Lepe-Guitron v. I.N.S.

• Decision Date: 10 December 1993
• Docket Number: P,No. 92-70505,LEPE-GUITRO,92-70505
• Parties: Benjaminetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1021

16 F.3d 1021

Benjamin LEPE-GUITRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-70505.

United States Court of Appeals,

Ninth Circuit.

Submitted Dec. 10, 1993 ^*.

Decided Feb. 15, 1994.

Eric Beaudikofer, El Centro, California, for the petitioner.

Thomas W. Hussey, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

Petition for Review of Decision of the Board of Immigration Appeals.

Before FLETCHER, PREGERSON, and RYMER, Circuit Judges.

FLETCHER, Circuit Judge:

Petitioner, a deportable alien, appeals a decision of the Board of Immigration Appeals ("BIA"), finding him statutorily ineligible for the discretionary waiver of deportation provided for in 8 U.S.C. Sec. 1182(c) ("section 212(c)"). The BIA held that the time during which petitioner lived as a minor child with his permanent resident parents in the United States, prior to himself independently attaining permanent residency, did not count toward the seven years of "lawful unrelinquished domicile" required to make him eligible for discretionary relief under section 212(c).

We have jurisdiction to review orders of deportation pursuant to 8 U.S.C. Sec. 1105a(a). This case requires us to decide whether, under section 212(c), a parent's lawful unrelinquished domicile is imputed to his or her minor children. We hold that it is.

FACTS

Benjamin Lepe-Guitron is a native and citizen of Mexico. He states that his parents immigrated to the United States on September 16, 1976, and successfully applied to immigrate Lepe-Guitron, his sister, and one of his brothers. He further states that his parents and sister attained permanent resident status within two years thereafter, but that due to a processing error attributable to the Immigration and Naturalization Service ("INS") he did not attain that status until On September 1, 1989, Lepe-Guitron pled guilty and was convicted in California Superior Court of possession of marijuana for sale, and was sentenced to 120 days in county jail. On December 5, 1989, the INS instituted deportation proceedings pursuant to 8 U.S.C. Sec. 1251(a)(11) (1988). ² On June 13, 1990, an Immigration Judge ("IJ") found Lepe-Guitron deportable, and held that he was ineligible for section 212(c) relief because he had not been a permanent resident--and thus had not had an unrelinquished lawful domicile--for the requisite seven years. The IJ ordered him deported to Mexico.

October 3, 1986. He has five other, younger siblings, all of whom are United States citizens. He claims to have lived, attended school, and worked in the United States since his arrival in 1976. ¹

Lepe-Guitron appealed to the BIA, arguing that because he was a child at the time, his seven-year period of "lawful unrelinquished domicile" should begin on the date his parents attained permanent resident status (in 1976), rather than on the date he himself independently attained such status. On July 2, 1992, the BIA rejected this argument, holding that Lepe-Guitron's "lawful unrelinquished domicile" must be counted from the date he himself first attained permanent resident status.

DISCUSSION

I.

Enacted in 1952 as part of a wide-ranging revision of the Immigration and Nationality Act ("INA"), section 212(c) 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 without regard to the provisions of paragraphs (1) to (25), (30), and (31) of this section. ³

8 U.S.C. Sec. 1182(c). Although this section applies by its terms only to exclusion proceedings under subsection (a) of Sec. 1182, judicial decisions have extended its reach to deportation proceedings. Butros v. INS, 990 F.2d 1142, 1143 (9th Cir.1993); Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir.1981). ⁴ Thus, deportable aliens who are permanent residents and who have accrued seven years of "lawful unrelinquished domicile" in the United States are eligible for a discretionary waiver of deportation. The provision was enacted to alleviate the harsh effects of deportation on those aliens who have lawfully established substantial ties to the United States. Matter of Anwo, 16 I & N Dec. 293 (BIA 1977).

We interpreted the phrase "lawful unrelinquished domicile" in Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979). There, petitioner entered the country illegally in 1963, was deported in 1969, re-entered illegally, married a permanent resident in 1970, and was granted permanent resident status in 1972. In 1975 he was convicted of knowingly inducing the illegal entry of two aliens into the United States, and the INS began deportation proceedings against him. He conceded deportability, but asked for section 212(c) relief. The IJ and the BIA both found that he was ineligible for relief because his period of lawful domicile did not begin until 1972, when he attained permanent resident status. He appealed to this court, arguing that the "permanent residence" and "lawful unrelinquished domicile" portions of section 212(c) were distinct elements, and that therefore

aliens who have lived here lawfully for seven or more consecutive years can obtain Sec. 1182(c) relief, regardless of when they were admitted for permanent residence.

601 F.2d at 463 (emphasis added).

The Castillo-Felix court rejected petitioner's argument, holding,

to be eligible for Sec. 1182(c) relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence.

Id. at 467 (emphasis added).

The court's opinion was an exercise in deference to the INS's interpretation of its own statute, the INA. The court first noted that section 212(c) was ambiguous as to whether an alien could establish "lawful domicile" without having "permanent resident" status, and that the legislative history was not helpful in clarifying the matter. Id. at 464-65. ⁵ The court noted that since 1953 the BIA had consistently interpreted section 212(c) to require seven years of permanent residence, see Matter of S., 5 I & N Dec. 116 (BIA 1953), ⁶ and held that this interpretation should only be set aside in the face of a "clear showing of a contrary intent by Congress." Id. at 465 (quoting Baur v. Mathews, 578 F.2d 228, 233 (9th Cir.1978)). Finding the BIA's interpretation not clearly contrary to Congress' intent in enacting the Immigration and Nationality Act, the court affirmed. Id. at 466-67.

II.

Lepe-Guitron admits he was not granted permanent residence in his own name until 1986 (only three years before his deportation hearing), but claims that his parents' permanent residence prior to that date should be imputed to him, as he was a minor at the time. The BIA rejected this claim, instead interpreting section 212(c) to require children to themselves accrue seven years of permanent residence after being formally accorded that status. We review the BIA's interpretation of section 212(c) de novo. Abedini v. INS, 971 F.2d 188, 190 (9th Cir.1992); see also Wong v. Ilchert, 998 F.2d 661, 663 n. 3 (9th Cir.1993); Butros, 990 F.2d at 1144.

Castillo-Felix presented facts substantially different from Lepe-Guitron's situation. Castillo-Felix entered the country illegally, married, and only subsequent to his marriage did he acquire permanent resident status. Castillo-Felix, 601 F.2d at 461. Here, on the other hand, Lepe-Guitron, a child, legally entered the United States with his parents, was always legally within the country, was domiciled here, but acquired permanent resident status, still as a minor, many years after his parents achieved it.

The BIA was mistaken in automatically applying the rule in Castillo-Felix--that lawful domicile accrues from the date an alien him- or herself acquires permanent residency--to Lepe-Guitron without considering the crucial differences between the two cases. There are a number of persuasive reasons to hold that a child's "lawful unrelinquished domicile" under section 212(c) is that of his or her parents.

The position espoused by the government would subvert the fundamental policies animating section 212(c). What could be more frustrating to the section's "just and humane" goal of providing relief to those for whom deportation "would result in peculiar or unusual hardship," S.Rep. No. 355, 63d Cong., 2d Sess. 6 (1914), ⁷ than a deportation that severed the bonds between parents and their children who had resided legally in the United States for the better part of their lives? Section 212(c) was enacted to provide relief from deportation for those who have lawfully formed strong ties to the United States. See S.Rep. No. 1515, 81st Cong., 2d Sess. 383 (1950). Because children naturally form the strongest of ties to the place where their parents are domiciled and they with them, section 212(c)'s core policy concerns would be directly frustrated by the government's proposal to ignore the parent's domicile in determining that of the child.

This conclusion is strengthened by a closer examination of Congress' chosen statutory term, "domicile." ⁸ In interpreting "domicile" as it appears in section 212(c), we have previously noted that the INA nowhere defines the term, but "incorporates the concept 'familiar in other areas of law.' " Castillo-Felix, 601 F.2d at 464 n. 11 (quoting 2 Gordon & Rosenfield, Immigration Law and Procedure, Sec. 7.4b at 7-32 (1979)). We adopted a definition of domicile consonant with its common law meaning: that "aliens must not only be physically present here, but must intend to remain." Id. at 464; accord Melian v. INS, 987 F.2d 1521, 1524 (11th Cir.1993) (" 'lawful domicile' under section 212(c) means at least the simultaneous existence of lawful physical presence in the United States and lawful intent to remain in the United States indefinitely"); Anwo v. INS...