Gonzales v. I.N.S.
| Citation | 921 F.2d 236 |
| Decision Date | 05 October 1990 |
| Docket Number | No. 88-7173,88-7173 |
| Parties | Tanya Murphy GONZALES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Michael A. Mullery, and Nora Privitera, San Francisco, Cal., for petitioner.
Steven Barrios, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondent.
Petition to Review a Decision of the Immigration and Naturalization Service.
Before SCHROEDER and BRUNETTI, Circuit Judges, and BREWSTER **, District Judge.
Tanya Gonzales petitions the Board of Immigration Appeals ("BIA") order denying
her Motion to Reopen Deportation Proceedings. Gonzales argued that new evidence of rehabilitation and hardship entitled her to a discretionary waiver under Section 212(c) of the Immigration and Nationality Act ("Act"). The BIA found that Gonzales was statutorily ineligible for relief under Section 212(c) because she was no longer a lawful permanent resident. This court has jurisdiction under 8 U.S.C. Sec. 1105a(a). We deny the petition.
Gonzales is a citizen of the United Kingdom. She was admitted to the United States as a lawful permanent resident in 1963 when she was seven years old. Gonzales is married to a United States citizen and has three children who are United States citizens. The children are presently living with Gonzales's brother.
In 1976, Gonzales was convicted in California of receiving stolen property and placed on probation for three years. In 1983, she was convicted and fined for disturbing the peace. In 1984, she was convicted for aiding and abetting an armed robbery and sentenced to three years in prison. In 1985, Gonzales was convicted of being under the influence of heroin and possession of a hypodermic needle. While in prison, Gonzales voluntarily attended all offered drug abuse and counseling programs, apparently successfully completing them. In 1987, upon her release from prison, the Immigration and Naturalization Service issued an Order to Show Cause charging her with deportability under 8 U.S.C. Sec. 1251(a)(4) for conviction of a crime involving moral turpitude committed within five years after entry. An additional charge was added for conviction of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.
At the deportation hearing on January 22, 1987, the petitioner admitted her deportability on the additional charge and stated, "I believe that deportation is discretionary and we would like to show cause why that discretion should be exercised in her favor although she is legally deportable." The Immigration Judge ("IJ") then proceeded to treat the hearing as a proceeding on the merits of an application for a waiver of deportability pursuant to Section 212(c) of the Act. The IJ found that "[n]o serious question has been raised with regard to unrelinquished domicile." There was thus no issue as to the statutory eligibility under Section 212(c).
In an oral decision, the IJ denied the petitioner's application for a waiver of deportability pursuant to Section 212(c). The IJ considered evidence of her criminal record, family ties in the United States, duration of residence, hardship, and proof of rehabilitation in determining whether a waiver of deportation should be granted. The IJ concluded:
The most compelling factor to grant this respondent the relief which she seeks is the period of time she has been in the United States and the age at which she entered the United States. But on the state of this record given this respondent's criminal conduct in the United States, the question that must be addressed by this court is whether this respondent has demonstrated satisfactory rehabilitation in terms of that criminal behavior. On the state of this record, the court can make no such finding. Therefore, the waiver of deportability at this time is denied.
Gonzales appealed the IJ's order to the BIA, arguing that the IJ abused his discretion in denying the 212(c) waiver. On June 18, 1987, the BIA upheld the IJ's decision and dismissed petitioner's appeal. The BIA concluded,
After independently reviewing the facts presented, together with the criteria for consideration [of Section 212(c) ], we must conclude that the immigration judge did not abuse his discretion in denying [Gonzales] the discretionary relief under section 212(c) of the Act.
Gonzales did not appeal the BIA's decision to this court. On December 2, 1987, petitioner filed a motion with the BIA to reopen her deportation proceedings to consider additional new evidence regarding rehabilitation and hardship. On March 8 to be eligible for relief under section 212(c), a respondent must be an alien lawfully admitted for permanent residence and must have a "lawful unrelinquished domicile" of seven consecutive years. This respondent's status as a lawful permanent resident ended when her deportation order became administratively final....
1988, the BIA denied her motion. The BIA stated,
As the respondent neither is a lawful permanent resident of the United States nor has an unrelinquished lawful domicile, she is no longer statutorily eligible for relief under section 212(c)....
Gonzales filed a timely appeal to this court.
The question we address is whether the BIA erred in denying Gonzales's motion to reopen on the grounds that she is statutorily ineligible for relief under Section 212(c). Because the denial of Gonzales's motion to reopen was based on a determination of law, we review the BIA's decision de novo. Wall v. Immigration and Naturalization Service, 722 F.2d 1442, 1444 (9th Cir.1984).
Section 212(c) of the Immigration and Nationality Act provides:
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.... 8 U.S.C. Sec. 1182(c).
Although the language of section 212(c) refers only to the admission of aliens otherwise subject to grounds of exclusion, it has been interpreted to apply in deportation proceedings. See Tapia-Acuna v. Immigration and Naturalization Service, 640 F.2d 223, 224 (9th Cir.1981). Section 212(c) thus provides discretionary relief from deportation for aliens lawfully admitted for permanent residence who have accrued seven consecutive years of lawful unrelinquished domicile. Avila-Murrieta v. I.N.S., 762 F.2d 733, 734 (9th Cir.1985) (citing 8 U.S.C. Sec. 1182(c); Tapia-Acuna, supra ).
"Lawfully admitted for permanent residence" is defined in the Act as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." 8 U.S.C. Sec. 1101(a)(20) (emphasis added). Eligibility for a discretionary waiver under Section 212(c) thus requires the petitioner (1) be presently a lawful permanent resident of the United States and (2) have a lawful unrelinquished domicile for seven consecutive years.
The regulations promulgated under the Act provide, "an order of deportation ... shall become final upon dismissal of an appeal by the Board of Immigration Appeals." 8 C.F.R. Sec. 243.1 (1990). In the present case, the IJ's deportation order became administratively final on June 18, 1987, when the BIA dismissed Gonzales's appeal. Once the deportation order became administratively final, Gonzales lost her status of being "lawfully accorded the privilege of residing permanently in the United States," 8 U.S.C. Sec. 1101(a)(20), and she no longer had a lawful domicile in the United States.
In Wall v. I.N.S., 722 F.2d 1442, (9th Cir.1984), a British citizen and permanent resident of the United States was ordered deported by an Immigration Judge. Wall appealed to the BIA which rejected the appeal. Wall then petitioned to this court for review. While his petition was pending he applied to the BIA for a discretionary waiver under Section 212(c). The BIA denied the motion to reopen on the grounds that his lawful domicile terminated when the BIA affirmed the IJ's deportation order. This court sustained the petition, and remanded the case to the BIA to determine whether to reopen Wall's case.
The court in Wall contrasted the case before it with Matter of Lok, 681 F.2d 107 (2d Cir.1982). In Lok, the petitioner failed to appeal the IJ's order of deportation. When the time to appeal the deportation The facts in Wall were similar but for the fact that Wall had petitioned to this court for review of the merits of his deportation order. This court sustained Wall's petition, concluding that Wall was eligible for relief under Section 212(c), reasoning that because "Wall had challenged the Board's deportability decision on petition to this court for review, his continued presence in the United States after the administrative adjudication of deportability was a matter of law, not grace." 1
order to the BIA expired, the IJ's order became final. Id. at 110 (citing 8 C.F.R. Secs. 242.21, 243.1). Lok then applied for a waiver under section 212(c). The BIA denied the application because once the order was final he was no longer a lawful permanent resident. The second circuit affirmed, concluding, "Once Tim Lok's order for deportation was not timely challenged on the merits, he resided in the United States ... as a matter of grace, not law." Id
Gonzales's situation is similar to the situation in Lok. The IJ's order of deportation was final and, unlike the situation in Wall, Gonzales had not sought review in this court. Her continued presence in this country was, like Lok's, a matter of grace, not law.
Wall was followed by Avila-Murrieta v. I.N.S., 762 F.2d 733 (9th Cir.1985). In Avila-Murrieta, the petitioner was ordered deported...
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