Nwolise v. U.S. I.N.S.

• Decision Date: 03 September 1993
• Docket Number: No. 91-1173,91-1173
• Citation: 4 F.3d 306
• Parties: Johnmark Okey NWOLISE, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 306

4 F.3d 306

Johnmark Okey NWOLISE, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 91-1173.

United States Court of Appeals, Fourth Circuit.

Argued June 1, 1992.

Decided Sept. 3, 1993.

Jeffrey Andrew Bartos, Institute for Public Representation, Georgetown University Law Center, Washington, DC, argued (Douglas L. Parker, on brief), for petitioner.

Kristen Ann Giuffreda, Civ. Div., U.S. Dept. of Justice, Washington, DC, argued (Stuart M. Gerson, Asst. Atty. Gen., Richard M. Evans, Asst. Director, Office of Immigration Litigation, Stewart Deutsch, Civ. Div., U.S. Dept. of Justice, on brief), for respondent.

Before WIDENER and NIEMEYER, Circuit Judges, and LEGG, United States District Judge for the District of Maryland, sitting by designation.

OPINION

WIDENER, Circuit Judge:

Johnmark Okey Nwolise petitions for review of an order of the Board of Immigration Appeals (the Board) denying his motion to reopen his deportation proceeding. Nwolise moved to reopen his case in order to apply for discretionary relief in the form of a waiver of deportation pursuant to section 212(c) of the Immigration and Nationality Act (the Act), codified at 8 U.S.C. Sec. 1182(c). ¹ The Board held that its previous order affirming an immigration judge's order of deportability terminated Nwolise's status as an "[a]lien[ ] lawfully admitted for permanent residence," 8 U.S.C. Sec. 1182(c), and thus rendered him ineligible for discretionary relief under section 212(c). As we find no error, the petition will be denied.

I

Nwolise, a native and citizen of Nigeria, lawfully entered the United States as a student on February 7, 1982. After marrying a United States citizen, Nwolise was granted lawful permanent resident status on April 25, 1983. Nwolise lives with his wife and children in Baltimore, Maryland.

On October 10, 1985, a federal jury in the United States District Court for the District of Maryland convicted Nwolise of conspiracy to distribute heroin, possession with intent to distribute heroin, distribution of heroin, and related offenses. He was sentenced to a total prison term of 12 years, of which he actually served 52 months.

On March 2, 1989, the INS initiated deportation proceedings against Nwolise by issuing an order to show cause alleging that his narcotics convictions made him deportable under section 241(a)(11) of the Act. See 8 U.S.C. Sec. 1251(a)(11). Nwolise's deportation hearing commenced on July 21, 1989. There he admitted the factual allegations contained in the order to show cause but denied deportability. On the strength of the record of Nwolise's narcotics convictions, the immigration judge found him deportable under the Act. Nwolise then filed an application for political asylum and withholding of deportation, and the hearing continued on those issues. Upon conclusion of the hearing the immigration judge held that Nwolise was ineligible either for political asylum or withholding of deportation and, accordingly, ordered his deportation.

On February 21, 1990, Nwolise timely filed an appeal of the deportation order to the Board. The Board found that the record supported the immigration judge's finding of deportability, his denial of asylum, and his denial of withholding of deportation. Thus, the Board dismissed Nwolise's appeal on June 5, 1991.

On June 14, 1991, Nwolise filed with the Board a motion to reopen his deportation proceeding pursuant to 8 C.F.R. Secs. 3.2 and 3.8 (1992). In that motion Nwolise did not challenge the finding of deportability, the denial of asylum, or the denial of withholding of deportation; rather, he sought discretionary relief from deportation pursuant to section 212(c) of the Act. See 8 U.S.C. 1182(c). Section 212(c) provides in pertinent part as follows:

Aliens lawfully admitted for permanent residence who temporarily proceed 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)-(25), (30), and (31) of subsection (a) of this section.

8 U.S.C. Sec. 1182(c). ² The plain language of the statute seems only to apply to aliens returning to the U.S.; however, concerns that such an application of the statute would violate the Equal Protection component of the Fifth Amendment have led the INS and courts uniformly to hold this discretionary relief available to all eligible aliens. See, e.g., Francis v. INS, 532 F.2d 268 (2d Cir.1976); Matter of Silva, 16 I & N Dec. 26 (BIA 1976). Thus, section 212(c) allows any alien "lawfully admitted for permanent residence" ³ yet facing deportation to apply for discretionary relief upon completion of "a lawful unrelinquished domicile of seven consecutive years."

The parties do not dispute that Nwolise was lawfully admitted for permanent residence in the U.S. on April 25, 1983, following his marriage to a U.S. citizen. Nor is it disputed that Nwolise completed seven years of "lawful unrelinquished domicile" in this country on April 25, 1990, some three months after he lodged his appeal with the Board and some 13 months before the Board's decision affirming the deportation order. Instead, the dispute in this case involves the timing of Nwolise's application for discretionary relief.

Nwolise first requested discretionary relief in his motion to reopen his deportation proceeding, which he filed with the Board on June 14, 1991, nine days after the Board's denial of his appeal. By order dated August 6, 1991, the Board denied Nwolise's motion to reopen. The Board held that Nwolise became ineligible for section 212(c) discretionary relief by virtue of the Board's June 5, 1991 decision affirming the immigration judge's order of deportation. According to the Board, that decision made final Nwolise's order of deportation and thus terminated his status as an alien "lawfully admitted for permanent residence," which is a prerequisite for section 212(c) relief. Nwolise then filed a timely petition for review of the Board's order. See 8 U.S.C. Sec. 1105a(a).

Nwolise's petition raises two issues before this court. ⁴ First, whether a final order of deportation renders an alien ineligible for section 212(c) discretionary relief even when the order of deportation comes after the date of completion of the seven-year period of lawful unrelinquished domicile. If we answer this question in the affirmative, we then must consider at what point in the deportation process such orders become final so as to preclude an alien from obtaining section 212(c) relief. We address these questions in turn.

II

A

Before considering the substance of Nwolise's appeal, we pause to note the standard of review that governs our consideration of this case. Nwolise's claims of error raise only questions of law which, of course, this court is empowered to review de novo. However, even as we conduct that plenary review, we must be mindful that we are reviewing the considered judgment of the federal agency charged with interpreting and administering the statute at issue in this case. Accordingly, it is well established that the legal determinations of the Board in interpreting the Act are entitled to deference by this court. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1964); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). Indeed, we have stated that where "the BIA's interpretation of the statutory section is neither inconsistent or unjustified, we [will] uphold the Board's construction which, in its estimation, will better serve the legislative intent and purpose." Chiravacharadhikul v. INS, 645 F.2d 248, 251 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). With these admonitions in mind, we turn to Nwolise's claims.

B

Section 212(c), when read with the definitional provision of the Act, 8 U.S.C. Sec. 1101(a), sets out two separate requirements that an alien must satisfy before he will be eligible to apply for discretionary waiver of inadmissibility or deportation. First, the alien must have completed seven consecutive years of lawful unrelinquished domicile prior to the application. As we have noted, there is no dispute in this case that Nwolise completed his seven-year domicile on April 25, 1990.

The second requirement is that the applicant alien must be "lawfully admitted for permanent residence." See text of Sec. 212(c) at p. 308, supra. On their face the words "lawfully admitted for permanent residence" might suggest that an alien satisfies this requirement once and for all simply by gaining lawful permanent residence status. However, the Act defines "lawfully admitted for permanent residence" so as to make that requirement a continuing one. The Act provides that "[t]he term 'lawfully admitted for permanent residence' means 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 supplied).

That an order of deportability is a change in immigration status sufficient to terminate an alien's lawful permanent residence status now is clearly established. See, e.g., Matter of Lok, 18 I & N Dec. 101 (BIA 1981), affirmed on other grounds sub nom. Lok v. INS, 681 F.2d 107 (2d Cir.1982). Further, the weight of authority supports the INS's position that the Act's use of the words "such status not having changed" commands that an alien's loss of lawful permanent residence status renders him ineligible to apply for section 212(c) discretionary relief, at least where that change in status occurs before the alien has accrued the requisite seven-year lawful unrelinquished domicile. See Lok, 18 I & N Dec. at 105; Rivera v. INS, 810 F.2d 540, 542 (5th Cir.1987);...