Francis v. Immigration and Naturalization Service

• Decision Date: 09 March 1976
• Docket Number: No. 610,D,610
• Citation: 532 F.2d 268
• Parties: Ernest FRANCIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 74-2245.
• Court: U.S. Court of Appeals — Second Circuit

Page 268

532 F.2d 268

Ernest FRANCIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 610, Docket 74-2245.

United States Court of Appeals Second Circuit.

Argued Jan. 15, 1976.

Decided March 9, 1976.

Janet M. Calvo, The Legal Aid Society, New York City (Kalman Finkel, Morton B. Dicker, Julius C. Biervliet, Civ. Div., The Legal Aid Society, New York City, and John E. Kirklin, Civil Appeals Bureau, The Legal Aid Society, New York City, on the brief), for petitioner.

Thomas H. Belote, Special Asst. U. S. Atty., New York City (Thomas J. Cahill, U. S. Atty., S. D. N. Y. and Mary P. Maguire, Special Asst. U. S. Atty., New York City, on the brief), for respondent.

Before LUMBARD, SMITH and MANSFIELD, Circuit Judges.

LUMBARD, Circuit Judge:

The Board of Immigration Appeals entered a final order of deportation against Ernest Francis, petitioner, on August 14, 1974. The basis for the order is petitioner's conviction of a marijuana offense. Ernest Francis seeks review of that order pursuant to Section 106 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a, claiming that he is entitled to apply for the discretion of the Attorney General to permit him to remain in this country.

Under present Board interpretations, a lawfully admitted alien, convicted of a narcotics offense, who departs from and returns to the United States to an unrelinquished domicile of seven years may be permitted to remain in this country in the Attorney General's discretion. On the other hand, the Attorney General is without discretion to allow petitioner, a lawfully admitted alien convicted of a narcotics offense, to remain in the United States despite an unrelinquished domicile of more than seven years solely because he has never made a temporary departure from this country since the time of his conviction. Petitioner contends that the distinction between these two classes of aliens lacks any basis rationally related to a legitimate governmental interest, and therefore, deprives him of the equal protection of the law. We agree, and, accordingly grant the petition and remand so that the Attorney General may exercise his discretion in this proceeding.

Ernest Francis was admitted to this country as a permanent resident on September 8, 1961. Mr. Francis, a citizen and native of Jamaica, West Indies, is 55 years old, married and the father of a nine year old daughter. He is presently employed as a handyman and resides with his family in the Bronx. Petitioner's wife and daughter are citizens of the United States. His three brothers and one sister are also citizens. Petitioner's father, Joseph Francis, was, at the time of his death, a citizen of this country.

On October 20, 1971, following a plea of guilty, petitioner was convicted of criminal possession of dangerous drugs (marijuana), N.Y. Penal Law § 220.05 (McKinney's 1967). ¹ He was sentenced to a term of probation by the Supreme Court, Bronx County on December 14, 1971. Apart from this conviction and a twenty-five dollar fine for gambling in September, 1973, petitioner has no criminal record.

The Immigration and Naturalization Service ("INS") instituted a deportation proceeding against petitioner on December 6, 1972 by issuing an order to show cause and notice of hearing. The INS charged him with being deportable under Section 241(a)(11) of the INA, 8 U.S.C. § 1251(a)(11) by reason of the marijuana conviction. In pertinent part, the section provides that

Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General be deported who

(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana . . . .

Francis did not, and does not now, dispute his deportability under Section 241(a)(11). Rather, he argues that he was eligible for discretionary relief under Section 212(c) of the INA, 8 U.S.C. § 1182(c), a provision which is primarily applicable to exclusion proceedings. The section provides that

(c) 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 paragraphs (1) through (25) and paragraph (30) of subsection (a). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under Section 211(b). ²

On February 20, 1974, in an oral decision, the Immigration judge held that Section 212(c) consideration was not available and ordered petitioner deported. Petitioner appealed that decision to the Board on February 28, 1974. On August 15, 1974, the Board dismissed the appeal holding that petitioner was ineligible "for any form of discretionary relief from deportation."

Petitioner seeks a declaration from this court that he is eligible to apply to the Attorney General for discretionary relief under Section 212(c).

A brief review of the background of Section 212(c), as it is presently interpreted, is essential to an understanding of petitioner's claims. The section has its origins in the Seventh Proviso to Section 3 of the Immigration Act of 1917, 39 Stat. 874, which reads in part:

That aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General, and upon such conditions as he may prescribe.

The Proviso was originally intended to apply to exclusion proceedings which are conducted at the time of border entry into the United States.

The first significant expansion of the Seventh Proviso occurred in Matter of L, 1 I. & N. Dec. 1 (1940). There the Board held that the Proviso was not limited to exclusion proceedings but was exercisable in a deportation proceeding where the alien had departed and returned to this country subsequent to the time the ground for deportation arose. The exercise of discretion in the deportation proceedings was deemed a nunc pro tunc correction of the record of reentry. In approving this construction, the Attorney General concluded that strictly limiting the Seventh Proviso to exclusion proceedings would be "capricious and whimsical." Id. at 5.

This interpretation was further expanded in Matter of A, 2 I. & N. Dec. 459 (1946), approved by Atty. Gen. (1947). There the Board held that the mere fact that the alien had not reentered the country following his conviction was not a bar to the exercise of discretionary relief in a deportation proceeding. Under this interpretation, the petitioner in this action would have been eligible for discretionary review.

With the passage of the Immigration and Naturalization Act of 1952, the Seventh Proviso was replaced by Section 212(c). The 1952 provision requires the alien to have been admitted for permanent residence and the temporary departure to be "voluntary and not under an order of deportation . . . ." Like the Seventh Proviso, Section 212(c) is facially limited to exclusion proceedings.

In 1956, the Board was required to decide whether the new provision could be applied in certain deportation proceedings. In Matter of G. A., 7 I. & N. 274 Dec. (1956), the respondent, a citizen of Mexico, had entered the country as a permanent resident alien in 1913. In 1947 he was convicted of a marijuana offense. Deportation proceedings were not brought against him until 1956. Relying on its pre-amendment decision in Matter of L, 1 I. & N. Dec. 1 (1940), supra, the Board concluded that respondent was eligible for Section 212(c) consideration by reason of a temporary absence from the United States in 1952. The Board reasoned that since respondent would have been eligible for Section 212(c), relief at the time he reentered the country, it could be granted at this later juncture. The exercise of Section 212(c) discretion would, if the ruling were favorable to the alien, preclude deportation.

Section 212(c) has also been extended to deportation proceedings where an alien has requested an adjustment of status under Section 245, 8 U.S.C. § 1255, Matter of Smith, 11 I. & N. Dec. 325 (1965). The Board reasoned that since the Section 245 application subjected the alien to all bases for exclusion, 8 U.S.C. § 1255, there is "no valid reason for denying him the benefits of Section 212(c) on the technical ground that he is not returning to the United States after a voluntary departure." Id. at 327. ³

The statutory interpretation which this petitioner complains of derives from the decision in Matter of Arias-Uribe, 13 I. & N. Dec. 696 (1971). There the Board declined to extend Section 212(c) to an otherwise eligible alien who had not departed the country since his narcotics conviction. Since the alien, like this petitioner was a native of the Western Hemisphere, he was ineligible for an adjustment of status under Section 245 and, therefore, the Smith case was not applicable. In denying Section 212(c) treatment to the alien, the Board seized upon the change in language between the Seventh Proviso, which required that the alien be "returning (to the United States) after a temporary absence", and Section 212(c), which requires that the alien have "temporarily proceeded abroad voluntarily and not under an order of deportation." The Board viewed this as meaning that Congress intended by this clause to require an actual departure and return to this country. ⁴ 13 I. & N. Dec. at 700. In a brief per curiam opinion, the Ninth Circuit affirmed this construction of the statute. Arias-Uribe v. INS, 466 F.2d 1198 (1972). See also Dunn v. INS, 499 F.2d 856, 858 (9th Cir. 1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975). Although...