Rosario v. I.N.S.

• Decision Date: 27 April 1992
• Docket Number: No. 639,D,639
• Citation: 962 F.2d 220
• Parties: Ruben Dario ROSARIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 91-4047.
• Court: U.S. Court of Appeals — Second Circuit

Page 220

962 F.2d 220

Ruben Dario ROSARIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 639, Docket 91-4047.

United States Court of Appeals Second Circuit.

Submitted Dec. 11, 1991.

Decided April 27, 1992.

Mark T. Kenmore, Buffalo, N.Y. (Gerald P. Seipp, Serotte, Reich & Seipp, of counsel), filed a brief for petitioner.

Diogenes P. Kekatos, New York City, Asst. U.S. Atty. for the Southern District of New York (Otto G. Obermaier, U.S. Atty., Thomas A. Zaccaro, Asst. U.S. Atty. for the Southern District of New York, of counsel), filed a brief for respondent.

Before: FEINBERG, NEWMAN, and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Under the United States immigration laws aliens who abuse their stay here, for example, by committing a crime, are rightfully deported. Recognizing that this disposition, even though deserved, is uniformly harrowing for the alien, Congress provided a method to alleviate this harsh punishment in certain cases. To be eligible to seek such relief, a permanent resident alien must have seven consecutive years of domicile in the United States. If that condition is met, the Attorney General then weighs the merits of the alien's application for relief and, in the exercise of his discretion, decides whether or not to grant relief from an order of deportation.

On this appeal, petitioner asks that we find him eligible to seek relief from an order of deportation. Our task, of course, is to ensure that whatever compassionate conditions are written in the law are carefully adhered to, no matter how slim the alien's chances to escape deportation may be. The question before us is whether this petitioner has met the necessary conditions to be eligible to seek that relief. We think in this case the Immigration and Naturalization Service (INS) in finding petitioner statutorily ineligible to seek a waiver has added conditions to eligibility not found in the statute, and consequently has exceeded its delegated authority. Here, the petitioner's ability to secure a waiver may not be promising, but it is the only path open to him. We grant the petition because in our view petitioner satisfies the conditions for eligibility.

BACKGROUND

Ruben Rosario petitions, pursuant to § 106(a) of the Immigration and Nationality Act of 1952 (Act), 8 U.S.C. § 1105a(a), as amended, for review of the Board of Immigration Appeals (Board or BIA) order dated March 15, 1991 finding him ineligible--because he lacked sufficient time as a United States domiciliary--to apply for a waiver of deportation under § 212(c) of the Act, 8 U.S.C. § 1182(c). The Board upheld a ruling ordering him deported to the Dominican Republic on charges found against him under 8 U.S.C. § 1251(a)(4)(B), recodified as § 1251(a)(2)(A)(iii), and § 1251(a)(11), recodified as § 1251(a)(2)(B)(i), §§ 241(a)(4)(B) and 241(a)(11) of the Act, respectively.

Petitioner, a native and citizen of the Dominican Republic, was born on September 22, 1971 and lawfully acquired permanent resident status in the United States when he landed here on December 3, 1983 at the age of 12. On November 22, 1989 he pled guilty in New York State Supreme Court, New York County, to charges of criminal sale of a controlled substance in the third degree, attempted criminal sale of a controlled substance in the third degree and criminal possession of stolen property in the third degree. He received concurrent sentences of one to three years imprisonment on these convictions. Petitioner elected to participate in the Lakeview Shock Program, a "bootcamp" rehabilitation center and, as a result of successfully completing the program, obtained early release from state custody.

In July 1990 the INS issued an administrative order charging Rosario as deportable under §§ 241(a)(4)(B) and 241(a)(11) of the Act for having been convicted of an aggravated felony and for having been convicted of a crime relating to a controlled substance, respectively. At an administrative trial held on September 26, 1990 the convictions forming the basis for deportability were admitted by petitioner, and while deportability was conceded on the charge under § 241(a)(11) (controlled substance), deportability on the § 241(a)(4)(B) (aggravated felony) charge was denied.

At the trial petitioner was asked, as is customary, whether he had any application for relief and, in response, moved for § 212(c) relief. Rosario's counsel contended that the domicile of an unemancipated minor--as Rosario was on December 3, 1983--is the domicile of that child's custodial parent. In this case, petitioner asserts that his mother (and therefore he) was domiciled in the United States no later than February 1, 1983. In opposing the motion for relief, the INS argued that though Rosario was a permanent resident, he did not have as of September 26, 1990 the seven years of lawful domicile in the United States required for § 212(c) eligibility. The immigration judge agreed with the INS and ruled that for purposes of § 212(c) physical presence in the United States for seven consecutive years was required. Finding that lawful domicile did not commence until Rosario himself landed in the United States on December 3, 1983 the immigration judge rejected Rosario's bid for § 212(c) relief and ordered that he be deported to the Dominican Republic.

Rosario appealed to the Board of Immigration Appeals renewing his argument concerning the tacking-on of his mother's domicile in this country. On March 15, 1991 the Board dismissed Rosario's appeal, noting that "domicile" for § 212(c) purposes has long entailed physical presence in the United States. The BIA was also of the opinion that the adoption of a common law principle not requiring physical presence for the purpose of establishing domicile would be inconsistent with the purposes of that section.

Appellant filed the instant petition for review, and two days later filed with the Board a motion to reopen his case. By decision dated August 7, 1991 the Board denied the motion to reopen. The instant petition for review seeks a remand for trial so that an immigration judge may decide pursuant to § 212(c) whether to grant petitioner discretionary relief from deportation.

DISCUSSION

A. Section 212(c)

We turn first to the statute. 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 ... (emphasis added).

As this provision applies to Rosario, we must determine whether, as of September 26, 1990, he had been "domiciled" in the United States for seven consecutive years and was therefore eligible to seek discretionary relief from deportation. The Board says "no" and if its reading of the statute is entitled to deference that is the end of the matter.

Although the interpretation of an ambiguous statute by the agency charged with its enforcement is ordinarily entitled to great deference, see, e.g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), statutory interpretation is, in the final analysis, a matter for the courts. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984); De Los Santos v. INS, 690 F.2d 56, 59 (2d Cir.1982). Consequently, if we conclude that the INS' interpretation is inconsistent with the statute's language and purpose, deference is inappropriate. See Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9; De Los Santos, 690 F.2d at 59. As we propose to demonstrate in the discussion that follows, such is the case here.

Analysis begins with brief reference to § 212(c)'s applicability, structure, and purpose. We have previously ruled that though the statutory language literally applies only to those permanent resident aliens "who temporarily proceeded abroad voluntarily," it may not be so limited, see Francis v. INS, 532 F.2d 268 (2d Cir.1976), holding that on equal protection grounds § 212(c) relief is available to an otherwise qualified alien regardless of whether or not he has traveled abroad. Accordingly, although § 212(c)'s terms limit its application to exclusion proceedings, it is well settled that it also applies to deportation proceedings. Id. at 273.

Next, when examining the language of the section, it must be observed that there are two elements in § 212(c): "lawfully admitted for permanent residence," and "lawful unrelinquished domicile of seven consecutive years." These are separate and independent conditions, neither purports to limit or qualify the other. We have therefore rejected the contention that all seven years of domicile must be by a person who has had permanent resident status throughout that time. See Lok v. INS, 548 F.2d 37, 41 (2d Cir.1977). It seems plain instead that Congress planned for a permanent resident alien to be eligible for § 212(c) relief, provided that person can meet the domicile condition. This follows, we think, from Congress' two noted and separate conditions which, when established by an alien, clearly demonstrate a measurable attachment to the United States. See M.A. Hall, Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act, 47 U.Chi.L.Rev. 771, 775-76 (1980).

Further, we note that § 212(c) of the Immigration and Nationality Act derives from the Seventh Proviso of Section 3 of the Immigration Act of 1917. The Seventh Proviso states that "aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Secretary of Labor, and under such conditions as he may prescribe." The legislative history reveals that this proviso was inserted as a "humane provision to permit the readmission to the United States (under proper safeguards) of aliens...