United States Court of Appeals,
Fifth Circuit.
No. 95-60170.
Raymond WHITE, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Feb. 16, 1996.
Petition for Review of Order of the Board of Immigration Appeals.
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER1,
District Judge.
DUHÉ, 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
1
District Judge of the Northern District of California,
sitting by designation.
1
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
2
Although Section 212(c) by its terms applies to returning
residents only, courts and the BIA have interpreted the provision
to apply to residents who have not left the country but face
deportation. See, e.g., Mantell v. U.S. Dep't of Justice, INS, 798
F.2d 124, 125 n. 2 (5th Cir.1986); Matter of Silva, 16 I & N Dec.
26, 30 (BIA 1976).
2
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), 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
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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, ----, 113 S.Ct. 1489, 1495, 123
L.Ed.2d 74 (1993) (internal quotation marks omitted).
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
4
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
3
SAW provides: "The Attorney General shall adjust the status
of any alien provided lawful temporary resident status under
paragraph (1) to that of an alien lawfully admitted for permanent
residence" after either one or two years of temporary residency
(depending on the length of the alien's prior agricultural labor).
8 U.S.C. § 1160(a)(2).
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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 of art with a specialized meaning in the
§ 212(c) context, and that Congress's enactment of IRCA was
predicated on its acquiescence in this long-standing INS
interpretation. However, "[n]othing indicates that Congress
intended to alter this "time-tested definition [of domicile] when
it enacted § 212(c).' " Castellon-Contreras, 45 F.3d at 153
(quoting Melian v. INS, 987 F.2d 1521, 1524 (11th Cir.1993)).
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 v. INS, 58 F.3d 1355,
1360-61 (9th Cir.1995).4 In addition, the Seventh Circuit rejected
4
The BIA acknowledged that it is bound by de Robles in cases
arising in the Ninth Circuit. In re Carlos Cazares-Alvarez, 1996
WL 23410 (BIA January 3, 1996).
6
the INS's position in an IRCA case, holding that "lawful
unrelinquished domicile" in § 212(c) cannot be equated with "lawful
permanent residence." Castellon-Contreras, 45 F.3d at 153; see
also Avelar-Cruz v. INS, 58 F.3d 338, 340 (7th Cir.1995).
Moreover, we recently observed in Hussein v. INS, 61 F.3d 377 (5th
Cir.1995), that "no circuit has upheld the BIA's view that an alien
who attains LPR [lawful permanent resident] status through IRCA's
amnesty provisions does not become lawfully domiciled until he
attains LPR status." Id. at 380.
Finding no ambiguity in § 212(c), we hold that the INS
impermissibly construed the plain meaning of the statute. Thus, we
will not equate "domicile" and "permanent residence" unless failing
to do so would defeat the statutory scheme or create an absurd
result. Castellon-Contreras, 45 F.3d at 153. Applying the common
law definition of "domicile" does not defeat Congress's statutory
scheme. In fact, it actually helps execute it. By creating the §
212(c) waiver process, Congress authorized the Attorney General to
protect aliens with close ties to this country from suffering
extreme hardship as a result of deportation. Melian, 987 F.2d at
1525 n. 6. Adopting the INS's interpretation would restrict the
Attorney General's ability to exercise this important discretion by
restricting the class of persons eligible for relief. Indeed, "the
agency's interpretation ... frustrates the legislative scheme
because it works to prevent those who have developed close ties to
the United States ... from being able to seek a waiver." Rosario
v. INS, 962 F.2d 220, 225 (2d Cir.1992). Therefore, we will not
7
defer to the agency's interpretation, which is contrary to
congressional intent, common law principles and common sense.
CONCLUSION
Accordingly, we reverse the decision of the Board of
Immigration Appeals and remand for consideration of Mr. White's
eligibility for a § 212(c) waiver.
REVERSED and REMANDED.
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