White v. I.N.S., No. 95-60170

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore HIGGINBOTHAM and DUHE; DUHE
Citation75 F.3d 213
PartiesRaymond WHITE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Docket NumberNo. 95-60170
Decision Date16 February 1996

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.

Page 214

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),

Page 215

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

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...

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28 practice notes
  • In re Cazares-Alvarez, Interim Decision No. 3262.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 8 Octubre 1997
    ...country," something not requiring LPR status. Id. (citation omitted); see also Morel v. INS, 90 F.3d 833 (3d Cir. 1996); White v. INS, 75 F.3d 213 (5th Cir. 1996); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Melian v. INS, 987 F.2d 1521 (11th Cir. 1993); Rosario v. INS, 962 F.2d 220 (2......
  • In re Leon-Ruiz, Interim Decision No. 3261.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 8 Octubre 1997
    ...section 212(c) 21 I&N Dec. 186 eligibility had been either rejected or questioned by a number of circuit courts of appeals.3 White v. INS, 75 F.3d 213 (5th Cir. 1996); Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Castellon-Contreras......
  • Morel v. I.N.S., No. 95-3271
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 Julio 1996
    ...(7th Cir.1995). Just this year, the Fifth Circuit ruled in accord with the Second and Seventh Circuits on this issue. See White v. INS, 75 F.3d 213 (5th The Ninth Circuit has wavered. In Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979), it deferred to the BIA's interpretation, but it has ......
  • Martinez v. Mukasey, No. 06-60063.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 Marzo 2008
    ...there."). Needless to say, plain statutory language is the most instructive and reliable indicator of Congressional intent. White v. INS, 75 F.3d 213, 215 (5th Cir.1996). Absent indication to the contrary, in analyzing the text of a statute, courts apply the "ordinary, contemporary, common ......
  • Request a trial to view additional results
28 cases
  • In re Cazares-Alvarez, Interim Decision No. 3262.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 8 Octubre 1997
    ...country," something not requiring LPR status. Id. (citation omitted); see also Morel v. INS, 90 F.3d 833 (3d Cir. 1996); White v. INS, 75 F.3d 213 (5th Cir. 1996); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Melian v. INS, 987 F.2d 1521 (11th Cir. 1993); Rosario v. INS, 962 F.2d 220 (2......
  • In re Leon-Ruiz, Interim Decision No. 3261.
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • 8 Octubre 1997
    ...section 212(c) 21 I&N Dec. 186 eligibility had been either rejected or questioned by a number of circuit courts of appeals.3 White v. INS, 75 F.3d 213 (5th Cir. 1996); Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Castellon-Contreras......
  • Morel v. I.N.S., No. 95-3271
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 Julio 1996
    ...(7th Cir.1995). Just this year, the Fifth Circuit ruled in accord with the Second and Seventh Circuits on this issue. See White v. INS, 75 F.3d 213 (5th The Ninth Circuit has wavered. In Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979), it deferred to the BIA's interpretation, but it has ......
  • Martinez v. Mukasey, No. 06-60063.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 Marzo 2008
    ...there."). Needless to say, plain statutory language is the most instructive and reliable indicator of Congressional intent. White v. INS, 75 F.3d 213, 215 (5th Cir.1996). Absent indication to the contrary, in analyzing the text of a statute, courts apply the "ordinary, contemporary, common ......
  • Request a trial to view additional results

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