Praman CHIRAVACHARADHIKUL a.k.a. Praman Chiravacharadhijul, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 80-1479.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 2, 1981. Decided April 3, 1981.
Rehearing and Rehearing En Banc May 1, 1981.
I would reverse and direct a grant of the relief sought.
Frank J. Ceresi, Arlington, Va., for petitioner.
Daniel E. Fromstein, Criminal Division, Dept. of Justice, Washington, D. C. (James P. Morris, Gen. Litigation and Legal Advice Section, Criminal Division, Washington, D. C., on brief), for respondent.
Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WIDENER, Circuit Judge.
ALBERT V. BRYAN, Senior Circuit Judge:
Praman Chiravacharadhikul seeks review of the Board of Immigration Appeals’ (BIA) order denying him eligibility for the discretionary relief from deportation permitted under
Praman, a native of Thailand, came to the United States on December 4, 1968 under a student visa (an F-1).
On March 21, 1978 in the United States District Court for the District of Columbia, Praman was convicted of the unlawful distribution of a controlled substance and received a suspended sentence of confinement of one to five years.
As a result, on July 25, 1978 the District Director of the INS issued an order requiring Praman to appear before one of the judges and show cause why he should not be deported by reason of the criminal conviction.
On February 1, 1980 the Board of Immigration Appeals dismissed Praman‘s appeal from the decision of the Immigration Judge, it having concluded that:
Deportability has been established by clear, convincing and unequivocal evidence.
* * * * * *
The record establishes and we find that the respondent does not have the requisite period of continuous lawful unrelinquished domicile in the United States. See Matter of Newton, Interim Decision 2733 (BIA 1979) and cases cited therein. In any event, section 212(c) does not provide an indiscriminate waiver for all who demonstrate statutory eligibility for such relief. Even if the respondent were eligible, we would not grant him section 212(c) relief in view of his involvement in distributing cocaine. Accordingly, the appeal will be dismissed.
Before the Immigration Judge, Praman conceded that deportability was established by his conviction.
The BIA originally construed
In view of the plain language of section 212(c) of the Immigration and Nationality Act ... together with the review of the historical background of the legislation, we come to the conclusion that this provision of law is available only to those lawfully resident aliens who are returning to an unrelinquished domicile of 7 consecutive years subsequent to a lawful entry. In other words, we construe the section to mean that the alien must not only have been lawfully admitted for permanent residence but must have resided in this country for 7 consecutive years subsequent to such lawful admission for permanent residence; and that not only the admission must be lawful but that the period of residence must be lawful.
Id. at 118 (accent added).
The soundness of this ratio decidendi was confirmed by the Ninth Circuit in an almost identical factual milieu in Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979). Its determination was that reached by the BIA in the review now before us. While recognizing the issue as difficult of resolution, the Court nevertheless decided it with its own reasoning and citation:
We are left with an ambiguous provision with little legislative history to clarify how Congress intended it to be applied. The INS, the agency charged with interpreting the immigration laws, first interpreted
§ 1182(c) in 1953 and has adhered to its position for 26 years. We stated in Baur v. Mathews, 578 F.2d 228, 233 (9th Cir. 1978):The administrative agency clothed with responsibility for implementing congressional pronouncements is generally well acquainted with the policy of the statute it administers. This is particularly true when the agency has long been involved in the construction and administration of a given statute or its predecessors. Where, as here, the agency has extensive experience, has relied on the common meaning of the relevant statute‘s specific language, and can point to important congressional purposes furthered by its interpretation, only a clear showing of a contrary intent by Congress will justify overruling the agency‘s regulations.
See also DHL Corp. v. C.A.B., 584 F.2d 914, 919-20 (9th Cir. 1978); Nazareno v. Attorney General of the United States, 168 U.S.App.D.C. 22, 26, 512 F.2d 936, 940 (1975).
601 F.2d at 465 (accent added) (footnotes omitted).
Castillo-Felix acknowledges the force of the contrary view of Lok v. INS, 548 F.2d 37 (2d Cir. 1977) but rejects its adoption as precedent for the interpretation of
We find that the origins of the language now in section 212(c), along with the clear legislative intent in 1952 to restrict the scope of the seventh proviso, support the conclusion that such relief was intended to be available only to aliens acquiring seven years of domicile after their entry for permanent residence.
We follow the admonition so plainly written in Udall, Secretary of the Interior v. Tallman, et al., 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1964) that:
When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. “To sustain the Commission‘s application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” Unemployment Comm‘n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136. See also, e. g., Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Universal Battery Co. v. United States, 281 U.S. 580, 583, 50 S.Ct. 422, 423, 74 L.Ed. 1051.
Here as the BIA‘s interpretation of the statutory section is neither inconsistent nor unjustified, we uphold the Board‘s construction which, in its estimation, will better serve the legislative intent and purpose.
Affirmed.
HAYNSWORTH, Chief Judge, dissenting:
I respectfully dissent.
The statute1 provides for eligibility for the exercise by the Attorney General of his discretion if the returning alien (1) is “admitted for permanent residence,” and (2) is “returning to a lawful unrelinquished domicile of seven consecutive years.” The statute is now consistently applied to deportation cases so that the requisites for eligibility are that an alien shall have been admitted for permanent residence and that he have a lawful unrelinquished domicile of seven consecutive years. This petitioner clearly meets both branches of the test.
If his presence in this country had been unlawful at any time, we might be confronted with a question whether, during that time, he could have a lawful domicile. There might be some question of whether he could acquire domiciliary status at all if he was here on some temporary permit, as that issued to students. In 1970, however, he had been classified as a non-immigrant employee of a foreign government. As such, he could lawfully remain indefinitely. See Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614. There was no impediment to his establishment of an entirely lawful domicile, which he did. It had been maintained for more than seven years, though his change in status from that of an employee of a foreign embassy to an immigrant for permanent residence occurred less than seven years ago. There is no ambiguity in the application of the statute to him. Hence, in this case we are not met with the possibly troublesome problems which confronted the Second and Ninth Circuits in Lok v. INS, 548 F.2d 37 (2d Cir. 1977), and Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979).
Even if we were met with those problems, I would come out as the Second Circuit did. I think Judge Kaufman, writing for a panel composed of himself, Judge Friendly and Judge Oakes, persuasively demonstrated that there is no ambiguity in the statute occasioning extreme deference to administrative interpretation. Moreover, there are no practical problems or policy considerations supporting the administrative interpretation, as the dissenting opinion of Judge Takasugi in Castillo-Felix demonstrates.
The Congress in 1950 considered language which would require the result reached by the majority, but the Congress did not adopt that language. The language it did adopt in 1952 seems to me inconsistent with the subsequent administrative in-
The question before us is not whether the petitioner should be deported. The statute, as I interpret it, simply means that his case should be submitted to the Attorney General of the United States who, after considering all factors, would be free to exercise his discretion as to whether or not the petitioner should be deported.