Francis v. Immigration and Naturalization Service, No. 610

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore LUMBARD, SMITH and MANSFIELD; LUMBARD
Citation532 F.2d 268
Docket NumberNo. 610,D
Decision Date09 March 1976
PartiesErnest FRANCIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 74-2245.

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.

Page 269

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 . . . .

Page 270

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

Page 271

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...

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308 practice notes
  • Abebe v. Mukasey, No. 05-76201.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 20, 2008
    ...F.3d 790 from inadmissibility3 — not deportation. See 8 U.S.C. § 1182(c) (repealed 1996). Tapia-Acuna, though, followed Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976), and held that equal protection required us to extend section 212(c) relief to aliens facing deportation — if such aliens w......
  • Jankowski v. I.N.S., No. Civ.A.3:00-CV2402JCH.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 12, 2001
    ...deportable" and this "distinction is not rationally related to any legitimate purpose of the statute." Francis v. INS, 532 F.2d 268, 272 (2d Page 279 Under the Second Circuit's interpretation of the relevant statutory scheme in Francis, "an alien who had been convicted o......
  • Leal-Rodriguez v. I.N.S., LEAL-RODRIGUE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 19, 1993
    ...statute," the Second Circuit in 1976 struck it down as violative of the Due Process Clause of the Fifth Amendment. Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976). The BIA subsequently adopted this reasoning in Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976), and extended section 21......
  • Jankowski v. Immigration and Naturalization Service, Civil Action No. 3:00-CV-2402 (JCH) (D. Conn. 4/12/2001), Civil Action No. 3:00-CV-2402 (JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 12, 2001
    ...deportable" and this "distinction is not rationally related to any legitimate purpose of the statute." Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976). Under the Second Circuit's interpretation of the relevant statutory scheme in Francis, "an alien who had been convicte......
  • Request a trial to view additional results
306 cases
  • Abebe v. Mukasey, No. 05-76201.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 20, 2008
    ...F.3d 790 from inadmissibility3 — not deportation. See 8 U.S.C. § 1182(c) (repealed 1996). Tapia-Acuna, though, followed Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976), and held that equal protection required us to extend section 212(c) relief to aliens facing deportation — if such aliens w......
  • Jankowski v. I.N.S., No. Civ.A.3:00-CV2402JCH.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 12, 2001
    ...deportable" and this "distinction is not rationally related to any legitimate purpose of the statute." Francis v. INS, 532 F.2d 268, 272 (2d Page 279 Under the Second Circuit's interpretation of the relevant statutory scheme in Francis, "an alien who had been convicted o......
  • Leal-Rodriguez v. I.N.S., LEAL-RODRIGUE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 19, 1993
    ...statute," the Second Circuit in 1976 struck it down as violative of the Due Process Clause of the Fifth Amendment. Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976). The BIA subsequently adopted this reasoning in Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976), and extended section 21......
  • Jankowski v. Immigration and Naturalization Service, Civil Action No. 3:00-CV-2402 (JCH) (D. Conn. 4/12/2001), Civil Action No. 3:00-CV-2402 (JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 12, 2001
    ...deportable" and this "distinction is not rationally related to any legitimate purpose of the statute." Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976). Under the Second Circuit's interpretation of the relevant statutory scheme in Francis, "an alien who had been convicte......
  • Request a trial to view additional results

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