Variamparambil v. I.N.S.

• Decision Date: 15 October 1987
• Docket Number: No. 86-1346,86-1346
• Citation: 831 F.2d 1362
• Parties: George Job VARIAMPARAMBIL, a/k/a V.J. George, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1362

831 F.2d 1362

George Job VARIAMPARAMBIL, a/k/a V.J. George, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-1346.

United States Court of Appeals, Seventh Circuit.

Argued June 9, 1987.

Decided Oct. 15, 1987.

Nathan T. Notkin, Chicago, Ill., for petitioner.

Jane A. Williams, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for respondent.

Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge.

George Variamparambil seeks review of a decision of the Board of Immigration Appeals (the Board) denying his motion to reopen deportation proceedings. He contends that the Board erred in denying his motion to reopen on the ground that he is statutorily ineligible for a waiver of deportation under Sec. 212(c) of the Immigration and Naturalization Act (INA), 8 U.S.C. Sec. 1182(c). We deny the petition for review.

I. FACTS

Variamparambil, a citizen of India, was admitted to the United States as a lawful permanent resident on August 12, 1977 and has remained here since. In 1983, he pleaded guilty to distributing and conspiring to distribute opium in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Consequently, the Immigration and Naturalization Service (INS) issued an order to show cause charging Variamparambil with deportability under Sec. 241(a)(11) of the INA, 8 U.S.C. Sec. 1251(a)(11), as an alien convicted of drug-related crimes. At the deportation hearing, Variamparambil admitted the factual allegations in the order to show cause but denied deportability. He attempted to present evidence that he had been entrapped by the government and that his conviction was the result of a coerced guilty plea. The immigration judge refused to allow such evidence and on March 21, 1984, found Variamparambil deportable as charged. The judge also ruled that Variamparambil was ineligible for any type of discretionary relief because of the convictions and because he had not accrued seven consecutive years of lawful, unrelinquished domicile in this country as required by Sec. 212(c) of the INA, 8 U.S.C. Sec. 1182(c), for waiver of exclusion or deportation. See n. 1 infra.

On appeal to the Board, Variamparambil contested the finding of deportability and reargued that his due process rights were violated because he was precluded from developing evidence that would have established that he was not deportable since his convictions were the result of improper government conduct and entrapment. In addition, he reiterated that he should have been allowed to apply for relief from deportation through a discretionary waiver of deportability under Sec. 212(c) of the INA, which provides:

Aliens lawfully admitted for permanent residence ... returning to a lawful unrelinquished domicile of seven consecutive years, may [again] be admitted ¹ in the discretion of the Attorney General without regard to the [exclusion from admission] provisions of paragraphs (1)-(25), ² (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title [to readmit aliens without documentation]. (Emphasis added.)

On August 1, 1984, the Board affirmed the immigration judge's finding of deportability. The Board rejected Variamparambil's attempt to attack his criminal convictions collaterally in the deportation proceedings and found that his admission of his narcotic convictions, along with the certified record of those convictions, independently established clear, convincing, and unequivocal evidence of his deportability. The Board also ruled that Variamparambil was statutorily ineligible for discretionary relief under Sec. 212(c) because he did not have seven years of lawful domicile subsequent to his admission as a lawful permanent resident. On September 4, 1985, this Court dismissed Variamparambil's October 5, 1984 petition for review, rejecting his argument that the immigration judge erred in refusing to accept evidence of the facts surrounding his convictions, then his only argument on appeal.

In the meantime, on August 15, 1984, Variamparambil moved the Board to reopen his deportation proceedings to allow him to apply for a waiver of deportability under Sec. 212(c) because he had been lawfully domiciled in the United States for over seven years. His lawful permanent residence had begun August 12, 1977. The Board denied Variamparambil's motion to reopen on the ground that he was statutorily ineligible for such relief because he had not accumulated seven years of lawful domicile commencing August 1, 1977, prior to the final administrative order of deportation on August 1, 1984. Variamparambil petitions this Court for review of the January 18, 1986 refusal to reopen.

Variamparambil raises two arguments in his petition for review. He first claims that the Board erred in construing Sec. 212(c) to preclude an alien from accumulating lawful domicile after the Board has affirmed the deportation order, which in this case was on August 1, 1984. He also challenges his deportation order on the ground that his convictions for distributing and conspiring to distribute opium are not deportable offenses.

II. JURISDICTION

A threshold question concerns our jurisdiction to review the Board's decision denying the motion to reopen. Section 106 of the INA, 8 U.S.C. Sec. 1105a, provides the basis for our jurisdiction over the denial of a motion to reopen. See Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (per curiam ), reversing 308 F.2d 347 (9th Cir.1962) (per curiam ) which held to the contrary. However, Sec. 106(c) further provides that:

No petition for review or for habeas corpus shall be entertained if the validity of the order has been previously determined in any civil or criminal proceedings, unless the petition presents grounds which the court finds could not have been presented in such prior proceeding, or the court finds that the remedy provided by such prior proceeding was inadequate or ineffective to test the validity of the order.

In enacting this provision, Congress sought to eliminate dilatory litigation tactics on the part of aliens subject to deportation and "to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States." H.R.Rep. No. 1086, 87th Cong., 1st Sess. 22-24, reprinted in 1961 U.S.Code Cong. & Admin.News, 2950, 2966. See also Foti v. INS, 375 U.S. 217, 226, 84 S.Ct. 306, 312, 11 L.Ed.2d 281 (basic purpose of 1961 legislation was "to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts").

This Court's previous consideration of Variamparambil's deportation order precludes review of his claim that his criminal convictions are not deportable offenses. The factual and legal bases of this claim existed at the time of the deportation hearing and could and should have been raised at that time and in the initial petition for review; thus we are without jurisdiction to entertain that claim. See Mondragon v. INS, 625 F.2d 270, 272 (9th Cir.1980).

Whether Sec. 106(c) also precludes review of Variamparambil's claim that he is eligible for Sec. 212(c) relief presents a slightly more difficult question. Variamparambil did request Sec. 212(c) relief in the first proceeding; the Board denied this request because he had not accumulated seven years of lawful domicile. However, Variamparambil did not raise the Sec. 212(c) issue in his October 1984 petition for review to this Court. He correctly argues that he could not have because he did not accumulate seven years' domicile until after the Board denied his original request for discretionary relief.

We agree that the instant petition for review presents grounds which "could not have been presented in [the] prior proceeding" within the meaning of Sec. 106(c). As already noted, the August 1, 1984 Board order merely ruled that Variamparambil was not then statutorily eligible for a waiver of deportation; indeed at that time the Board deemed the request frivolous. Nothing in the order suggests that the Board was ruling that Variamparambil could never be eligible for a Sec. 212(c) waiver. The Board's order did not purport to terminate Variamparambil's ability to be lawfully domiciled as of August 1, 1984. That ruling was not made until the January 1986 denial of the August 15, 1984 motion to reopen.

The motion to reopen was the proper vehicle for bringing the Sec. 212(c) claim before the Board. See 8 U.S.C. Sec. 1105a(c) (requiring exhaustion of available administrative remedies prior to seeking judicial review). It was not until after the August 1, 1984 final administrative order of deportation that Variamparambil had been in the United States for seven years. Cf. 8 C.F.R. Sec. 3.2 (motion to reopen seeking discretionary relief shall be denied unless relief "sought on the basis of circumstances which have arisen subsequent to the hearing").

While we are without jurisdiction to entertain Variamparambil's claim that his criminal convictions are not deportable offenses, we do have jurisdiction over his claim that the Board improperly construed Sec. 212(c) when it denied the motion to reopen.

III. SEVEN YEARS LAWFUL DOMICILE

To be eligible for discretionary relief from deportation under Sec. 212(c) an alien must (1) be "lawfully admitted for permanent residence" and (2) have "a lawful unrelinquished domicile of seven consecutive years." The first prong was admittedly satisfied in this case. The parties now also agree that the seven-year period of lawful domicile is to be measured from August 12, 1977, the date Variamparambil was admitted to this country as a lawful permanent resident. But they disagree as to when Variamparambil's lawful domicile ended. He argues that he continued to be lawfully domiciled during...