Castillo-Felix v. Immigration & Naturalization Service

• Decision Date: 30 July 1979
• Docket Number: P,No. 78-1445,CASTILLO-FELI,78-1445
• Citation: 601 F.2d 459
• Parties: Bautistaetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 459

601 F.2d 459

Bautista CASTILLO-FELIX, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 78-1445.

United States Court of Appeals, Ninth Circuit.

July 30, 1979.

Dennis W. Eller (argued), Puget Sound Legal Asst. Foundation, Tacoma, Wash., for petitioner.

Philip Wilens, Dept. of Justice, Eric A. Fisher (argued), Crim. Div. No. 838, Washington, D. C., for respondent.

On Petition to Review a Decision of the United States Immigration & Naturalization Service.

Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

Castillo-Felix petitions for review of a Board of Immigration Appeals (BIA) order denying him discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1976). He asserts that the Board incorrectly interpreted the statutory phrase "lawful unrelinquished domicile." We affirm.

FACTS

Petitioner, a citizen and native of Mexico, illegally entered this country in 1963. Shortly thereafter, he commenced a common law relationship with a woman alien who had been admitted for permanent residence. ¹ They now have five children, all born in the United States.

Petitioner was apprehended by the Immigration and Naturalization Service (INS) in November, 1969, and was given leave to depart voluntarily, at government expense, in lieu of deportation. 8 U.S.C. § 1252(g) (1976). He left the country for one day, then illegally returned.

In October 1970, petitioner married his common law wife. He was apprehended the same year and again was granted voluntary departure, this time at his own expense. He remained in this country, however, because the INS proceeded to grant him a series of extensions of his voluntary departure date pending his receipt of a permanent resident visa. The visa was granted and he lawfully entered this country on April 7, 1972.

In August of 1975, petitioner was convicted of knowingly inducing the entry of two illegal aliens into the United States. 8 U.S.C. § 1324(a)(4) (1976). ² He began serving two consecutive three-year terms ³ and the INS commenced deportation proceedings.

In those proceedings, petitioner conceded deportability but applied for discretionary relief under § 1182(c). In June of 1977, the Immigration Judge denied the requested relief because petitioner had not been continuously domiciled in this country for seven years subsequent to his admission for permanent residence in 1972. The judge added that, even if petitioner had met the domicile requirement, he would exercise his discretion to deny relief. ⁴

The BIA affirmed the judge's decision on the statutory ineligibility ground alone. It

declined to address whether the Immigration Judge could have properly exercised his discretion to deny relief.

DISCUSSION

Aliens who seek admission may be excluded if they fall within any of the categories enumerated in 8 U.S.C. § 1182(a). Section 1182(c) waives the exclusion provisions for certain aliens with established roots in this country. It provides in pertinent part:

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.

8 U.S.C. § 1182(c) (1976). Although originally applicable only to exclusion proceedings, § 1182(c) has been extended to deportation proceedings when deportees meet the requirements of the statute. ⁵

According to the literal language of this provision, it applies only to aliens who are (1) "lawfully admitted for permanent residence," (2) returning to a "lawful unrelinquished domicile of seven consecutive years," and who (3) "temporarily proceeded abroad voluntarily and not under an order of deportation."

Petitioner concededly meets the first requirement. He was lawfully admitted for permanent residence in 1972. The third requirement, actual departure, was not addressed below, and we cannot reach it here. ⁶ The BIA found petitioner ineligible for relief because he failed to meet the second requirement, returning to a lawful unrelinquished domicile of seven consecutive years.

LAWFUL UNRELINQUISHED DOMICILE:

The INS maintains that an alien cannot be lawfully domiciled in this country unless "lawfully admitted for permanent residence." It has consistently applied § 1182(c) only to aliens domiciled in this country for seven or more years After their admission for permanent residence. Matter of Anwo, Interim Decision # 2604 (BIA 1977), Affirmed sub nom. Anwo v. INS, --- U.S.App.D.C. ---, --- F.2d ----, No. 77-1879 (D.C.Cir. June 19, 1979); ⁷ Matter of S, 5 I&N Dec. 116 (BIA 1953).

Petitioner argues that aliens may be lawfully domiciled in this country without having been admitted for permanent residence. In his view, because admission for permanent residence is separate from the lawful domicile requirement, aliens who have lived here lawfully for seven or more consecutive years can obtain § 1182(c) relief, regardless of when they were admitted for permanent residence.

He relies primarily on Lok v. INS, 548 F.2d 37 (2d Cir. 1977), in which the Second Circuit rejected the INS interpretation of § 1182(c). The INS argues that Lok was wrongly decided.

The Lok court first examined the language of § 1182(c). It noted that "admission for permanent residence" is carefully defined, ⁸ but "lawful unrelinquished domicile" is not defined anywhere in the Act. It also noted that some nonimmigrant aliens may be lawfully domiciled in this country without having been admitted for permanent residence. From these facts, it reasoned that lawful domicile could not be equated with admission for permanent residence.

The court then examined the legislative history of § 1182(c), which is an amended version of the 7th Proviso to § 3 of the Immigration Act of 1917. That Proviso reads:

(A)liens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe:

Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 878.

The 7th Proviso gave the Secretary virtually unfettered discretion to grant relief to long-time resident aliens returning to the United States after a temporary absence. In the amended version, § 1182(c), Congress clearly limited that discretion by adding new requirements: that the aliens be (1) lawfully admitted for permanent residence, and (2) returning to a Lawful unrelinquished domicile of seven consecutive years.

The Lok court concluded that Congress did not intend the seven years of lawful domicile to follow admission for permanent residence. The court noted that the Senate Judiciary Committee apparently rejected a version of § 1182(c) which would have explicitly required accumulation of the seven years of domicile after admission for permanent residence. ⁹ It also pointed to other provisions of the act in which Congress clearly expressed its intention that a period of domicile follow admission for permanent residence, E. g., 8 U.S.C. §§ 1427(a)(1), 1430(a) (1976), and reasoned that Congress would have done so here, had it intended that result.

The Lok court acknowledged that interpretations of an Act by the agency responsible for administering it are usually accorded great deference, citing Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Nevertheless, it reversed the agency, impelled by a

heavy responsibility to set aside administrative decisions that are inconsistent with a statutory mandate or which frustrate the congressional policy underlying legislation, See N. L. R. B. v. Brown, 380 U.S. 278, 290-92, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965).

548 F.2d at 40. We cannot agree that the INS interpretation of § 1182(c) is "inconsistent with a statutory mandate or . . . frustrate(s) the congressional policy" behind this legislation.

The statutory mandate in § 1182(c) is ambiguous. The language of the section could support either the INS interpretation or that adopted in Lok. The fact that the phrase "lawfully admitted for permanent residence" is carefully defined elsewhere in the act does not negate the possibility that Congress intended to establish permanent resident status as the prerequisite for "lawful" domicile.

Similarly, the fact that a small group of nonimmigrants could conceivably qualify as "lawfully" domiciled within this country without acquiring permanent resident status does not persuade us that "lawful" should be defined without reference to the phrase "lawfully admitted for permanent residence."

We emphasize first that most nonimmigrants must have a residence in a foreign country which they do not intend to abandon, or must be here for a temporary purpose, or both. ¹⁰ To establish domicile, ¹¹ aliens must not only be physically present here, but must intend to remain. If aliens are here for a temporary purpose, they cannot establish domicile. Conversely, if they intend to stay, they violate the terms of their admission and are no longer here lawfully. See Anwo v. INS, --- U.S.App.D.C. ---, --- F.2d ----, No. 77-1879, slip op. at 6-7 and n.8 (D.C.Cir. June 19, 1979), quoting Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 1349, 55 L.Ed.2d 614 (1978).

The INS concedes that a small group of nonimmigrants including diplomats, foreign government representatives and their retinues, treaty traders, and media representatives, ¹² are not required to maintain a foreign residence, and may be here for other than temporary purposes.

It is not reasonable to conclude, however, that by using the term "lawful unrelinquished domicile" in the same statute with the phrase "lawfully admitted for permanent residence," Congress intended to benefit only this...