PONCE DE LEON
Case Information
*1 Interim Decision #3261
Interim Decision #3261
In re Hector PONCE DE LEON-Ruiz, Respondent
File A91 278 310 - Bloomington
Decided by Board January 3, 1996
Decided by Attorney General June 29, 1997
Decided by Board on remand October 8, 1997
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Following the amendment of section 212(c) of the Immigration and Nationality Act,
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,
dismissed. The respondent’s request for oral argument before the Board is
denied.
See
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 subse- quently 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 con- victed 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
At the respondent’s hearing on October 11, 1994, the Immigration Judge took lengthy
testimony on the issue of the correct dates upon which the respondent was properly deemed to
have adjusted to a temporary resident and to a lawful permanent resident. We concur in the
Immigration Judge’s conclusion that both dates were incorrectly recorded on the Respondent’s
Alien Registration Receipt Card (Form I-551). The proper date upon which the respondent is
deemed to have acquired temporary residence is April 27, 1988, the fee stamp date on his
Application for Status as a Temporary Resident (Form I-687).
III. DEPORTABILITY FOR AGGRAVATED
FELONY CONVICTION The respondent argues that his conviction for the sale of marihuana is not an aggravated felony because under Minnesota law, such convictions are not *3 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 sen-
tence 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 fel-
ony conviction. It is well established that a conviction attains a sufficient
“Felony” means a crime for which a sentence of imprisonment for more than one year may
be imposed.
degree of finality for immigration purposes when direct appellate review of
the conviction has been exhausted or waived.
See Matter of Ozkok,
19 I&N
Dec. 546, 522 n. 7 (BIA 1988). The availability of post-conviction motions or
other forms of collateral attack does not affect the finality of the conviction
for immigration purposes, unless and until the conviction has been over-
turned pursuant to such a motion.
See Okabe v. INS
,
Further, even if the respondent’s conviction were reclassified as a misde-
meanor, 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 analo-
gous 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
,
The respondent became a lawful permanent resident on September 6, 1991, and thus satisfies the first requirement. Only the second requirement, whether the respondent has established 7 years of lawful unrelinquished domicile for section 212(c) purposes, is at issuе in this case.
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
,
(f) Limitations on discretion to grant an application under section 212(c) of the Act. A dis- trict 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
The Board is bound to uphold agency regulations. The Board and Immi -
gration 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,
158 The respondent suggests that the United States Court of Appeals for the Eighth Circuit, in which this case arises, has indicated that it might be willing to consider that the 7 years of lawful unrelinquished domicile need not begin at the time lawful permanent residence is acquired. Although we are bound by a circuit court’s precedents when adjudicating cases arising within that circuit, see, e.g., Matter of Anselmo, supra , at 30, we do not agree that there is a controlling case in the Eighth Circuit.
The respondent points to
Margalli-Olvera v. INS
,
To be eligible for a
ORDER : The appeal is dismissed.
FURTHER ORDER:
This decision is referred to the Attorney
General for her review pursuant to
I respectfully concur.
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 fol-
low
My reluctance is based on (1) my opinion that
unable to fashion a constructive solution to the administrative problems
caused by our decision. Our decision fails to provide any useful guidance on
the major legal question before the Board: Whether or not time spent in tem-
porary resident alien status counts as “lawful unrelinquished domicile” for
purposes of
I write separately because I believe that the general rule that we must con- tinue 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 situa- tions 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 rul-
ings of the Seventh Circuit in
Castellon-Contreras v. INS
,
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
,
As recently pointed out by the Fifth Circuit in
Hussein v. INS
,
As a result of the foregoing rulings, the regulation that we follow in this
opinion is, as a practical matter, no longer good law in four major circuits and
is also likely to be rejected in the Fifth Circuit. Those jurisdictions that have
rejected the Board’s rule encompass the states of California, Florida, New
*7
York, Illinois, and Arizona where many, probably the majority, of today’s
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
First, we will dismiss a number of currently pending appeals raising the Castellon/Robles issue by respondents outside the Seventh, Ninth, and Sec- ond 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 сourt, in all probability without the benefit of the Attorney Gen- eral’s ruling in this case.
Second, Immigration Judges outside the Seventh, Ninth, and Second Cir-
cuits will be required to pretermit the issue of
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 pend- ing the Attorney General’s review.
Overall, our disposition of this case makes it likely that the important issue involved will be resolved in federal court without the full benefit of the Attor- ney 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.
III. THE FOREGOING PROBLEMS MIGHT HAVE BEEN
MITIGATED OR ALLEVIATED 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 pol-
icy 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
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.
CONCURRING OPINION: Lauri S. Filppu, Board Member, in which Fred W. Vacca, Board Member, joined
I join the majority opinion. I write separately to respond to several conten- tions advanced by the dissenting opinions. I understand the silence of the majority, in the face of these contentions, to reflect a rejection of them for diverse reasons such that a collective and unanimous response may not be possible. I believe, however, that some response is in order so that no one will
misconstrue the majority’s silence as tacit acceptance of the force of those contentions.
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 Bоard 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 regula- tion, and there is no claim that the regulation has been superseded by a subse- quent statutory enactment. Under these circumstances, and as subordinate officers under the Attorney General, I would think it necessary to negate all possible grounds for a regulation were we ever able to decline to follow one.
With respect to the matters they do address, the dissenting opinions offer various theories for declining to follow the regulation as a codification of past Board case law, while the Chairman’s concurring opinion laments our inabil- ity to offer an interpretation of the statutory language independent of the reg- ulation. 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 domi- cile” would ordinarily warrant a thorough reexamination by the Board of the rule first laid down in . But I find it inappropriate to specu- late 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 particu- larly 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 provi- sion applies to district directors and Immigration Judges, and not specifically to the Board. This argument is easy to reject. It would not only bе 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, and 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 Immi- gration 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 *10 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
164 offer advisory opinions on these subjects. In any event, it could often take two administrativе appeals for an alien to get around the regulatory prohibi- tion applicable to Immigration Judges.
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 pro- longed, costly, and artificial process. Their suggestion is designed to circum- vent the obvious implications of a regulation that, reasonably construed, binds the Board as well as Immigration Judges. While there may be room rea- sonably to disagree with the policy underlying the rule, that policy disagree- ment does not provide adequate grounds for contorting and un reasonably 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 promul-
gated in violation of the notice and comment provisions of the Administra-
tive 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
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 *11 Interim Decision #3261
reasons behind our long-standing ruling, first announced in Matter of S-, supra , and of why some courts have erred in finding that construction to be untenable.
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
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 phrasе 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 ambiguous statute, and it properly looked to both the statutory language and the legislative his- tory 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 con-
tained 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
The United States Court of Appeals for the Second Circuit interpreted the omission of the “suggestion,” specifically the phrase “established after a
lawful entry for permanent residence,” from the statute to indicate that Con-
gress did not intend the 7 years of lawful domicile to accrue only after admis-
sion for permanent residence.
Lok v. INS
,
As the Second Circuit’s
Lok
ruling demonstrated, there are ambiguities in
*12
the legislative history, as well as in the statutory language, and the thorough-
ness 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
,
With the exception of a small number of nonimmigrant classes, only law-
ful permanent residents would have been able to be both domiciled in the
United States and in lawful status in 1952. 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 Com- mittee which studied the immigration laws believed its “recommendation” To establish domicile, an alien must be physically present in the United States and intend to make the United States his or her home for the indefinite future. Matter of Sanchez , 17 I&N Dec. 218, 221 (BIA 1980). Most nonimmigrants are required to maintain a foreign residence which they have no intention of abandoning, or must be here for a temporary purpose, and thus could not lawfully be domiciled in the United States. There was, and is today, a small group of nonimmigrants who could have an intent to remain in the United States indefinitely, and thus could maintain domicile in the United States, e.g., diplomats, foreign government representatives, treaty traders, and media representatives. See Castillo-Felix v. INS, supra , at 464. However, as one court reasoned, it seems that if Congress had “intended to benefit only this small and rather exclusive group of nonimmigrants in addition to aliens with permanent resident visas . . . it would have said so more clearly.” Id.
(Senate Report 1515, at 384, para. “e”) to be consistent with the “suggestion”
which had been discussed, in positive terms, in the paragraph preceding the
“recommendation.” Congress omitted the phrase that was “suggested” in
Senate Report 1515 from the final version of
Moreover, we have revisited our analysis in , 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
*13
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 Mat-
ter of Newton, supra
(analyzing Senate Report 1515 again). The Board’s con-
sistent view that the 7 years of lawful domicile accrues only subsequent to
acquisition of lawful permanent resident status is consistent with restricting
eligibility for
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
The nature of the relief provided in
requirements for
Congress, in its revisions to the immigration laws in 1952, sought to elimi-
nate 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 Pro-
viso, which was the predecessor to
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 origi- nally 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 hеre, 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 interpreta - tion of the statute adhered to for over 40 years, and now reflected in a regula- tion, is at odds with the plain language of the statute.
Congress did use different phrases when it enacted the “lawfully admitted
*14
for permanent residence” and the “lawful unrelinquished domicile” require-
ments 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
[2]
Consider, by way of illustration, the case of an alien who spent 6 years in the United States
as a nonimmigrant treaty trader and 1 year as a lawful permanent resident before committing a
deportable offense. To obtain suspension of deportation, this alien would need, among other
things, to meet the extreme hardship requirement of section 244(a)(1) of the Act. If, however,
his 6 years as a treaty trader counted toward the “lawful unrelinquished domicile” requirement
of
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 becаuse the statute in question has been amended, but because surrounding provisions have been amended in such a way as to create respectable argu- ments 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
DISSENTING OPINION: Lory D. Rosenberg, Board Member
I respectfully dissent.
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
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 regulation at
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 cod- ify 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 spec-
ulate upon an issue not even advanced by either party: that perhaps the Attor-
ney General had some substantive discretionary basis for including the
language of
For the rеasons 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
Mat-
ter of S-
, and find
Thus, I would sustain the appeal and remand for a full hearing on the mer-
its of
holding in Matter of S- , I believe it prudent to certify our decision in this case to the Attorney General.
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 sec-
tion 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 domi-
cile 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 independ-
ent statutory eligibility requirement to be met by a lawful permanent resident
alien who wishes to apply for and be granted a waiver under
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad vol-
untarily 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 para-
graphs (3) and (9)(C). Nothing contained in this subsection shall limit the authority of the
Attorney General to exercise the discretion vested 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 estab-
lished 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 ,
compels the conclusion that only those persons lawfully admitted for perma-
nent residence who have acquired 7 years’ domicile
after
having attained that
status qualify for the discretionary benefits of
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-
. Arguably, even then the statute called for
It is important to clarify exactly the fact situation addressed by the Board in
Matter of S-,
supra.
There, the respondent had been admitted for permanent residence only 4 years before the
Board’s decision, but had been domiciled in the United States before admission to permanent
residence. He argued that
distinct definitions of the phrases “admitted for lawful permanent residence” and “lawful unrelinquished domicile.” Nevertheless, given the legislative history and the categories of persons able to establish “lawful domicile” according to the common dictionary definition and the various categories which existed prior to 1980, such an interpretation, even if it blurred the dis- tinction in the plain statutory language used, was not wholly unreasonable. Today, however, there have been significant changes in many aspects of the statute and in the courts since our decision in Matter of S- and its progeny that *17 warrant clarification and the reversal of the holding in that decision.
My conclusions and those of the concurring and dissenting Board Mem-
bers Schmidt and Villageliu joined by Guendelsberger are supported by sev-
eral 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 Naturaliza-
tion Service that
Castillo-Felix v. INS
,
requirements permitting domicile of any character to qualify an otherwise eligible applicant to
apply for the waiver. To the Board of the 1950’s, just as to the Ninth Circuit of the 1960’s
(discussed
infra
), considering this requirement to be coextensive primarily with the status of
lawful permanent residence, while not precise, was of little practical adverse consequence to
the lawfully resident alien.
[4]
It is curious that Board Member Filppu’s critique of the “dissenters” (and implicitly of the
circuit courts of appeal for the Second, Fifth, Seventh, Ninth, and Eleventh circuits with which
at 118 (emphasis added). This portion of the decision,
Id.
.” years subsequent to a those lawfully resident aliens who are returning to an unrelinquished domicile of 7 consecutive
states explicitly that “we come to the conclusion that this provision of law is available only to
lawful entry
which Board Member Filppu purports to defend, finds the language of the statute to be plain.
,
Matter of S-, supra
from “lawfully admitted for permanent residence” is not manifest. Indeed, we concur), asserts that the meaning of the term “lawful unrelinquished domicile” as distinct
Actually, the language of the decision creates its own ambiguity. On the one hand, the Board
The
.
supra
factual posture of that case as discussed in note 3, , is found in the specific
reasonable reconciliation of this ambiguity in
Id.
of lawful permanent residence. It states merely that an applicant must be one (1) who is a lawful
we construe the section to mean that the alien . . . must have resided in this country for 7
. On the other hand, the decision goes on to state: “In other words,
lawful entry
subsequent to a resident alien; (2) who has an unrelinquished domicile of 7 consecutive years; which is (3)
by its plain language does not require that the 7 years be accumulated subsequent to acquisition
consecutive years subsequent to . . . lawful admission for permanent residence . . . .” While the Ninth Circuit talks in terms of having deferred previously to the agency, in fact it
appears to have done so only because the alternate reading of the language of the statute
appeared at the time to amount to an almost exclusively an academic distinction ("'that a small
group of nonimmigrants [such as diplomats] could conceivably qualify as "lawfully" domiciled
. . . does not persuade us that "lawful" [in "lawful unrelinquished domicile"] should be defined
This result is consistent with the much more explicit statutory construction
employed in
Castellon-Contreras v. INS
,
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
Indeed, there is growing unanimity in the federal courts that the Board’s
past reading of
174
endured for 50 years, nor the existence of the 1991 regulation has any weight
in the face of the conclusion the rule is an ultra vires one.
See Brown v.
Gardner
,
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 control-
ling. This begs the question. In fact, we have been delegated the authority of
the Attorney General to administer and enforce the Immigration and Nation-
ality 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
175
Court law on this point is clear: even a long-standing agency regulation is not
entitled to deference if it conflicts with the plain language of the statute.
See
Brown v. Gardner, supra; see also Demarest v. Manspeaker, supra
. If we are
compelled to deny eligibility to categories of lawfully domiciled persons,
such as the respondent in the case before us, our decision would arguably
constitute at best an outdated, and arguably incorrect, interpretation of the
statute. At worst, if based upon
Reading the regulation and the scope of our authority to require our adher- ence 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 Depart-
ment of Justice, does not relieve us of an adjudicatory responsibility to
review the language of rules promulgated by the Attorney General together
While we are not expressly empowered by the regulations to determine violations of either
the Administrative Procedure Act or constitutional questions, we are authorized to interpret the
law and to take actions which give rational effect to the statutory and regulatory provisions at
issue in the cases which come before us. As discussed, the rule, and the policy it codifies,
improperly expand the requirements of
176 with the governing statute. Here the language of the regulation is different from that of the statute and imposes an additional requirement. As discussed previously herein, the interpretation reflected in the regulation is without foundation and has been rejected as ultra vires.
To follow the course proposed by the majority abdicates our responsibility
as an administrative agency to interpret the statute which governs our adjudi-
cations, contrary to
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., supra
. In
INS v. Cardoza-Fonseca
,
Indeed, this Board, acknowledging the principle underlying the analysis in Cardoza-Fonseca , has stated: “It is a well-established rule of statutory con- struction 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 purpose- ful.” 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 control- ling hеre.
[11]
We have long recognized that the construction of administrative regulations calls into play
the same rules of interpretation as are applicable to the construction of statutes.
Matter of
Yeung,
13 I&N Dec. 528, 532 (BIA 1970). Like the Supreme Court, we too are bound to
assume that legislative purpose is expressed by the ordinary meaning of the words used in a
statute.
INS v. Cardoza-Fonseca, supra.
Administrative agencies may reverse long-standing agency policies by either
case-by-case adjudication or by rulemaking.
Rust v. Sullivan
,
B. It is Within Our Delegated Authority To Reinterpret The Law
and Modify or Overrule Our Precedents
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 con-
trary 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
relief. Thus, I would find that the Board’s authority is not “specifically lim-
ited,” as contemplated by
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 *22 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. Moreover, as noted by Board Member Villageliu, the regulation call- ing 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 pre- cedent 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 exer- cises 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 rеgulation is absolutely binding, its failure to men- tion 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 , 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 prece- dent, rather than merely to рassively 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 restate- ment of our own interpretation of the terms of the Act, and we find it neces- sary 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 *23 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 conclu-
sion that we are necessarily bound by
Section 212(c) of the Act requires that an alien be a lawful permanent resi- dent returning to a lawful unrelinquished domicile of at least 7 years for eligi- bility. 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
residence with lawful unrelinquished domicile and thereby imposes the addi-
tional requirement that the 7 years of lawful unrelinquished domicile must
follow the admission as a lawful permanent resident. In choosing this
approach the Board reaffirms
Matter of S-, supra
, by finding itself bound by
the language of
First of all, although our interpretation of “lawful unrelinquished domi-
cile” in
Matter of S-, supra
, may have been originally sound, it has been ren-
dered 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. 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 Sep-
tember 6, 1991, less than 7 years before his application for a section 212(c)
waiver 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
,
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). How-
ever, this Board is also bound by the statutes enacted by Congress.
See Mat-
ter of Valdovinos,
13 I&N Dec. 343 (BIA 1982), and cases cited therein.
Where a federal statute and a regulation conflict, the statute cоntrols. In fact
section 242(b) of the Act,
The regulations at
182
Interim Decision #3261
Attorney General with a clearer resolution of this issue. We have not in the
past hesitated to review the history and purpose of regulations that appear to
limit the jurisdiction of Immigration Judges in ways inconsistent with the
statutory scheme, noting that it is inappropriate to abdicate the resolution of
such important issues to the courts.
See Matter of Kwun
, 13 I&N Dec. 457,
464, 469-70 (BIA 1969, 1970). Moreover, our power to resolve legal issues
by adjudication, instead of rulemaking, has consistently been recognized.
See, e.g., Nunez-Pena v. INS,
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 lan-
guage of the regulation. Meanwhile, the mandate for an expeditious resolu-
tion of criminal alien cases will be seriously undermined by creating a class
of criminal aliens whose section 212(c) waiver applications are merely post-
poned by the majority’s refusal to timely decide these cases while the crimi-
nals are still imprisoned so that those ordered deported can be expeditiously
removed, and those granted relief from deportation can proceed to rehabili-
tate themselves without the limitations imposed on aliens whose deportation
*26
cases are pending.
See
section 242A of the Act,
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 inadmissibil-
ity 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 Gen- eral, 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
“alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)” is not eligible for a section 212(c) waiver. Although the Board held that this bar to relief applied only to applications filed after April 24, 1996, the Attorney General vacated the Board’s decision and held that the AEDPA amendment applied to cases pending on the date of its enact- ment. Matter of Soriano , 21 I&N Dec. 516 (BIA 1996; A.G. 1997).
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 ineligible for section 212(c) relief. Accordingly, the respon- dent’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 sec-
tion 212(c) of the Immigration and Nationality Act,
At that time, the Board’s interpretation that lawful domicile and perma-
nent residence must accumulate concurrently for purposes of section 212(c)
eligibility had been either rejected or questioned by a number of circuit courts
of appeals.
White v. INS,
As I discussed in my dissenting opinion in Matter of Cazares, supra , the regulation published by the Attorney General while Matter of Cazares and *28 this case were pending before her, suggests strongly that the Attorney Gen- eral wished to bring agency policy and practice into compliance with the rul- ings 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 8 U.S.C. 1229b(a)).
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 hear- ing. Typically, a procedural error, such as the erroneous denial of an For example, the Board’s interpretation has been criticized almost universally by those circuit courts of appeals which have considered the issue.
opportunity to apply for an asserted form of relief for which the respondent is
eligible, is cured by simply holding a new hearing “in compliance with due
process requirements,” as this remedy restores the wronged applicant to the
position in which he found himself prior to the procedural error.
Batanic v.
INS
,
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 respon-
dent of his right to apply for asylum, counsel’s ability to protect the respon-
dent’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 par-
ticular, “
when the procedural defect has also resulted in the loss of an oppor-
tunity for statutory relief
,” the demands of due process require more than
merely reconvening the hearing.
Id.
at 667 (emphasis added). When a viola-
tion of due process results in a denial of a fair hearing on the question of eligi-
bility 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
,
For these reasons I would remand the respondent’s case for consideration of his section 212(c) application nunc pro tunc.