dissenting.
I respectfully dissent.
The majority embraces the interpretation of the Immigration and Naturalization Services (INS) that the seven year residency requirement of § 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(c), commences at the time an alien is granted lawful permanent residency, thereby placing this circuit in direct conflict with the Second Circuit, which held in Lok v. Immigration and Naturalization Service, *468548 F.2d 37 (2d Cir. 1977) that the requisite residency need not have accrued after that time.
As the opinions in Lok and the present case aptly point out, the legislative history is shrouded in confusion and uncertainty, challenging the perceptiveness of its examiners. It is, therefore, not surprising that two diametrically opposed conclusions were reached. I, however, am persuaded by the humanitarian aspects and the fact that Congress considered and rejected harsher language.
I
“Deportation is a sanction which in severity surpasses all but the most Draconian criminal penalties.” Id. at 39. It is the recognition of the devastating impact which is the genesis of discretionary forms of relief enacted by Congress, including § 212(c). Section 212(c) was enacted “to provide the Attorney General the flexibility and discretion to permit worthy aliens to continue their relationships with family members in the United States despite a ground for exclusion.” Id. (citation omitted).
The availability of § 212(c) relief, however, was not extended to all aliens. Rather, it was limited to worthy individuals who could establish that they had maintained a residency in this country for a period of seven consecutive years. This residency requirement, which must initially be met before the Attorney General need exercise his discretionary powers, undoubtedly represents a presumption that an alien facing deportation could possibly suffer such a devastating impact so as to justify an examination by the Attorney General. Deportation and its consequences, however, are oblivious to the life situation of an alien. Having come to this country and established their roots into the land, the repercussions of deportation are not diminished by the mere fact that the seven year period follows admittance for permanent residency. Rather, the emotional, familial, and financial repercussions which flow from deportation of those who have settled in this country, touch equally those aliens who were admitted as permanent residents prior to the running of the seven year requirement as well as those aliens who were admitted at some point during the seven year duration.
This reasoning may have prompted Congress to reject harsher language which would have certainly supported the INS’s position. In 1950, the Senate Judiciary Committee considered a suggestion which would have limited the availability of the 7th Proviso to section 3 of the Immigration Act of 1917,1 the precursor to § 212(c), in a manner which would be consistent with the position taken by the respondents. The suggestion to insert the words “established after a lawful entry for permanent residence,” was, however, ultimately rejected by the Committee.
Section 212(c) was enacted a few years later, incorporating much of the language in the Seventh Proviso to section 3 of the Immigration Act of 1917. Omitted, however, was any explicit language limiting relief to aliens who had been domiciled in this country for thé requisite amount of years after being admitted for permanent residence, despite the fact that such language was considered a few years before. In its place was inserted a cryptic passage defying any inexorable interpretation, leading the court in Lok to observe and state that:
If Congress ultimately had determined that such constriction of the class of aliens entitled to the beneficial considerations under 8 U.S.C. § 1182(c) was warranted, it could have expressed its intention explicitly, as it did on other occasions . . The fact that the legislators did not so limit Section 212(c), coupled with the obvious purpose of the statute to mitigate the hardship that deportation poses for those with family ties in this country, impel us to grant the petition.
Id. at 41.
I find such reasoning persuasive and supported by the established rule of law that *469statutes affecting deportation decisions be construed in favor of the alien, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948); Lennon v. Immigration and Naturalization Service, 527 F.2d 187, 193 (2nd Cir. 1975); Errico v. Immigration and Naturalization Service, 349 F.2d 541, 547 n. 3 (9th Cir. 1975). It is my position that the seven year residency requirement need not follow admittance for permanent residency.
I am not convinced otherwise by the Board of Immigration Appeals’ (“BIA”) argument in Matter of Anwo, Interim Decision # 2604 (BIA 1977), affirmed sub nom. Anwo v. Immigration and Naturalization Service, No. 77-1879 (D.C.Cir. June 19, 1979), that such an interpretation of the seven year statutory requirement will undermine other provisions of the Immigration and Naturalization Act. The BIA suggests that the provisions of § 244(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1254(a),2 regarding suspension of deportation, are more stringent than those under § 212(c) because an alien need “only” be a lawful permanent resident and establish a domicile for seven years for § 212(c) relief, whereas § 244(a) requires scrutiny into an alien’s moral character and hardship circumstances. Such a view certainly ignores the difficult standard that must be met to even qualify for permanent resident status. For example, pursuant to 8 U.S.C. § 1255, an alien must have been, inter alia, previously inspected, admitted or paroled, subjected to the discretion of the Attorney General in addition to being required to satisfy other procedural requirements. The broad discretionary powers available to the Attorney General in granting lawful permanent residence could, and presumably do, serve a function equal in stringency to the establishment of good moral character and extreme hardship under § 244(a).
Likewise, even if an alien meets the initial requirements for § 212(c) relief, he must still be considered worthy of relief in the discretion of the Attorney General. That this discretionary exercise of power can be used to safeguard the relief process is evident from the facts of this case.
It must also be remembered that § 212(c) originally applied only to excludable aliens who wére seeking admission.3 It was through judicial decision, and not legislative action, that the provisions later became applicable to other classes of aliens. Lok, 548 F.2d at 39 n. 1; Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir. 1976); Matter of G. A., 7 I & N Dec. 274 (BIA 1956). Merely because both provisions can be applied to lawful permanent residents does not render the hardship and good moral character requirements nugatory; instead, they can be regarded as repetitious or explanatory of the discretionary powers already available. If there is a question of undermining, it has already occurred with the extension of § 212(c) relief to other classes of aliens. There are no real differences in the standards, but only greater articulation of them in § 244(a).
In view of the similarities between § 244(a) and § 212(c), the current INS posi*470tion regarding the seven year residency requirement in § 212(c) cases appears unnecessarily harsh. Aliens who can apply for § 244(a) relief need only live in the United States between seven and ten years before relief can be granted. Yet an alien in a position similar to Castillo-Felix, who began establishing roots in this country in 1963, who independently supports his family, has purchased a home, and satisfied government officials in 1972 of his potential as an American citizen, must add seven years to the nine already spent as a productive individual. Such a result is untenable.
A more logical interpretation of the requirement is that an alien with permanent residence status meets the minimum requirements evident in other provisions by having spent at least seven years developing ties to this country. This interpretation is strengthened by circumstances which permit aliens to be immediately eligible for lawful permanent residence status when, for example, they marry an American citizen, see e. g., Lok, supra. Without the seven year requirement, an alien could meet § 212(c) requirements after spending only a short period of time in the United States.4
II
Even an affirmation in Lok will not entirely resolve the problem because it is still unclear when the period should run prior to attaining lawful permanent resident status. This inquiry is crucial to the present factual situation.5 The few opinions that have discussed § 212(c) requirements have concentrated on the interpretation of the domiciliary period and the voluntary departure provisions, with little attention paid to the requirement that an alien “[be] lawfully admitted for permanent residence.” The phrase, defined in 8 U.S.C. § 1101(a)(20), means 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.”
As noted in Matter of Anwo, supra, at 5-6:
The lawful permanent resident has met extensive quantitative and qualitative standards at time of entry as an immigrant. He-has, legally and properly, established ties to this country. He may work. He normally looks toward citizenship and will have that privilege in time. He enjoys greater rights than the nonim-migrant alien and assumes commensurate responsibilities and duties
Although nothing in the record indicates the exact circumstances under which Castillo-Felix was granted admission, it will be presumed that any decision allowing an alien to reside permanently in the United States is an administrative task not taken lightly, and that the individual deserves the deference accorded him. An exercise of the discretionary authority vested in the Attorney General in this manner has the effect of transforming an otherwise improper entry into a lawful one. Under the general doctrine of nunc pro tunc, this corrective measure applies retroactively to the time of the entry. “Such action, nunc pro tunc, amounts to little more than a correction of a record of entry, which is a frequent and indispensable practice in many and varied situations,” Matter of L., 11 & N Dec. 1, 6 (1940); In re Kempson, 14 F.2d 668 (D.C.1926) (court distinguished those aliens that had been inspected and erroneously admitted from those who had never been inspected allowing nunc pro tunc relief in the former situation only).
This view that a previous unlawful entry can be corrected retroactively is strength*471ened by the conceptual tool used in Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925) in which an alien who had not been lawfully admitted was “regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared.” Even though she was allowed to live in the United States, she “was still in theory of law at the boundary line and had gained no foothold in the United States.” See Yuen Sang Low v. Attorney General of United States, 479 F.2d 820 (9th Cir. 1973). It follows from this somewhat metaphysical appraisal of the immigration process, coupled with nunc pro tunc relief, that when a right to enter is finally declared, the alien retroactively crosses the boundary into the United States and assumes the cloak of legality with all its attendant rights and responsibilities. Going one step further, it follows quite simply that if lawful entry has been made, all the years spent living in the United States subsequent to that time are also made lawful retroactively.
Applying this view to Castillo-Felix, it would appear that upon achieving his status as a lawful permanent resident, his last entry6 into the United States marks the first day of lawful residency. According to the facts of the case, this was in 1969 after his initial voluntary departure and return.
Having resolved the question of when lawful residency commences for purposes of § 212(c), Castillo-Felix clearly fulfills the residency requirement, having been lawfully domiciled for over seven years. Under § 1101(a)(20), an alien is accorded the status of lawful permanent resident unless his status changes. Until the resolution of deport-ability of an alien is finalized, an alien retains his status. In the present case, the decision of deportability was rendered on June 29, 1977, which is over the seven year residency requirement.
Finding that Castillo-Felix is eligible for relief does not of course entitle him to such relief. The Attorney General must exercise his discretion in order to circumvent the deportation order. Accordingly, this case should be remanded to the BIA for further consideration.
. See page 462 supra, majority opinion.
. See n. 19 supra, majority opinion.
. 8 U.S.C. § 1101(a)(13):
(13) The term “entry means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.
As an elaboration on the foregoing definition, the theory has been developed that “each time an alien returns to the United States after an absence abroad, his most recent entry is considered controlling for exclusion and expulsion purposes.” Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident Alien: The Inherent Limits of the Power to Expel, 69 Yale L.J. 262, 267 (1959).
. Literal reading of § 212(c) mandates a departure from this country before seeking relief. In light of Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d Cir. 1976), in which the Second Circuit held that application of relief to only those aliens who had ventured abroad violated the equal protection clause of the fifth amendment, the viability of such a requirement in this circuit is questionable. This opinion, however, need not address this point as the BIA did not base its decision on the failure to meet the actual departure requirement.
. This issue was not addressed in the Lok decision.
. The Court in Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) pointed to the long-standing distinction between aliens seeking admission and those already in the United States, irrespective of its legality.
In the latter instance the Court has recognized additional rights and privileges not extended to those in former category who are merely “on the threshold of initial entry.” [Citations omitted] . . Chapter 4 subjects those seeking admission to “exclusion proceedings” to determine whether they “shall be allowed to enter or shall be excluded and deported.” 66 Stat. 200, 8 U.S.C. § 1226(a). On the other hand, Chapter 5 concerns itself with aliens who have already entered the United States and are subject to “expulsion,” as distinguished from “exclusion,” if they fall within certain “general classes of deportable aliens.” 66 Stat. 204, 8 U.S.C. § 1251.
Id. at 187, 78 S.Ct. at 1073.