Foroughi v. I.N.S., 93-70718

• Citation: 60 F.3d 570
• Decision Date: 13 July 1995
• Docket Number: No. 93-70718,93-70718
• Parties: 95 Cal. Daily Op. Serv. 5424, 95 Daily Journal D.A.R. 9252 Saeed FOROUGHI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 570

60 F.3d 570

95 Cal. Daily Op. Serv. 5424, 95 Daily Journal

D.A.R. 9252

Saeed FOROUGHI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-70718.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1995.

Decided July 13, 1995.

Peter A. Schey, Center for Human Rights and Constitutional Law, Los Angeles, CA, for petitioner.

David R. McConnell, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: CANBY and NOONAN, Circuit Judges and SAMUEL P. KING, ^* District Judge.

CANBY, Circuit Judge:

Petitioner 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. Sec. 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 deportation 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 to 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. Secs. 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 been raised concerning Foroughi's deportability, and found that Foroughi'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 Act, 8 U.S.C. Sec. 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 Dec. 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 case upon appeal or 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, Foroughi's lawful permanent resident status would have terminated on February 24, 1993 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 permanent 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 deportability that Foroughi did not contest on appeal. Although we concede that some 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, 722 F.2d 1442 (9th Cir.1984). In Wall, the alien had contested deportability and appealed the adverse decision of the Immigration Judge to the Board. The Board denied relief and Wall petitioned this court for review of the Board's decision. While that petition was pending, Wall filed a motion to reopen with the Board, seeking relief under section 212(c) on the ground that he had reached seven years of lawful permanent residence while his petition was pending in this court. The Board denied relief on the ground that Wall's lawful permanent residence terminated with its order denying Wall's appeal. Wall then petitioned this court for review of the denial of the motion to reopen, and we consolidated the two petitions. In addressing Wall's 212(c) eligibility, we acknowledged that there were inconsistent decisions in other circuits with regard to whether appeals of discretionary relief extended the period of lawful permanent residence. Id. at 1444. We stated that it was unnecessary to resolve that question, however, because Wall had contested his deportability all the way to this court. There was accordingly an automatic stay of deportation in effect, 8 U.S.C. Sec. 1105a(a)(3), and thus Wall's "continued presence in the United States after the administrative adjudication of deportability was a matter of law, not grace." Id. We did not refer to the fact that the automatic stay pending judicial review of an order of deportation does not arise until a petition for review is filed. 8 U.S.C. Sec. 1105a(a)(7); see Saadi v. INS, 912 F.2d 428, 428 (10th Cir.1990); Umanzor v. Lambert, 782 F.2d 1299, 1303 (5th Cir.1986). In any event, we overlooked any gap that may have occurred in the stay between the date of the Board's decision and the filing of the petition for review; the gap, if noticed, was apparently tolerated where the petitioner contested the merits of his deportation order in this court. We did not rule upon the question "whether Wall would be eligible for [section 212(c) ] relief if this case presented only a petition for review of the discretionary denial of deferred action status." Wall, 722 F.2d at 1444-45.

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 rejected 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(c) 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 reopen, 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 had, prior to the requisite seven years, interrupted the period during which his residence was "a matter of law, not grace." Wall, 722 F.2d at 1444. Of course, there had been an interruption in Wall, but it was repaired by a timely petition for review that contested the merits of the deportation order. Avila-Murrieta had neither sought timely review nor contested the merits of his deportation order in this court. Avila-Murrieta's lawful domicile ended, then, as soon as his residence was terminable at the will of the INS.

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. Sec. 3.8; Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). Any stay or forbearance that was granted Avila-Murrieta while he petitioned for review was therefore a matter of grace. It is true that, after his motion to reopen was denied, Avila-Murrieta petitioned this court for review, not only of that denial, but of his deportation order. The interruption, however, was fatal. As we pointed out, we did not need to take sides on...