White v. I.N.S.

• Decision Date: 16 February 1996
• Docket Number: No. 95-60170,95-60170
• Citation: 75 F.3d 213
• Parties: Raymond WHITE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 213

75 F.3d 213

Raymond WHITE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-60170.

United States Court of Appeals, Fifth Circuit.

Feb. 16, 1996.

Nadine K. Wettstein, Tucson, AZ, Kimberly Ann Kolch, Harlingen, TX, for Petitioner.

Edward J. Duffy, United States Department of Justice, and William Campbell Erb, Jr., and Mark C. Walters, Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

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

Before HIGGINBOTHAM and DUHE, Circuit Judges, and SCHWARZER ¹, District Judge.

DUHE, Circuit Judge:

Petitioner Raymond White seeks review of the Board of Immigration Appeals' ("BIA") decision denying his application for discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act ("INA"). The BIA determined that White was ineligible for § 212(c) relief because he did not maintain seven years of lawful unrelinquished domicile in this country. Because we hold that the Immigration and Naturalization Service's ("INS") interpretation of "domicile" is inconsistent with the statute's plain meaning, we reverse the decision of the BIA and remand for a determination of White's eligibility for a § 212(c) waiver.

BACKGROUND

Raymond White, a Jamaican citizen, entered the U.S. in 1978 as a nonimmigrant agricultural worker. In September 1987, White was granted lawful temporary resident status under the Special Agricultural Workers ("SAW") program of the Immigration Reform and Control Act of 1986 ("IRCA"). See 8 U.S.C. § 1160. Pursuant to this IRCA program, White obtained lawful permanent resident status in December 1990.

In May 1990, before becoming a permanent resident, White was convicted of distributing and conspiring to distribute crack cocaine. As a result, the INS initiated deportation proceedings against White in March of 1994. White sought a waiver of deportation under § 212(c) of the INA. That provision states in part:

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....

8 U.S.C. § 1182(c). ² White claimed that he met the requirements of § 212(c) because he became a temporary resident (and domiciliary) pursuant to IRCA in September 1987; he intended to remain permanently in the United States since that time; he confirmed that intent by becoming a permanent resident in December 1990; and he maintained the same domicile for at least seven years.

The Immigration Judge ("IJ") held that White could not receive this discretionary relief because he had not accumulated the required seven years of lawful domicile. The IJ relied on an INS regulation providing that an "Immigration Judge shall deny an application ... under section 212(c) of the Act if ... the alien has not maintained lawful permanent status in the United States for at least seven consecutive years immediately preceding the filing of the application." 8 C.F.R. § 212.3(f)(2) (promulgated in 1991 as interim final rule). Because White did not become a permanent resident until 1990, the IJ found that he did not meet this seven-year requirement.

The BIA affirmed this decision, concluding that it was bound by 8 C.F.R. § 212.3(f)(2) and its own precedent.

DISCUSSION

White argues that the IJ and BIA erred in computing his years of "unrelinquished domicile" by reference only to his years of "permanent residence." The INS, on the other hand, argues that we should defer to its regulation implementing § 212(c) Because the BIA urges that it is bound by this regulation, the precise issue is whether the INS's interpretation of § 212(c) passes muster under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). An agency is entitled to Chevron deference in construing statutory language only when congressional intent is unclear. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781-82. Only "if the statute is silent or ambiguous with respect to the specific issue ... [does a court ask] whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2781-82. Under Chevron's first step, the plain language of the statute is the most reliable indicator of congressional intent. In determining a statute's plain meaning, we assume that "Congress intends the words in its enactments to carry their ordinary, contemporary, common meaning." Pioneer Investment Services v. Brunswick Associates, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993) (internal quotation marks omitted).

which provides that lawful domicile does not begin until an alien becomes a lawful permanent resident. 8 C.F.R. § 212.3(f)(2).

Domicile has a well-developed meaning in the common law, as the Supreme Court recently recognized: " 'Domicile' is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989). To establish domicile, one must show: (1) physical presence within the United States; and (2) intent to remain in the United States indefinitely. "For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Id.

By contrast, the INA defines "lawfully admitted for permanent residence" as "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. § 1101(a)(20). Being accorded this status does not by itself establish a domicile, nor is it a prerequisite for becoming a lawful domiciliary. Castellon-Contreras v. INS, 45 F.3d 149, 153-54 (7th Cir.1995). Consequently, for a domicile to be lawful, an alien need not obtain lawful permanent residency but must "have the ability under the immigration laws, to form the intent to remain in the United States indefinitely." Id. at 153. A person may form the requisite intent when she becomes a "lawful temporary resident" under IRCA because the statute provides for her eventual adjustment to permanent resident status. ³ Therefore, it is entirely consistent with IRCA for an alien to maintain a "lawful unrelinquished domicile" without first having been "lawfully admitted for permanent residence."

In addition to the distinction between "permanent residence" and "domicile," a plain reading of the text reveals yet another reason why the INS's statutory interpretation is misguided. The textual structure of the statute does not require both seven years of domicile and permanent residency. The statute establishes two separate and independent conditions, neither of which attempts to limit or qualify the other: (1) lawful admission as a permanent resident; and (2) return to a lawful unrelinquished domicile of seven consecutive years. The additional requirement, advanced by the INS, that permanent residence be a prerequisite for establishing domicile is not in the text of the statute. By adding eligibility requirements without textual authority, the agency is exceeding its delegated authority.

Despite the very plain meaning of the statute, the INS argues that "domicile" is a term The INS also contends that the Fourth and Ninth Circuits have deferred to its construction of § 212(c). See Chiravacharadhikul v. INS, 645 F.2d 248, 250-51 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); Castillo-Felix v. INS, 601 F.2d 459, 464-67 (9th Cir.1979). But cf. Lok v. INS, 548 F.2d 37, 40-41 (2d Cir.1977) (rejecting BIA reading of § 212(c)). These cases, however, were decided before IRCA's enactment, and the Ninth Circuit recently limited Castillo-Felix by holding that an alien who gains lawful permanent resident status under IRCA's amnesty provisions establishes lawful domicile when she adjusts to temporary resident status. See de Robles...