Jaramillo v. I.N.S.

Decision Date14 September 1993
Docket NumberNo. 92-4332,92-4332
Citation1 F.3d 1149
PartiesOswaldo JARAMILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE and The Executive Office For Immigration Review, Respondents.
CourtU.S. Court of Appeals — Eleventh Circuit

Ira J. Kurzban, Helena Tetzeli, Kurzban Kurzban & Weinger, P.A., Miami, FL, for petitioner.

Donald A. Couvillon, Richard M. Evans, Donald E. Keener, Robert Kendall, Jr., OIL, Civ. Div. Dept. of Justice, Washington, DC, for respondents.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, and CARNES, Circuit Judges.

CARNES, Circuit Judge:

This appeal involves Sec. 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1182(c), which authorizes the Attorney General to grant an otherwise deportable alien discretionary relief from deportation, but only if the alien's period of lawful unrelinquished domicile in this country is seven years or more. The Attorney General has delegated that authority to Immigration Judges, whose decisions are reviewed by the Board of Immigration Appeals ("the Board"). See 8 C.F.R. Secs. 212.3(e), 3.1(b)(2). The Board in this case held that Oswaldo Jaramillo was ineligible to be considered for Sec. 212(c) relief, because he did not meet the seven-year lawful unrelinquished domicile requirement. Jaramillo concedes that he is deportable but seeks review of the Board's holding that he did not meet the seven-year requirement for discretionary relief consideration.

The issue presented is at what point during deportation proceedings the status of an alien lawfully admitted for permanent residence ends so that the alien is no longer accruing lawful unrelinquished domicile time for Sec. 212(c) purposes. Giving deference to the interpretation of the statute by the Board and aligning ourselves with two other circuit courts of appeal that have addressed the issue, we hold that the point during the deportation process at which a resident alien's lawful domicile ends for Sec. 212(c) purposes is when the deportation order becomes administratively final. That will be the date the Board renders its decision on appeal or certification, or the date an appeal is waived, or the date that time for appeal expires with none taken. Because Jaramillo had accrued seven years of lawful unrelinquished domicile before the order of deportation became administratively final, we reverse the Board's decision that he is not entitled to be considered for Sec. 212(c) relief.

BACKGROUND

Oswaldo Jaramillo, a citizen of Colombia, entered the United States as a lawful permanent resident in 1974. He was convicted in 1976 of conspiracy to import cocaine and served a sentence of one year and one day followed by a probationary period. Jaramillo's conviction rendered him subject to deportation. 8 U.S.C. Sec. 1251(a)(11) (1970). In 1979, when Jaramillo had been a lawful permanent resident of the United States for five years, the INS began deportation proceedings against him by issuing a show cause order. That order was mailed to Jaramillo, but was returned to the INS as undeliverable by the postal service. Nothing happened about the show cause order until Jaramillo, unaware that the INS was seeking to deport At the deportation hearing, Jaramillo informed the Immigration Judge of his intention to seek relief under INA Sec. 212(c), and he filed a timely application for relief under that section, which provides:

him, sought naturalization. During the course of naturalization proceedings, the show cause order was discovered in 1984. As a result of that discovery, a deportation hearing was scheduled. The INS did not serve Jaramillo with the show cause order until he appeared for his deportation hearing in 1984, by which time he had been a lawful permanent resident of this country for ten years.

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 ....

8 U.S.C. Sec. 1182(c). Under case law, discretionary relief under Sec. 212(c) has been extended to resident aliens. E.g., Melian v. INS, 987 F.2d 1521, 1523 (11th Cir.1993); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976). The INS does not question that extension in this case.

The Attorney General is responsible for the administration of laws concerning immigration and naturalization, including the adoption of necessary regulations, and has delegated those responsibilities to the Commissioner of the INS. 8 U.S.C. Sec. 1103(a), (b); 8 C.F.R. Sec. 2.1. Immigration Judges conduct hearings on show cause orders in deportation proceedings, see 8 C.F.R. Secs. 3.10, 242.8(a), and the Board of Immigration Appeals has appellate jurisdiction over decisions by Immigration Judges, id. Sec. 3.1(b)(2). A deportation order issued by an Immigration Judge becomes final upon decision of the appeal by the Board, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken. Id. Sec. 243.1. The Board's decision is administratively final, but review by the United States Circuit Court of Appeals may be sought by petition. See 8 U.S.C. Sec. 1105a.

In In re Lok, 18 I. & N. Dec. 101, 107 (BIA 1981), aff'd, Lok v. INS, 681 F.2d 107 (2d Cir.1982), the Board adopted as its official interpretation of Sec. 212(c), a construction under which an alien's period of lawful unrelinquished domicile terminates only upon entry of an administratively final order of deportation. Under the Board's Lok rule, Jaramillo would be eligible for consideration for Sec. 212(c) discretionary relief, because his order of deportation did not become final until 1992, eighteen years after he had become a permanent resident. Indeed, at the time Jaramillo applied for Sec. 212(c) relief in 1984, the order of deportation had not become final and he had already been a permanent resident for more than the requisite seven years. Jaramillo would not be eligible for Sec. 212(c) relief if issuance of the show cause order itself served to stop the running of the lawful domicile period, because the order was issued before he had been a resident for seven years. That was the eventual holding of the Board in this case, which felt compelled in cases within this circuit to yield its interpretation of the statute in the face of two contrary decisions of this Court: Marti-Xiques v. INS, 741 F.2d 350 (11th Cir.1984), and Ballbe v. INS, 886 F.2d 306 (11th Cir.1989), cert. denied, 495 U.S. 929, 110 S.Ct. 2166, 109 L.Ed.2d 496 (1990).

After the Board had announced in Lok that accrual of lawful residency did not stop until the deportation order became administratively final, this Court decided Marti-Xiques. In that case, we rejected the Board's Lok interpretation and adopted, instead, the date the show cause order is issued as the cutoff date for accrual of lawful domicile for Sec. 212(c) purposes. Marti-Xiques, 741 F.2d at 354-55. 1

The INS persuaded the Immigration Judge that because this case arose in the Eleventh Circuit, Marti-Xiques required After the Board reversed and remanded this case to the Immigration Judge, we decided Ballbe v. INS, which reiterated and clarified the rule of law set forth in Marti-Xiques. We held in Ballbe that the date lawful residency ceases to accrue for Sec. 212(c) purposes is the date that the show cause order is issued, not the date it is served. 886 F.2d at 309. The INS then used our Ballbe decision to argue before the Immigration Judge in this case that notwithstanding the Board's mistaken reading of Marti-Xiques, it was now clear that for Sec. 212(c) purposes issuance of the show cause order was the crucial date in deportation proceedings undertaken in the Eleventh Circuit. Under that rule, Jaramillo was ineligible for Sec. 212(c) relief because at the time the show cause order was issued, he had been in the United States as a lawful permanent resident for only five years. The Immigration Judge agreed with the INS, and applied Ballbe to preclude consideration of the merits of Jaramillo's previously filed Sec. 212(c) application. The Board, in light of Ballbe, upheld the Immigration Judge's decision and dismissed the appeal. Jaramillo petitioned for review by this Court.

that the cutoff date be the issuance of the show cause order, notwithstanding the Board's different interpretation of the statute. The Immigration Judge held Jaramillo ineligible for Sec. 212(c) relief solely because of the Marti-Xiques decision. Jaramillo appealed to the Board, which reversed. The Board interpreted Marti-Xiques as establishing that the commencement of deportation proceedings is the event which stops accrual of lawful residency time, and the Board held that under regulations in effect at the time of the Marti-Xiques decision, deportation proceedings did not commence until the show cause order was served as well as issued. See 8 C.F.R. Sec. 242.1(a) (1984). Because service did not occur in this case until after Jaramillo had been a lawful resident for more than seven years, the Board concluded that he was eligible for Sec. 212(c) consideration.

The INS succeeded in convincing the Immigration Judge and the Board to apply our Marti-Xiques and Ballbe decisions to deny consideration of Jaramillo's Sec. 212(c) application. Nonetheless, the INS has now acquiesced in Jaramillo's suggestion for hearing en banc in this case, 989 F.2d 1117, and has informed this Court that it agrees that we should defer to the Board's interpretation of Sec. 212(c) and overrule our two contrary decisions. This change in position by the INS, coupled with the existence of an intercircuit conflict between the Fifth and Seventh Circuits' holdings on the issue and ours in Marti-Xiques and Ballbe, prompted us to hear this...

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