In re Cazares-Alvarez

Decision Date08 October 1997
Docket NumberFile A92 166 321.,Interim Decision No. 3262.
PartiesIn re Carlos CAZARES-Alvarez, Respondent.
CourtU.S. DOJ Board of Immigration Appeals

BEFORE: Board En Banc: SCHMIDT, Chairman; VACCA, HOLMES, HURWITZ, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinions: VILLAGELIU, Board Member; ROSENBERG, Board Member. Concurring and Dissenting Opinion: HEILMAN, Board Member, joined by DUNNE, Vice Chairman.

HOLMES, Board Member.

In a decision dated October 20, 1994, an Immigration Judge found the respondent deportable under section 241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony. The Immigration Judge also determined that the respondent was statutorily ineligible for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), and ordered him deported to Mexico. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded. Our decision will be referred to the Attorney General for review pursuant to 8 C.F.R. § 3.1(h)(1)(ii) (1995).

I. FACTS

The respondent is a 38-year-old native and citizen of Mexico, who first entered the United States in 1970. He was granted temporary resident status on January 29, 1988, under the provisions of section 245A of the Act, 8 U.S.C. § 1255a (1988). On September 25, 1989, he adjusted his status under section 245A to that of a lawful permanent resident.

On May 11, 1993, the respondent was convicted of possession for sale of a controlled substance in the Superior Court of the State of California for the County of Tulare and was sentenced to a 2-year prison term. The Immigration and Naturalization Service thereafter charged the respondent with deportability under section 241(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony.

At proceedings held on October 20, 1994, the Immigration Judge found the respondent deportable as charged. The respondent requested the opportunity to apply for relief under section 212(c) of the Act. He argued that he was eligible for such relief because he had been admitted for permanent residence and had an unrelinquished lawful domicile of more than 7 years if one included his years of "lawful domicile" that preceded his attainment of lawful permanent resident status. However, relying on precedent decisions of the United States Court of Appeals for the Ninth Circuit and this Board, the Immigration Judge found the respondent ineligible for section 212(c) relief because he could not establish 7 years of lawful unrelinquished domicile after his admission for lawful permanent residence. See Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979); Matter of Kim, 17 I&N Dec. 144 (BIA 1979).

The respondent filed a timely appeal to this Board, challenging the Immigration Judge's finding that he was statutorily ineligible for section 212(c) relief. On appeal he argues that he has the requisite 7 years of "lawful unrelinquished domicile" to establish eligibility for a waiver because that phrase should not be interpreted to include only lawful domicile after admission for permanent residence.

At oral argument on June 7, 1995, the respondent further argued that the recent decision by the United States Court of Appeals for the Ninth Circuit in Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995), is dispositive of the specific issue before us.

In Ortega de Robles, the Ninth Circuit concluded that a lawful permanent resident who gained such status under section 245A of the Act could include time spent as a lawful temporary resident to establish the requisite 7 years of lawful unrelinquished domicile for section 212(c) purposes.

The Service submits that, notwithstanding the Ninth Circuit's decision in Ortega de Robles v. INS, supra, the Board is bound by the provisions of 8 C.F.R. § 212.3(f)(2) (1995), which in relevant part specify that relief under section 212(c) shall be denied if an alien "has not maintained lawful permanent resident status in the United States for at least seven consecutive years immediately preceding the filing of the application." The Service argues that the Board remains bound by the regulation rather than by the Ninth Circuit's decision in Ortega de Robles because the court did not address this regulation in its decision.

The Service also asks that the Board refrain from issuing a precedent decision on this issue until the Department of Justice conducts a review of the regulation and until a court of appeals has ruled on whether the regulation constitutes a proper interpretation of the law.

II. ISSUES

A. Should the Board of Immigration Appeals refrain from issuing a decision in this case?

B. Is the decision of the United States Court of Appeals for the Ninth Circuit in Ortega de Robles v. INS, supra, dispositive of the question of whether a lawful permanent resident who gained such status under section 245A of the Act can include time spent as a lawful temporary resident to establish the requisite 7 years of lawful unrelinquished domicile for section 212(c) purposes in cases arising within the jurisdiction of that circuit?

III. SERVICE REQUEST TO WITHHOLD ADJUDICATION

We deny the Service request to refrain from issuing a precedent decision on the issues raised in this case. The Service asks that we withhold a decision on this issue until the Department has fully reviewed 8 C.F.R. § 212.3(f)(2) and until a court of appeals has ruled on the propriety of the statutory interpretation reflected in that regulation. We note preliminarily that the Service has also asked that we decline to follow the Ninth Circuit's decision in Ortega de Robles v. INS, supra, and instead apply the regulation. The Service's position is inconsistent, therefore, in that it asks us both to take a position, i.e., follow the regulation, yet not issue a precedent decision. Nevertheless, we have evaluated the merits of withholding our adjudication of this case.

Although the Service has asked us to refrain from issuing a decision, it has not indicated that it has refrained from acting on cases involving this issue while awaiting our decision. The Service has not indicated that it has advised its trial attorneys to refrain from presenting arguments on this issue, or that orders of deportation are being stayed in cases which might be affected by the outcome of this case. Further, the Service has not indicated that the issue of the validity of the regulation is currently pending in the Ninth Circuit or that a decision has been made to pursue this issue before that court. The Service has also failed to provide any clear indication of how it would be prejudiced if we were to decide this case.

Conversely, the consequences of not issuing a decision are serious. As the respondent's counsel indicated at oral argument, there are significant numbers of aliens, many of whom are detained at government expense, who are affected by the determination of this issue. Moreover, the Board has a responsibility to provide guidance on interpretations of law in a timely fashion.

Issuance of a precedent decision should also ensure a uniform interpretation of the law, at least insofar as the Ortega de Robles decision affects cases arising within the jurisdiction of the Ninth Circuit. We note, for example, that although the Service's position before this Board is that the regulation controls notwithstanding Ortega de Robles, there are recently decided and pending cases before the Board in which Service trial attorneys have requested that cases be remanded to Immigration Judges for determinations of section 212(c) eligibility in light of Ortega de Robles. Apparently the parties to these proceedings, including Service trial attorneys, are operating under the presumption that Ortega de Robles is controlling in the Ninth Circuit. If that presumption is incorrect, guidance should come sooner rather than later. Failure to address this issue would not maintain a clear status quo; rather, in effect, it would amount to a decision in favor of uncertainty and inconsistency.

For these reasons, we deny the Service's request to refrain from issuing a decision in this case, and we will evaluate the case on its merits.

IV. ELIGIBILITY FOR SECTION 212(c) WAIVER

A waiver of inadmissibility under section 212(c) of the Act is generally available to aliens who have been lawfully admitted for permanent residence, who have temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of 7 consecutive years in the United States. This form of relief is also available to lawful permanent residents, such as the respondent, who have not departed the United States and who are in deportation proceedings. See Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981); see also Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976). Thus, eligibility under section 212(c) of the Act requires that an alien (1) be lawfully admitted for permanent residence and (2) have 7 consecutive years of lawful unrelinquished domicile.

The respondent became a lawful permanent resident on September 25, 1989, and thus satisfies the first...

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