Castellon/Robles rule, but who are under final orders of deportation, will have emergency stays of deportation and motions to reopen denied by the Immigration Judges and by us. Such respondents will be required to seek relief in the federal courts to maintain the status quo pending the Attorney General’s review.
Overall, our disposition of this case makes it likely that the important issue involved will be resolved in federаl court without the full benefit of the Attorney General’s review. It is also likely that a number of respondents who potentially could benefit from the Castellon/Robles rule, but who are not able to vindicate their rights in federal court, will be deported while the issue is being decided by the Attorney General.
I am disappointed that we were unable to develop an alternative that would have mitigated or alleviated some of the foregoing problems while this matter is pending review by the Attorney General.
For example, it might have been possible for the Board to announce a policy of holding appeals presenting the Castellon/Robles issue in abeyance pending the Attorney General’s resolution of the issue. It further might have been possible for the Board to direct Immigration Judges to preserve the issue by considering the merits of section 212(c) applications from respondents outside the Seventh, Ninth, and Second Circuits who would be covered by the Castellon/Robles rule.
The INS has been aware of the problem with
IV. CONCLUSION
I reluctantly conclude that the we are bound to follow
Unfortunately, such a course of action causes real practical problems in the efficient administration of the immigration laws. Therefore, I can only hope that the Attorney General’s review will be expeditious and will provide guidance that will assist this Board in responding not only to these cases, but also in responding to similar situations involving regulations that might arise in the future.
For the foregoing reasons, I reluctantly concur in Part IV of the majority opinion.
Section 212(c) of the Immigration and Nationality Act,
The regulatory history of
In addition, even if the statutory interpretation embodied in this case law were ultimately determined to be at odds with the scope of the “lawful unrelinquished domicile” language of the statute, the dissenting opinions have not adequately explained how this Board could ignore the regulation as a possible limitation on the exercise of discretion alone. However unlikely it may be, the regulatory history does not foreclose this as a basis for the regulation, and there is no claim that the regulation has been superseded by a subsequent statutory enactment. Under these circumstances, and as subordinate
With respect to the matters they do address, the dissenting opinions offer various theories for declining to follow the regulаtion as a codification of past Board case law, while the Chairman’s concurring opinion laments our inability to offer an interpretation of the statutory language independent of the regulation. I have no quarrel with the notion that the significant changes in the Immigration and Nationality Act, occurring from about 1980 onward, and the recent circuit court rulings on the scope of “lawful unrelinquished domicile” would ordinarily warrant a thorough reexamination by the Board of the rule first laid down in Matter of S-, supra. But I find it inappropriate to speculate on the outcome of such a reexamination, because the regulation restricts our authority irrespective of what might otherwise be our independent assessment of the statutory language in today’s environment. Moreover, I find the arguments for our declining to follow the regulation to be particularly unpersuasive.
1. The dissenting opinions contend that the Board should consider itself free to ignore the regulation in part because the literal language of the provision applies to district directors and Immigration Judges, and not specifically to the Board. This argument is easy to reject. It would not only be contrary to the spirit and overall intent of the regulation issued by our superior officer, the Attorney General, but it would create an administrative nightmare in its implementation.
On the strength of the regulation, Immigration Judges could properly decline to accept evidence bearing on the discretionary side of the waiver in cases involving aliens who use temporary residence time as part of the required 7 years. Indeed, Immigration Judges who took such evidence would be wasting their time, as the regulation forecloses grants of relief to such aliens. But, under the reasoning of the dissenting opinions, the Board would not similarly be foreclosed, аnd we could find these aliens eligible for relief on appeal. Unfortunately, without evidence bearing on the discretionary issues, we would be forced to remand the cases back to the Immigration Judges for the taking of evidence. But, once back on remand before the Immigration Judges, the aliens would again be foreclosed from obtaining relief under the literal terms of the regulation, and the dissents do not claim that Immigration Judges would be able to rely on our remand orders to override the regulatory direction of the Attorney General. Thus, even assuming that the Immigration Judges would hold the evidentiary hearings required by the remand orders that would flow from the position argued by the dissenting Board Members, the aliens would be forced to take further appeals to the Board to obtain discretionary rulings on their cases. In the process, we would very likely be deprived of the initial assessments of the Immigration Judges on the merits of the claims and on important collateral determinations, such as credibility, unless of course we were to direct the Immigration Judges to
The dissents’ suggestion would create confusion, result in the wasted and inefficient use of precious Immigration Judge hearing time in an already overburdened adjudicatory system, and force the parties through a prolonged, costly, and artificial process. Their suggestion is designed to circumvent the obvious implications of a regulation that, reasonably construed, binds the Board as well as Immigration Judges. While there may be room reasonably to disagree with the policy underlying the rule, that policy disagreement does not provide аdequate grounds for contorting and unreasonably construing the regulation as it relates to our authority.
The approach suggested by the dissenters, thus, is inconsistent both with the intent of the regulation and with the maintenance of a sensible adjudicatory system. Consequently, when properly interpreted,
2. The dissenting opinions also suggest that the regulation was promulgated in violation of the notice and comment provisions of the Administrative Procedure Act,
Aside from our lack of authority and expertise on APA questions, I find little value in our offering speculation on this subject. Even if there were a technical defect in the promulgation of the regulation, the Attorney General has ample rulemaking ability to correct any problems in relatively short order. Thus, if the Attorney General wants this restriction on section 212(c) relief, this Board is ill positioned to decline to follow that guidanсe on technical APA grounds.
3. The dissenting opinions also claim that the regulation is in conflict with the plain language of the statute, as construed by several courts of appeals, and that we are therefore free to ignore the terms of the regulation. A response to this contention requires a more detailed understanding of the
It is important at the outset to understand both why Matter of S- reflected a reasonable interpretation of the statute at the time it was decided, and why the courts that have criticized Matter of S- have misunderstood its foundations. That 1953 decision analyzed statutory changes, made by the then newly enacted Immigration and Nationality Act of 1952, to the Seventh Proviso of section 3 of the 1917 Immigration Act, the predecessor to section 212(c) of the 1952 Act. It concluded that for purposes of section 212(c) of the Act, the requirement that an alien be returning to 7 years of “lawful unrelinquished domicile” required the alien to have resided in the United States for 7 consecutive years subsequent to admission for permanent residence.
Notwithstanding the claims made in dissent today that the statute is clear, the phrase “lawful unrelinquished domicile” has no obvious meaning in the immigration law context. It is an ambiguous phrase that must be construed in relation to other immigration provisions. While the term “domicile” can be understood without reference to other provisions of the Act, determining when a domicile is “lawful” can only be done in relation to other concepts, and even then the history of litigation over this question suggests that there are several reasonable views. But even conceding that recent legislative changes have given potentially broader meaning to the concept of “lawful” domicile, the Board in 1953 was faced with construing an ambiguоus statute, and it properly looked to both the statutory language and the legislative history to give meaning to the words used by Congress.
Much of the debate over the years has centered on the import of a Senate Report, prepared prior to the 1952 Act, which had studied the immigration laws and which made various suggestions for revisions. That Report noted a “suggestion” that had been made in order to make clear that the waiver contained in the Seventh Proviso would only apply to lawful permanent residents who had been domiciled in the United States for 7 years. That “suggestion” was that the words “established after a lawful entry for permanent residence” should be inserted into the text of the Seventh Proviso to qualify the domicile required for eligibility. See S. Rep. No. 1515, 81st Cong., 2d Sess. 381-84 (1950) (hereinafter “Senate Report 1515”). Senate Report 1515 expressed no specific disagreement with the “suggestion,” but its discussion immediately proceeded to make a formal “recommendation” that the Seventh Proviso be limited to “lawful permanent residents who are returning to a lawful domicile of seven consecutive years after a temporary absence abroad.” Id. at 384. The exact language of the “suggestion” never appeared in the final text of section 212(c) when it was enacted in 1952. The Board’s 1953 ruling in Matter of S-, however, was consistent with that unenacted “suggestion.”
The United States Court of Appeals for the Second Circuit interpreted the omission of the “suggestion,” specifically the phrase “established after a
As the Second Circuit’s Lok ruling demonstrated, there are ambiguities in the legislative history, as well as in the statutory language, and the thoroughness of the analysis in Matter of S- in both respects may have left something to be desired. Nevertheless, the Board’s reading of the legislative history, while not the only plausible reading, was sound, even if not well articulated. See, e.g., Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979). First, I do not read the legislative history to reflect that Congress rejected the substance of the “suggestion” described in Senate Report 1515. Second, given the structure of the Act in 1952, it was unnecessary for Congress to add the phrase “established after a lawful entry for permanent residence” to the text of the statute, because even without that language, the statute would most appropriately be read to limit the application of section 212(c) to those who had established lawful domicile by virtue of 7 consecutive years as lawful permanent residents.
With the exception of a small number of nonimmigrant classes, only lawful permanent residents would have been able to be both domiciled in the United States and in lawful status in 1952.1 This group of nonimmigrants included foreign diplomats enjoying diplomatic immunity and designated foreign representatives to international organizations. Sections 101(a)(15)(A), (G) of the Act,
What is much more likely, in my judgment, is that the 1950 Senate Committee which studied the immigration laws believed its “recommendation”
Moreover, we have revisited our analysis in Matter of S-, supra, on several occasions and have consistently determined that the conclusion reached in that case properly reflected the intent of Congress at the time of the enacting legislation. See Matter of Kim, supra; Matter of Newton, supra; Matter of Anwo, supra. In particular, we have noted that Congress intended the changes made with the 1952 Act to restrict the scope of the Seventh Proviso. See Matter of Newton, supra (analyzing Senate Report 1515 again). The Board’s consistent view that the 7 years of lawful domicile accrues only subsequent to acquisition of lawful permanent resident status is consistent with restricting eligibility for section 212(c).
Indeed, if Congress had disagreed with the holding in Matter of S-, it could have revised the statute to clarify its position. Yet, since that decision was rendered in 1953, Congress has not made any changes to section 212(c) that indicate disagreement with our long-standing interpretation. This is so, despite the fact that we have consistently declined to extend the Second Circuit’s Lok rule elsewhere, and despite othеr changes that have been made to the text of section 212(c).
The nature of the relief provided in section 212(c)—a waiver of an exclusion or deportation ground and the permission to continue to live in the United States—also supports our prior holdings on the interpretation of lawful domicile. To be eligible for a waiver under section 212(c) of the Act, one must be a lawful permanent resident and must show lawful unrelinquished domicile of 7 years. Other forms of relief that allow aliens to remain in the United States permanently impose more significant eligibility requirements. For example, suspension of deportation, like section 212(c), requires a term of residence in the United States, but, unlike section 212(c), it also requires a showing of good moral character during that residence and a showing that deportation would result in either extreme hardship or exceptional and extremely unusual hardship to the alien or to certain relatives. See section 244(a) of the Act,
Congress, in its revisions to the immigration laws in 1952, sought to eliminate certain abuses that it perceived with respect to these forms of permanent relief. See, e.g., Senate Report 1515, at 381-84 (addressing the Seventh Proviso, which was the predecessor to section 212(c)), 595-603, 609-11 (addressing suspension of deportation). The Board’s past construction of the ambiguous terms of section 212(c) is consistent with, and does not undermine, this legislative purpose.2 The position the Board adopted in Matter of S-, supra, that only aliens who have been lawful permanent residents for 7 years can be eligible for 212(c) relief, had the practical effect of harmonizing section 212(c) and suspension of deportаtion. The position adopted in Matter of S- renders more significant the threshold eligibility requirements for a 212(c) waiver and consequently is more consistent with the treatment in other provisions of the Act that provide permanent relief from deportation. See Matter of Anwo, supra, at 297-98.
Our long-standing rule that only aliens who have been lawful permanent residents for 7 years can be eligible for 212(c) relief is thus supported by the legislative history, by the limited potential scope of the statute when originally enacted, and by comparison to other forms of permanent relief from exclusion or deportation.
There have been substantial changes to the Act in recent years, and there clearly are more categories of aliens who can argue now that they can be both lawfully here and domiciled here, than was the case in 1953. But that fact at most argues for a reexamination of Matter of S-. It does not establish that ambiguous statutory language is now clear, nor that a reasonable interpretation of the statute adhered to for over 40 years, and now reflected in a regulation, is at odds with the plain language of the statute.
Congress did use different phrases when it enacted the “lawfully admitted for permanent residence” and the “lawful unrelinquished domicile” requirements of the statute. But we have not equated these phrases; the “unrelinquished domicile” requirement does have an independent meaning. See Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). The Board for decades, however, has construed the word “lawful” to restrict the immigration status that would allow an alien’s domicile to be considered “lawful,” largely because of the extremely limited possible scope of this concept in years past
The question that arises, in my view, is whether an interpretation of the statute that was reasonable for so many years now becomes unreasonable, not because the statute in question has been amended, but because surrounding provisions have been amended in such a way as to create respectable arguments for a new construction of the unchanged, but ambiguous statutory phrase. I believe the correct answer lies in the fact that the statute remains ambiguous.
As Matter of S- continues to reflect one reasonable interpretation of the ambiguous language of section 212(c), its codification in a regulation cannot be improper. As a consequence, the entire premise of the dissenting opinions’ attack on the Attorney General’s regulation fails. It is therefore unnecessary to consider other questions posed by the dissents (such as the scope of our authority if we were to conclude that a statute and a regulation were incompatible).
There are two distinct but fundamental issues before the Board in this case.
The first question is whether, as the Board first held in Matter of S-, 5 I&N Dec. 116 (BIA 1953), the statutory language of section 212(c) of the Immigration and Nationality Act,
The second, and perhaps the more dispositive question is whether the scope of the Board’s authority, as delegated by the Attorney General under 8
The ultimate question that follows is whether, in the case before the Board, we are “bound” by the Attorney General’s rule which purports to codify our precedent in Matter of S-, supra, and if we are bound, what deference must we accord to such codification? On this critical question, the majority, without reaching the substantive issue, would dismiss the instant appeal on the grounds that the regulation is binding and there is no basis upon which we may deviate from its terms.
This decision has prompted the filing of four separate opinions, two of which are dissents in which a third member joins. In his concurring opinion, the Chairman, while inclined to find that neither our decision in Matter of S-, supra, nor the 1991 interim rule is a correct interpretation of the law, agrees that our hands are tied and that we must abide by the 1991 rule because it is a regulation promulgated by the Attorney General. An additional concurrence from Board Member Filppu goes the opposite direction, and attempts to speculate upon an issue not even advanced by either party: that perhaps the Attorney General had some substantive discretionary basis for including the language of
For the reasons discussed below, I agree with the dissenting opinion of Board Member Villageliu and joining Member Guendelsberger and would exercise the authority delegated to us by the Attorney General, overrule Matter of S-, and find
Thus, I would sustain the appeal and remand for a full hearing on the merits of section 212(c) waiver eligibility and the exercise of discretion. In deference to the Attorney General, given the divergence of the opinion concerning the scope of our ability to exercise our delegated power and the fact that the regulation has not been struck down specifically by the various circuit courts of appeals which have overruled or questioned the analysis underlying our
I. LAWFUL DOMICILE MAY BE ESTABLISHED INDEPENDENT OF REQUIRING LAWFUL PERMANENT RESIDENT STATUS
We confront first the question of whether an applicant for relief under section 212(c) of the Act, who at the time of application is a lawful permanent resident of the United States, may establish an unrelinquished lawful domicile of 7 years as required by the statute without doing so exclusively on the basis of holding lawful permanent resident status for the requisite 7-year period. As to this question, I find that the unambiguous terms of the statute make clear that “lawful unrelinquished domicile” of 7 years is an independent statutory eligibility requirement to be met by a lawful permanent resident alien who wishes to apply for and be granted a waiver under section 212(c) of the Act. The statute reads:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) (other than paragraphs (3) and (9)(C). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vеsted in him under section 211(b). The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
The language of the statute provides that lawful domicile may be established by a noncitizen who intends to dwell or reside in the United States and establishes a dwelling or residence which is lawful under common usage as well as under the immigration laws. To the extent that Matter of S-, supra, compels the conclusion that only those persons lawfully admitted for permanent residence who have acquired 7 years’ domicile after having attained that status qualify for the discretionary benefits of section 212(c), I find it to be directly in conflict with the plain language of the statute.
In my view, the statutory language in the 1952 Act never compelled nor supported the Board’s generalization of the conclusion it reached on the particular facts in Matter of S-.3 Arguably, even then the statute called for
My conclusions and those of the concurring and dissenting Board Members Schmidt and Villageliu joined by Guendelsberger are supported by several circuit courts of appeal.4 In particular, in Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995), the United States Court of Appeals for the Ninth Circuit ruled explicitly that the argument of the Immigration and Naturalization Service that Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979), which found that requisite domicile “began when an alien was admitted for lawful permanent residence,” still is controlling, must fail. Reading the statutory language in the context of the statute as amended since the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, the Ninth Circuit rejected the agency interpretation, finding that the statutory scheme no longer supports it.5
Given that lawful domicile has a meaning distinct from LPR, we find no reason to equate the two terms. We cannot defer to the BIA‘s interpretation of section 212(c) because the plain meaning of the term “lawful unrelinquished domicile” discussed above does not lead to either an absurd result, or one at odds with Congressional policy. Section 212(c) was designed to help aliens who are likely to have established strong ties to this country, something not requiring LPR status.
Id. at 153 (citations omitted).
Indeed, there is growing unanimity in the federal courts that the Board‘s past reading of section 212(c) as amended in 1952 is not a permissible one. The Board‘s policy of requiring that a section 212(c) applicant have 7 years of lawful permanent residence imposes a requirement that is not included in the statute by Congress and is ultra vires. West Virginia University Hospitals v. Casey, 499 U.S. 83, 101 (1991); Romero v. INS, 39 F.3d 977 (9th Cir. 1994). To date, the Board‘s interpretation that lawful domicile and permanent residence must accumulate concurrently for purposes of section 212(c) eligibility has been rejected by a number of circuit courts of appeals.7 Moreover, neither the fact that our interpretation in Matter of S-, supra, has
II. THE BOARD IS AUTHORIZED TO EXERCISE THE DELEGATED DISCRETION AND AUTHORITY CONFERRED UPON THE ATTORNEY GENERAL BY LAW
As to the second question concerning our authority, I find the majority‘s reasoning is circular when it suggests that the Board is without authority to consider and rule upon regulations promulgated by the Attorney General because her determinations with respect to all questions of law are controlling. This begs the question. In fact, we have been delegated the authority of the Attorney General to administer and enforce the Immigration and Nationality Act and related laws “subject [only] to any specific limitation.”
A. The Regulation is at Odds with the Plain Language of the Statute
Neither the interpretation of section 212(c) nor the result pressed by the majority is consistent with the plain language of the statute. The Supreme
Reading the regulation and the scope of our authority to require our adherence or acquiescence to a reading (compelled by the rule) which the Seventh and Ninth Circuits have rejected, and which other circuits such as the Fifth have indicated their inclination to reject, is not reasonable.10 It can only lead to a series of reversals by those circuit courts of appeals which have not yet addressed the issue and which are likely to follow their sister circuits, not to mention the human costs to otherwise qualified applicants and their families. For these and the additional reasons stated by dissenting member Villageliu, I believe we are bound to seek a resolution of this issue which would avoid this futile allocation of time and resources by the Attorney General, the parties, and the courts.
The Board‘s function as the arbiter of an administrative immigration appeals, empowered by the Attorney General to function within the Department of Justice, does not relieve us of an adjudicatory responsibility to review the language of rules promulgated by the Attorney General together
To follow the course proposed by the majority abdicates our responsibility as an administrative agency to interpret the statute which governs our adjudications, contrary to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), faced with an issue not dissimilar from that before us here, the Court differentiated between two types of interpretive questions, noting that the “narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts.” Id. at 448 (emphasis added).11 In the Board‘s case, as a result of our unique position as an impartial administrative appellate body within the Department of Justice, I believe it is fair to say that we function as a “court” within the agency. Our role in matters within our jurisdiction should include both examining and correcting misinterpretations or misapplications of the statute by components of our own agency.12
Indeed, this Board, acknowledging the principle underlying the analysis in Cardoza-Fonseca, has stated: “It is a well-established rule of statutory construction that, in cases in which Congress includes particular language in one section of a statute but omits that language in another ..., a presumption arises that the disparate inclusion and exclusion was intentional and purposeful.” Matter of Hou, 20 I&N Dec. 513, at 519-520 (BIA 1992) (citing INS v. Cardoza-Fonseca, supra, at 449 (1987)).13 That principle is no less controlling here.
There is precedent for the Board to review and construe regulations in relation to current law. For example, in Matter of Kwun, 13 I&N Dec. 457 (BIA 1969, 1970), the Board reviewed
Similarly, it is not unprecedented for the Board actually to take action contrary to the terms of a regulation. This is particularly true where the Board has found the reading of a statute‘s terms to differ with a regulation. In Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993), the Board expressly did not follow
Further, in Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), the Board appears to have overruled, without so stating, the jurisdictional provision of
Moreover, here the actual language of the regulation in question neither addresses nor specifically limits the powers of the Board on its face; it only regulates district directors and Immigration Judges. It does not specifically limit the authority of the Board under
In any event, codification of our prior interpretation should not divest us of authority to revisit that interpretation and to change it to comport with amendments to the statute and decisions of those federal circuit courts of appeal which have rejected that interpretation. The summary of the interim rule and the Supplementary Information which precedes it in the Federal Register make clear that the purpose of the rule was to implement changes made by the Immigration Act of 1990, not to address the “lawful domicile” issue.15 Moreover, as noted by Board Member Villageliu, the regulation calling for this controversial interpretation has no origin other than our holding in Matter of S-, supra. To restrict our ability to modify or overrule our own precedent decision based upon only its adoption for codification, without more, strains credulity.
Board Member Filppu attempts to make much of the dissenters’ mention of this discrepancy, claiming that a literal reading would lead only to chaos. However, there are many equally reasonable constructions of the impact of this disparity short of such a doomsday scenario. For one, the Board exercises de novo review authority over many decisions of district directors and over most decisions issued by Immigration Judges. For another, if as Board Member Filppu posits, the regulation is absolutely binding, its failure to mention the Board suggests that its terms are no more than a form of deference to the Board‘s precedent decision in Matter of S-, supra, and should be modified in accordance with modification of that decision.
Therefore, I am not persuaded that our hands are tied on account of the regulation at issue. Consistent with our recognition of the principle in Matter of Hou, supra, there is nothing to prevent the Board from engaging in such legal interpretation, applying those principles of statutory construction, and concluding that neither our decision in Matter of S-, supra, nor the regulation can stand. Given our delegated authority to designate precedents which shall be binding “in all proceedings involving the same issue or issues,” (
In my view, the preferred way to achieve such a result would be for us to take the lead in adopting the holding of Ortega de Robles, supra, and the rationale of Castellon-Contreras v. INS, supra, as the administrative precedent, rather than merely to passively follow, as, circuit by circuit, Matter of S- and ultimately the regulation are struck down. In this regard, I note that such an approach is one consistent with the rationale of agency expertise which underlies the concept of deference in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra.
III. CONCLUSION
We certainly are as accountable to the provisions of the Act as we are to the regulations of the Attorney General. That is a particularly fair statement here, where the regulation in question is no more than a generalized restatement of our own interpretation of the terms of the Act, and we find it necessary to modify or overrule it in order to conform to the statute. We also have a duty to see that substantive rights under the Act are given priority and are not sacrificed to an elevation of form over content. Consequently, I would act now to overrule our prior decision in Matter of S-, and to find the regulation inapplicable in the case of an applicant for relief under section 212(c) who was first lawfully admitted as a temporary resident under section 245A of the Act. I would hold that lawful domicile may be established according to its commonly accepted dictionary definition, and that the requirement of 7 years of unrelinquished lawful domicile under the statute is distinct from the requirement of admission for lawful permanent residence.
DISSENTING OPINION: Gustavo D. Villageliu, Board Member, in which John W. Guendelsberger, Board Member, joined
I respectfully dissent.
While I concur with most of the reasoning of the concurring opinion by Board Chairman Schmidt in this case, I respectfully dissent from its conclusion that we are necessarily bound by
Section 212(c) of the Act requires that an alien be a lawful permanent resident returning to a lawful unrelinquished domicile of at least 7 years for eligibility. I read the statute narrowly to require the status of being a lawful permanent resident, and a lawful unrelinquished domicile in the United States of at least 7 years. The Board‘s ruling equates lawful permanent
First of all, although our interpretation of “lawful unrelinquished domicile” in Matter of S-, supra, may have been originally sound, it has been rendered obsolete by the numerous subsequent statutory provisions enacted by Congress which permit an alien to establish a lawful unrelinquished domicile in the United States other than lawful permanent residence.1 Here, the respondent is a permanent resident who was admitted into the United States as a lawful temporary resident effective April 27, 1988. He had a right to be domiciled in this country as of that date. Thus, he has met the statutory requirements for applying for section 212(c) relief of both lawful permanent residence and a lawful unrelinquished domicile of more than 7 years, even if his eventual admission for lawful permanent residence took place on September 6, 1991, less than 7 years before his application for a section 212(c) waivеr of excludability. As noted by the concurring opinion, every court which has reviewed this issue recently has come to the same conclusion. See Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995); Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995); cf. Lok v. INS, 548 F.2d 37 (2d Cir. 1977). The courts that have not yet had to reach the issue have also indicated that they would reach the same result in cases involving the time accrued as a lawful temporary resident under the amnesty provisions of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (“IRCA“). See Melian v. INS, 987 F.2d 1521, 1524-25 (11th Cir. 1993); Prichard-Ciriza v. INS, 978 F.2d 219, 223-24 (5th Cir. 1992). This trend suggests that the statutory language is clear and that it should control over a conflicting regulation.
The conflicting regulation,
I recognize that this Board is bound by the regulations enacted by the Attorney General. See Matter of Fede, 20 I&N Dec. 35 (BIA 1989). However, this Board is also bound by the statutes enacted by Congress. See Matter of Valdovinos, 13 I&N Dec. 343 (BIA 1982), and cases cited therein. Where a federal statute and a regulation conflict, the statute controls. In fact section 242(b) of the Act,
The regulations at
The majority‘s approach runs against the need for uniformity in the enforcement of our immigration laws regarding criminal aliens. Cf. Matter of Silva, 16 I&N Dec. 26 (BIA 1976) (adopting the rule of Francis v. INS, 532 F.2d 268 (2d Cir. 1976), regarding section 212(c) applications in deportation proceedings). Immigration Judges outside the jurisdiction of United States Courts of Appeal for the Second, Seventh, and Ninth Circuits will be bound to a doomed rule pretermitting applications for section 212(c) waivers, until these applications are eventually revived by the courts or the passage of time renders the issue moot. Most aliens who obtained their residence through IRCA will have their 7 years of lawful permanent residence long before this issue is finally resolved by all of the circuits or there is a change in the language of the regulation. Meanwhile, the mandate for an expeditious resolution of criminal alien cases will be seriously undermined by creating a class of criminal aliens whose section 212(c) waiver applications are merely postponed by the majority‘s refusal to timely decide these cases while the criminals are still imprisoned so that those ordered deported can be expeditiously removed, and those granted relief from deportation can proceed to rehabilitate themselves without the limitations imposed on aliens whose deportation
BEFORE THE ATTORNEY GENERAL
(June 29, 1997)
Pursuant to
BEFORE THE BOARD ON REMAND
(October 8, 1997)
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board Members. Dissenting Opinion: ROSENBERG, Board Member.
SCHMIDT, Chairman:
This case is before us on remand from an order of the Attorney General dated June 29, 1997. In our original decision in this case, we addressed the question of the respondent‘s statutory eligibility for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act,
In her order, the Attorney General noted that an interim regulation that resolved the issue in this case was published on November 25, 1996. See 61 Fed. Reg. 59,824 (1996); see also
On April 24, 1996, while this case was pending before the Attorney General, Congress amended section 212(c) of the Act by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (“AEDPA“). Under the provisions of that section, an
The respondent in this case conceded deportability under section 241(a)(2)(B)(i) of the Act,
In view of the Attorney General‘s remand for reconsideration of this case and the 1996 amendment of the statute, our prior order will be vacated. Upon reconsideration, we again find that the respondent is deportable as charged and that he is inеligible for section 212(c) relief. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: Our decision of January 3, 1996, is vacated.
FURTHER ORDER: The appeal is dismissed.
DISSENTING OPINION: Lory D. Rosenberg, Board Member
I respectfully dissent.
I dissent from the majority opinion for the reasons stated in my dissenting opinion in Matter of Cazares, 21 I&N Dec. 188 (BIA 1996; A.G., BIA 1997).
Although the posture of the instant case is slightly different because we did not find ourselves bound by federal court authority in the jurisdiction in which this respondent‘s case arose, the equitable considerations warranting nunc pro tunc adjudication of the respondent‘s waiver application under section 212(c) of the Immigration and Nationality Act,
At that time, the Board‘s interpretation that lawful domicile and permanent residence must accumulate concurrently for purposes of section 212(c)
As I discussed in my dissenting opinion in Matter of Cazares, supra, the regulation published by the Attorney General while Matter of Cazares and this case were pending before her, suggests strongly that the Attorney General wished to bring agency policy and practice into compliance with the rulings of the several Federal courts that had addressed the treatment of persons first admitted for lawful temporary residence, whose status was later adjusted to that of lawful permanent resident. It also is notable that, in enacting the cancellation of removal provision, which is widely accepted as replacing waiver relief under former section 212(c) of the Act, Congress crafted the terms of that provision explicitly to acknowledge the distinction between the acquisition of lawful permanent resident status and the period of residence accrued after admission in any status. See section 240A(a) of the Act, enacted at section 304(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-587 (Sept. 30, 1996) (to be codified at
Our adherence in the respondent‘s case to an interpretation that by all accounts has now been shown to be founded on an erroneous interpretation of the statute, wrongly denied him the opportunity to apply for a form of relief that he was erroneously precluded from applying for at the time of his hearing. Typically, a procedural error, such as the erroneous denial of an
When remand for reopening to afford the respondent the opportunity to apply for relief no longer can meaningfully cure the prior error, it is then that the equitable remedy of nunc pro tunc relief is appropriate. Batanic v. INS, supra (holding that where denial of the right to counsel deprived the respondent of his right to apply for asylum, counsel‘s ability to protect the respondent‘s rights in a reconvened hearing must include the ability to apply for asylum nunc pro tunc because of an intervening change in the statute). In particular, “when the procedural defect has also resulted in the loss of an opportunity for statutory relief,” the demands of due process require more than merely reconvening the hearing. Id. at 667 (emphasis added). When a violation of due process results in a denial of a fair hearing on the question of eligibility for relief, the respondent should be afforded the opportunity for consideration of his claim based upon the law as it existed at the time he was deprived of his rights. Snajder v. INS, 29 F.3d 1203, 1208, n.12 (7th Cir. 1994).
For these reasons I would remand the respondent‘s case for consideration of his section 212(c) application nunc pro tunc.
Notes
Powers of the Board--(l) Generally. Subject to any specific limitation prescribed by this chapter, in considering and determining cases before it as provided in this part the Board shall exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case. In fact,