Pеtitioner Saeed Foroughi, an alien under a final order of deportation, seeks review of an order of the Board of Immigration Appeals denying his motion to reopen his deportation proceedings. Foroughi moved to reopen so that the Board could consider his application for discretionary relief under section 212(c) of the Immigration Act, 8 U.S.C. § 1182(c). To qualify for relief under that statute, Foroughi was required to have been a lawful permanent resident of this country for seven years. The Board held him ineligible because it concluded that his permanent residence status had ended, just short of seven years, when he conceded deportability at his depоrtation hearing and did not contest the finding of deportability on appeal to the Board.
Foroughi’s primary contention is that, even though he conceded deportability before the Immigration Judge, his appeal of the Immigration Judge’s denial of asylum and withholding of deportation constituted an uninterrupted challenge to the order of deportation during which he accrued credit toward the seven-year requirement of section 212(c). Because he passed the seven-year mark while his administrative appeal was pending, he contends that he became eligible for relief. We conclude that Foroughi is correct.
This case comes to us in an unusual posture. Foroughi, who entered this country lawfully as a visitor, was granted the status of a lawful permanent resident on March 1, 1985, by reason of his marriage to an American citizen. In 1986, Foroughi was convicted of conspiracy to possess cocaine with intent to distribute it. Later that year, the INS initiated deportation proceedings. While his deportation case was pending, Foroughi served a two-year prison term and successfully completed parole supervision in 1988. By all accounts, he achieved a remarkably complete rehabilitation. He received a bachelor’s degree in mechanical engineering in 1990. The federal judge who had sentenced Foroughi tо prison took the unusual step of writing to the Board of Immigration Appeals, describing Foroughi’s “dramatic and constructive adjustment in his personal life” and urging the Board to give serious consideration to granting him relief from deportation.
At his deportation hearing in January 1989, Foroughi admitted deportability because of his conviction, but sought both asylum under section 208(a), and withholding of deportation under section 243(h) of the Immigration Act, 8 U.S.C. §§ 1158(a) and 1253(h). The Immigration Judge denied both forms of relief and Foroughi appealed to the Board. On February 24, 1993, the Board dismissed his appeal, upholding on the merits the Immigration Judge’s denial of asylum and withholding of deportation. The Board also noted that no issue had beеn raised concerning Foroughi’s deportability, and found that For-oughi’s deportability had been established by clear, unequivocal, and convincing evidence. Foroughi did not petition this court for review of the Board’s order, and it thus became final.
On April 15, 1993, Foroughi filed a motion to reopen with the Board, seeking relief under section 212(c) of the Aсt, 8 U.S.C. § 1182(c). That section, as we have said, authorizes discretionary relief for aliens who have had a lawful unrelinquished domicile of seven years within this country. The Board denied the motion to reopen on the ground that Foroughi did not meet the seven-year eligibility requirement.
The unusual aspect of the Board’s decision is that the Board based its ruling on Ninth Circuit law that it viewed as divergent from the Board’s own rule concerning the point at which an alien in Foroughi’s position ceases to maintain a lawful permanent residence. As the Board stated:
In Matter of Lok, 18 I & N Dee. 101, 105 (BIA 1981), aff'd, Lok v. INS,681 F.2d 107 (2d Cir.1982), the Board held that an alien’s lawful permanent resident status terminates “when the Board renders its decision in the ease upon appeal оr certification or, where no appeal to the Board is taken, when appeal is waived or the time allotted for appeal has expired.”
In re Foroughi, No. A26 783 176, slip op. at 2-3 (Aug. 3, 1993) (quoting Lok). Accordingly, under the Board’s usual Lok rule, For-oughi’s lawful permanent resident status would have terminated on February 24,1993, *573 when the Board dismissed Foroughi’s appeal. Id. at 3, n. 2. That date is more than seven years after the commencement of Foroughi’s lawful permanеnt residence on March 1, 1985.
The Board concluded, however, that under Ninth Circuit law, Foroughi’s status as a lawful permanent resident ended on January 12, 1989, when he conceded deportability before the Immigration Judge and the Immigration Judge entered a finding of deporta-bility that Foroughi did not contest on appeal. Although we concede that sоme of this court’s prior statements might be interpreted to lend support to the Board’s interpretation of Ninth Circuit law, we conclude that the Board erred.
The key case is
Avila-Murrieta v. INS, 762
F.2d 733 (9th Cir.1985). To lay a groundwork for discussion of that case, however, we must begin with our earlier case of
Wall v. INS,
It was against this background that we decided Avila-Murrieta. Avila-Murrieta was a lawful permanent resident who had been found deportable and had appealed that finding to the Board. The Board rеjected his appeal and Avila-Murrieta did not then petition for review of the Board’s order. Avila-Murrieta subsequently filed a motion to reopen with the Board, seeking section 212(e) relief and reciting that he had fulfilled the seven-year requirement after the Board’s rejection of his appeal. The Board denied the motion to reоpen, and Avila-Murrieta then petitioned this court for review, more than a year after the Board had rejected his original appeal.
We held that Avila-Murrieta had failed to complete the requisite seven years. The ground upon which we did so is legitimately arguable, but we conclude that the crucial factor is that Avila-Murrieta hаd, prior to the requisite seven years, interrupted the period during which his residence was “a matter of law, not grace.”
Wall,
*574
Avila-Murrieta reached that position when his appeal was rejected by the Board and he did not petition for review. He had moved the Board to reopen, but such a motion does not automatically stay deportation. 8 C.F.R. § 3.8;
Berroteran-Melendez v. INS,
Under either, Avila-Murrieta would not have secured the seven years required by section 212(c). At the very least, an alien’s lawful domicile for purposes of section 212(c) relief terminates when the alien concedes his deportability and fails to challenge the merits of his deportation order. Although subsequently he may raise a challenge on the merits of that order following a denial of discretionary relief under section 212(c), ... the automatic stay of 8 U.S.C. § 1105a(a)(3), which was the basis of Wall’s holding, never comes into ;play until an appeal is raised. When an alien concedes his deportability оr fails to raise a challenge to an order of deportation, he may no longer be said to harbor a “lawful intent” to remain in this country even if the INS fails to take immediate steps to expel him beyond our borders.
Avila-Murrieta,
The INS argues, however, that Avila-Murrieta contains language to the effect that lawful permanent residence terminates when an alien concedes deportability and then does not, on his appeal to the Board, contest the finding of deportability. Perhaps the language that most favors the INS’s view is that quoted above which states that lawful domicile terminates when the alien “fails to challenge the merits of his deportation order.” Id., at 736.
There are two reasons why we reject this interpretation of Avilar-Murrieta. First, it is incоnsistent with the language later in the same passage that states that the alien loses lawful permanent residence “even if the INS fails to take immediate steps to expel him.” Id. As we have stated, aliens like Foroughi who concede deportability but contest on administrative appeal a denial of either discretionary relief or withholding of deportation by law cannot be deported pending that appeal, 8 C.F.R. § 3.6(a). That stay, unlike the stay of 8 U.S.C. § 1105(a)(3) that applies to judicial review of Board decisions, remains in effect throughout the time for filing an appeal, even though the appeal has not yet been filed. 8 C.F.R. § 3.6(a). Thus when a timely administrative appeal is taken, there has been no period of time during which the INS could be viewed as having failed to take steps to deport the alien.
That point leads us to the second, major reason for rejecting the INS’s position. When a request for discretionary relief is raised before the Immigration Judge, that judge’s ruling on the discretionary relief (and,
a fortiori,
his or her ruling on nondiscretionary withholding of deportation) is encompassed within the ruling on deportation.
Foti v. Immigration and Naturalization Service,
This reading of Avila-Murrieta harmonizes our rule regarding the termination of lawful resident status in this type of case with that of the Board in Matter of Lok. 2 When deportability is conceded, lawful permanent residence is terminated when the Board denies the appeal, or the time for administrative appeal runs out without an appeal having been filed. When an order of deportation is administratively final, it ends the accrual of lawful permanent residence time. In this type of case, where the merits of dеportability are not contested, the ending of permanent lawful residence coincides with the ending of an uninterrupted automatic stay of deportation.
It is true that, under
Matter of Lok,
the Board would have had another ground of denial of Foroughi’s claim of section 212(e) eligibility. The Board in
Lok
took the position (which we at first approved)
3
that, once the lawful permanent residence had ended (even whеn it had met the seven-year duration requirement), the alien became ineligible to apply for section 212(c) relief. Our court, however, has recently rejected that position in an en banc decision.
Butros v. INS,
We reject the contention of the INS that Butros supports its position regarding the point at which the seven year period ceases to accrue. Our statement that we have “no quarrel with Matter of Lok as it was affirmed and interpreted by the Second Circuit,” 4 id. at 1146, must be read with the rest of the same sentence, which makеs clear that we had no quarrel with the Second Circuit because “the case before us concern[ed] only the status of a petitioner ... acting under the Board’s own regulations and asking for reconsideration or reopening of his case.” And, in the very next sentence, we made clear that we were “not deciding when an alien ceases to accumulate credit toward seven years of lawful permanent residence.” Id.
We apply, therefore, the interpretation of
Avilar-Murrieta
that we espoused above: the lawful permanent resident status of an alien who concedes deportability continues while that alien pursues an administrative appeal of the denial of discretionary relief embodied in thе Immigration Judge’s deportation order. If the Board denies relief, the period of lawful domicile ends in such a case. Only where deportation is contested on the merits through a petition for judicial review does the period of lawful dom-
*576
idle continue during review in this court.
5
See Wall,
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.
Notes
. The Eleventh Circuit, which earlier took the view that lawful permanent residence ended with the INS’s issuance of an order to show cause,
Marti-Xiques v. INS,
. Our rule also avoids creating a false incentive to contest and appeal findings of deportability, solely for the purpose of keeping the seven-year clock running.
.
Gonzales v. INS,
. In the later case of
Vargas v. INS,
. We do not address the question of the effect of a petition for judicial review contesting the merits of deportability on the ground of commission of an aggravated felony, where the automatic stay is not in effect.
See Arthurs v. INS,