Carrasco-Favela v. Immigration & Naturalization Service

• Decision Date: 28 November 1977
• Docket Number: CARRASCO-FAVEL,No. 77-1964,P,77-1964
• Citation: 563 F.2d 1220
• Parties: Heribertoetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1220

563 F.2d 1220

Heriberto CARRASCO-FAVELA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 77-1964

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

Nov. 28, 1977.

Wallace R. Heitman, Dallas, Tex., for petitioner.

Philip Wilens, Chief, Government Regulations and Labor Section, Criminal Division.

Robert Kendall, Jr., James P. Morris, Attys., Griffin B. Bell, U. S. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., for respondent.

Petition For Review Of An Order Of The Immigration And Naturalization Service (Texas Case).

Before BROWN, Chief Judge, RONEY and HILL, Circuit Judges.

PER CURIAM:

In 1975, an Immigration Judge ordered Carrasco-Favela to be deported to Mexico on the basis of his conviction for a narcotics offense. The Board of Immigration Appeals dismissed his appeal in 1977. On this petition for review of the dismissal, Carrasco-Favela contends that the Board wrongfully denied him relief from deportation under the statutory provision for permanent resident aliens with a lawful unrelinquished domicile of seven consecutive years in this country. We affirm the Board's decision. ¹

Petitioner, a native and citizen of Mexico, was admitted to the United States as a permanent resident in 1960. He remained in this country until 1970, when he returned to Mexico to live while continuing to work in the United States. In 1974, he was convicted in the United States District Court for the Western District of Texas for importing marijuana into the United States, in violation of 21 U.S.C. § 952(a), and was sentenced to five years of imprisonment. The Immigration and Naturalization Service (INS) then instituted deportation proceedings on the basis of the narcotics conviction under Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11). ² At a hearing held in November, 1975, shortly after his release on parole, petitioner requested that if he were found deportable under Section 241(a)(11), deportation should be waived under Section 212(c), 8 U.S.C. § 1182(c), which gives the agency discretion to allow certain deportable aliens advance permission to remain in this country:

(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)-(25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. ³

In an oral decision, the Immigration Judge ruled that Carrasco-Favela's conviction for a narcotics offense made him ineligible for relief under Section 212(c). The Board of Immigration Appeals reversed this ruling, but agreed with the Immigration Judge's alternative grounds for finding the petitioner deportable: (i) that the petitioner had relinquished his United States domicile from 1970 through 1974 by assuming the status of a commuter between this country and Mexico; and (ii) even if the petitioner had not thereby lost his statutory eligibility, he did not merit a favorable exercise of discretion. ⁴

Our review of the Board's denial of discretionary relief is narrow ⁵ in scope. Petitioner's first contention on appeal is that the Board erred in ruling that he became ineligible for relief by relinquishing his domicile in the United States. Whether petitioner abandoned this domicile when he returned to Mexico in 1970 is mainly a question of fact turning on petitioner's intent to remain indefinitely in Mexico or a lack of intent to make his home elsewhere. Mas v. Perry, 5 Cir., 1974, 489 F.2d 1396, cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70; Garner v. Pearson, M.D.Fla., 1973, 374 F.Supp. 580, 589-90. The Board applied the correct legal standard in weighing Carrasco-Favela's assertion that he did not intend to make Mexico his home against all the circumstances surrounding his change of residence. Hendry v. Masonite Corporation, 5 Cir., 1972, 455 F.2d 955, 956; C. Wright, 13 Fed.Prac. & Procedure, § 3612, at 716-20 (1975). Both the Immigration Judge and the Board concluded that when Carrasco-Favela returned to Mexico in 1970 to live with his wife, a native and citizen of that country, and commuted daily to work in El Paso, Texas for three of the four years preceding his 1974 arrest and incarceration, he intended to reside in Mexico indefinitely. We find that this interpretation of the facts is supported by substantial evidence in the record. ⁶

Petitioner's second contention is that the Board erred in affirming the Immigration Judge's decision that Carrasco-Favela did not merit a favorable exercise of discretion. Because we uphold the Board's determination that the petitioner was statutorily ineligible for relief, we need not reach this contention.

AFFIRMED.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 We are empowered to review "final orders of deportation," Immigration and Nationality Act § 106, 8 U.S.C. § 1105a (1970).

2 8 U.S.C. § 1251(a)(11) provides:

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

(11) . . . 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, or who has been convicted of a violation of, or a conspiracy to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the...