Matter of Anwo, Interim Decision #2604
| Decision Date | 04 August 1977 |
| Docket Number | Interim Decision #2604,A-19395836 |
| Parties | MATTER OF ANWO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) The respondent, a native and citizen of Liberia was admitted to the United States as a nonimmigrant student on December 9, 1969, and was accorded lawful permanent resident status on October 11, 1973. On September 9, 1975, he was convicted for possession of marihuana in violation of section 402 of Title 33, of the District of Columbia Code. Respondent was subsequently found deportable under section 241(a)(11) of the Immigration and Nationality Act and ordered deported to Liberia.
(2) Relief under section 212(c) of the Act is available only to an alien who has established lawful permanent residence and maintained it for seven consecutive years. Nothing in the statutory language or legislative history indicates a Congressional intent to extend the same benefit to one whose "domicile" here was accrued as a nonimmigrant.
(3) Respondent is statutorily ineligible for relief under section 212(c) of the Act because he has not been a lawful permanent resident for seven consecutive years.
(4) Board declines to follow the rationale expressed in Tim Lok v. INS, 548 F.2d 37 (2 Cir., 1977), in cases arising outside of the second circuit. Nevertheless, respondent would not even qualify for relief under the rationale expressed in Tim Lok v. INS, because he was admitted as a nonimmigrant student. Under these circumstances, a fixed intent to remain in the United States, which is a necessary ingredient of domicile, would have rendered respondent's nonimmigrant status and domicile in this country unlawful and thus not within the second circuit's holding in Tim Lok, supra.
In a decision dated January 26, 1977, the immigration judge found the respondent deportable under section 241(a)(11) of the immigration and Nationality Act as an alien who had been convicted of an offense relating to the illicit possession of marihuana, and ordered him deported to Liberia. The respondent appealed from that decision, originally arguing that deportation on the stated charge would be in violation of the respondent's rights under the Fifth Amendment to the United States Constitution. In oral argument before this Board, however, the respondent, through counsel, requested that we remand the record to the immigration judge for consideration of the respondent's claim for relief from deportation under section 212(c) of the Act and the decision of the United States Court of Appeals for the Second Circuit in Tim Lok v. INS, 548 F.2d 37 (2 Cir.1977), rehearing denied March 16, 1977. For the reasons that follow, the respondent's request for remand of the record will be denied, and the appeal will be dismissed.
The respondent, a native and citizen of Liberia, was admitted to the United States as a nonimmigrant student on December 9, 1969, and was accorded lawful permanent resident status on October 11, 1973. On September 9, 1975, he was convicted in United States District Court of possession of five pounds of marihuana, in violation of Title 33, District of Columbia Code, § 402.
In his brief submitted to the immigration judge and incorporated into the record on appeal, the respondent argues that section 241(a)(11) of the Act as it relates to lawful permanent residents convicted of possession of marijuana is in violation of the Fifth Amendment to the United States Constitution. However, it is beyond the power of the Board to entertain constitutional challenges to the Act itself. Matter of L----, 4 I. & N. Dec. 556 (BIA 1951); see also Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971). This claim, therefore, is pressed by the respondent in an inappropriate forum. Upon a review of the record, we find that deportability under section 241(a)(11) has been established by clear, convincing, and unequivocal evidence.
Section 212(c) was enacted in 19521 to replace the Seventh Proviso to section 3 of the Immigration Act of 1917.2 Under this latter section, an alien otherwise inadmissible under certain provisions of the predecessor to section 212(a) but returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years could be admitted in the discretion of the Attorney General under such conditions as he might prescribe.
Section 212(c), as enacted in 1952, contained two significant restrictions upon the discretionary power conferred upon the Attorney General under the Seventh Proviso. First, under section 212(c), relief is only available to "aliens lawfully admitted for permanent residence who proceeded abroad voluntarily and not under an order of deportation." Second, section 212(c) contains the requirement that the lawful permanent resident alien be returning to a "lawful" unrelinquished domicile of seven years.
The scope of permissible discretion exercisable under the Seventh Proviso was administratively enlarged early on to allow a nunc pro tunc waiver of a ground of inadmissibility in deportation proceedings. See Matter of L----, 1 I. & N. Dec. 1 (A.G.1940). The availability of nunc pro tunc waivers of inadmissibility was reaffirmed after the enactment of section 212(c). See Matter of Tanori, Interim Decision 2467 (BIA 1976). Following the decision of the United States Court of Appeals for the Second Circuit in Francis v. INS, 532 F.2d 268 (2 Cir.1976), we held that relief under section 212(c) was available in deportation proceedings notwithstanding the fact that the respondent had not effected a departure and entry following the acts which rendered him excludable and deportable. Matter of Silva, Interim Decision 2532 (BIA 1976). The respondent, therefore, is not precluded from asserting a claim to section 212(c) relief by reason of his failure to effect a departure and reentry, if he is otherwise eligible under the statute.
To establish eligibility for section 212(c) relief, a respondent must establish that he has maintained a "lawful unrelinquished domicile" in the United States for seven consecutive years. Based upon our understanding of the Congressional intent as reflected by the legislative history of this provision and the restrictive attitude which attended its incorporation into the Immigration and Nationality Act of 1952 (see Tim Lok v. INS, supra, at 41), we have long held that the phrase "lawful unrelinquished domicile" meant that the alien must have maintained a domicile in the United States for seven consecutive years subsequent to his lawful admission for permanent residence. See Matter of S----, 5 I. & N. Dec. 116 (BIA 1953); Matter of Lok, Interim Decision 2509 (BIA 1976).
This interpretation of section 212(c) was followed without judicial challenge for some 24 years. However, it has recently been rejected by the United States Court of Appeals for the Second Circuit in Tim Lok v. INS, supra. The court in that case, overruling the decision of the Board in Matter of Lok, supra, rejected the interpretation of "lawful unrelinquished domicile" set forth in Matter of S----, supra. Noting the Congressional purpose of reuniting families, described in its holding in Francis v. INS, supra, the court held that there existed no direct legal equation between the terms "lawfully admitted for permanent residence" and "lawful unrelinquished domicile." It concluded that it was in fact possible for an alien to possess a "lawful domicile" in the United States without having been admitted for permanent residence, and therefore remanded the case to this Board for determination of whether the domicile prior to his adjustment of status had been "lawful."
However, we continue to believe that the general Congressional policy of reuniting families as described in Francis v. INS, supra, and relied upon by the court in Tim Lok, must give way, in the interpretation of section 212(c), to the specific Congressional intent to restrict the scope of permissible discretion which had been available to the Attorney General under the Seventh Proviso to section 3 of the Immigration Act of 1917.3 The relief available under the Seventh Proviso and section 212(c), as with all provisions providing discretionary relief from the statutory mandates of the Immigration and Nationality Act, springs, of course, from the Congressional belief that exclusion and deportation in some circumstances would be inhumane. However, section 212(c) was enacted in 1952 specifically to restrict the implementation of this policy to certain classes of aliens. It is this restrictive intent, rather than the more general policies governing all relief provisions under the Act, which should govern the interpretation of the language added to section 212(c) and not previously in the Seventh Proviso.
Accordingly, we adhere to our belief that section 212(c) was designed as means of waiving a disability which would otherwise bar a long term lawful permanent resident of the United States from returning to (or, since Francis, continuing) his extensive lawful domicile in this country, and is available only to one who has: (a) established a lawful permanent residence, and (b) maintained it for seven years. Nothing in the statutory language or the legislative history indicates a Congressional intent to extend the same benefit to one who may have eked out all or part of seven years of "domicile" while here as a nonimmigrant.
The lawful permanent resident has met extensive quantitative and qualitative standards at time of entry as an immigrant. He has, legally and properly, established ties to this...
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