United States Court of Appeals,
Fifth Circuit.
No. 94-40440.
Yassin Hassan HUSSEIN, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Aug. 17, 1995.
Petition for Review of an Order of the Board of Immigration
Appeals.
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
The Immigration and Naturalization Service ("INS") initiated
deportation proceedings against Yassin Hassan Hussein, a citizen of
Egypt and, at the time, a lawful permanent resident ("LPR"). An
immigration judge ("IJ") ordered Hussein deported, and he appealed
to the Board of Immigration Appeals ("BIA"). The BIA dismissed his
appeal, and Hussein petitions this Court for review of the BIA's
dismissal. We deny his petition.
I
Hussein began residing in the United States unlawfully
sometime before January 1, 1982. He has continued to reside in the
United States since that time. On December 10, 1988, Hussein
obtained lawful permanent resident ("LPR") status under the amnesty
provisions of the Immigration Reform and Control Act ("IRCA"), 8
1
U.S.C. § 1255a (1994).1 Hussein was subsequently convicted of
theft, theft by check, and injury to a child, and the INS initiated
deportation proceedings against him.
At his deportation hearing, Hussein conceded deportability
and sought to apply for a waiver of deportation under section
212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §
1182(c) (1994). Section 212(c) provides:
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 without
regard to the provisions of subsection (a) of this section.[2]
8 U.S.C. § 1182(c). Although by its terms, section 212(c) applies
to the admission of aliens returning to the United States after a
temporary departure, we have interpreted it to apply to LPR's who
face deportation. See Prichard-Ciriza v. I.N.S., 978 F.2d 219, 222
(5th Cir.1992) (citing Ghassan v. I.N.S., 972 F.2d 631, 633-34 & n.
2 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1412, 122
L.Ed.2d 783 (1993)).3 This means that if an alien meets the
1
In pertinent part, IRCA provided for the adjustment from
illegal status to lawful permanent residence for aliens who could
prove, inter alia, that they had resided in the United States
illegally since sometime before January 1, 1982, through the date
on which they filed an application for LPR status. 8 U.S.C. §
1255a(a)(2)(A). An alien who met the statutory requirements
under § 1255a(a) was granted lawful temporary residence, which
could subsequently be adjusted to lawful permanent residence.
See 8 U.S.C. § 1255a(b).
2
Subsection (a) designates classes of excludable aliens
based on health, criminal, security, and other grounds. See 8
U.S.C. § 1182(a).
3
We explained the origin of this extension in Ghassan:
2
criteria of section 212(c), that is, if he has attained lawful
permanent residence and has maintained a "lawful unrelinquished
domicile of seven consecutive years," he is eligible to apply for
a waiver of deportation. The decision to grant a waiver of
deportation remains within the discretion of the Attorney General.
8 U.S.C. § 1182(c).
The IJ pretermitted Hussein's application for section 212(c)
relief on the grounds that Hussein was ineligible for such a
waiver. The IJ applied the BIA's longstanding interpretation of
section 212(c), which equates "lawful unrelinquished domicile" with
lawful permanent residence,4 and she held that because Hussein had
become a lawful permanent resident on December 10, 1988, he could
not establish that he had maintained a lawful unrelinquished
domicile for seven consecutive years.
Hussein appealed the IJ's decision to the BIA, challenging the
By its terms the statute seems to apply only to aliens
who temporarily left the country voluntarily, but the
Second Circuit has held that the Equal Protection
Clause forbids distinguishing between aliens who
briefly left and reentered the country and are facing
deportation proceedings and those who have not left and
are being deported. See Francis v. INS, 532 F.2d 268,
272-73 (2d Cir.1976). The BIA applies the Second
Circuit's ruling nationwide. See Ashby v. INS, 961
F.2d 555, 557 n. 2 (5th Cir.1992); Mantell v. United
States Dep't of Justice, 798 F.2d 124, 125 (5th
Cir.1986).
Ghassan, 972 F.2d at 633-64 n. 2.
4
See Matter of Anwo, 16 I. & N. Dec. 293 (B.I.A.1977)
(holding that seven-year period in § 212(c) begins to run only
when alien attains lawful permanent resident status); accord
Matter of Kim, 17 I. & N. Dec. 144 B.I.A.1979); Matter of S, 5
I. & N. Dec. 516 (B.I.A.1953).
3
IJ's interpretation of section 212(c) and arguing that his lawful
domicile in the United States began on November 6, 1986, the
effective date of IRCA. The BIA affirmed the IJ's interpretation
of section 212(c) and dismissed Hussein's appeal, rendering his
deportation order final. Hussein now petitions this Court for
review of the BIA's decision, arguing that the BIA and IJ
erroneously interpreted section 212(c).
II
Hussein argues that the BIA erroneously interpreted section
212(c) of the INA by equating "lawful unrelinquished domicile" with
lawful permanent residence. The Attorney General argues that
because § 212(c) is ambiguous, the BIA's interpretation is entitled
to deference under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984).5
Prior to the enactment of IRCA, the circuit courts of appeals
were split over the validity of the BIA's interpretation of the
seven-year domicile requirement of section 212(c). The Fourth
Circuit and the Ninth Circuit deferred to the BIA's interpretation
5
In Chevron, "the Supreme Court established a two-step
method for judicial review of an agency's interpretation of a
statute that it administers." Mississippi Poultry Ass'n, Inc. v.
Madigan, 31 F.3d 293, 299 (5th Cir.1994) (en banc). First,
courts "use "traditional tools of statutory construction' to
ascertain whether "Congress has directly spoken to the precise
question at issue.' " Id. (quoting Chevron, 467 U.S. at 842-43 &
n. 9, 104 S.Ct. at 2781 & n. 9). "If, but only if, the language
of the statute is determined to be either ambiguous or silent on
the particular issue is the reviewing court to proceed to the
second Chevron inquiry: "whether the agency's answer is based on
a permissible construction of the statute.' " Id. (quoting
Chevron, 467 U.S. at 843, 104 S.Ct. at 2782).
4
of § 212(c), see Chiravacharadhikul v. I.N.S., 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. I.N.S., 601 F.2d 459, 464-67 (9th
Cir.1979), and the Second Circuit rejected the BIA's interpretation
as inconsistent with congressional intent, as evidenced by the
plain language of the statute and its legislative history. See Lok
v. I.N.S., 548 F.2d 37, 40-41 (2d Cir.1977). Since the enactment
of IRCA, the Ninth Circuit has limited its holding in Castillo-
Felix and held that an alien who gains LPR status under IRCA's
amnesty provisions establishes lawful domicile as of the date of
his or her application for temporary resident status. See Robles
v. I.N.S., 58 F.3d 1355, 1360-61 (9th Cir.1995). The Fourth
Circuit has not revisited its holding in Chiravacharadhikul since
the enactment of IRCA.
In Castellon-Contreras v. I.N.S., 45 F.3d 149 (7th Cir.1995),
the Seventh Circuit joined the Second Circuit's position in Lok and
held that the BIA's interpretation of section 212(c) is
inconsistent with the plain language of the statute. Id. at 153.
The Seventh Circuit held that the term "domicile" should be given
its common law meaning and defined "lawful domicile" with reference
to the legality of an alien's status and his "intent to remain."
Id. The court stated that an alien who gained LPR status would be
considered lawfully domiciled in the United States beginning on the
date of his application for temporary resident status. Id. at 154;
accord Robles, 58 F.3d at 1360-61. However, because the court
determined that the petitioner in Castellon-Contreras could not
5
have applied for an adjustment to temporary resident status more
than seven years before his deportation order became final, it
affirmed the BIA's determination that he was ineligible for a
section 212(c) waiver. Castellon-Contreras, 45 F.3d at 154.6
This Court, like the D.C., Third, and Eleventh Circuits, has
noted the split in the circuits but has neither rejected nor upheld
the BIA's interpretation. See, e.g., Madrid-Tavarez v. I.N.S., 999
F.2d 111, 112-13 (5th Cir.1993) (noting circuit split but declining
to decide issue because alien entered country illegally without
immigrant visa and therefore had no legal status and could not
establish lawful domicile even under Second Circuit's
interpretation of section 212(c) in Lok ); Graham v. I.N.S., 998
F.2d 194, 195-96 (3d Cir.1993) (same, holding that alien could not
establish lawful domicile during time spent as nonimmigrant
temporary worker); Melian v. I.N.S., 987 F.2d 1521, 1524-25 (11th
Cir.1993) (same, holding that alien could not establish lawful
domicile during time spent on temporary tourist visa); Anwo v.
I.N.S., 607 F.2d 435, 437 (D.C.Cir.1979) (same, holding that alien
could not establish lawful domicile during time spent on temporary
student visa).
Thus, no circuit has upheld the BIA's view that an alien who
attains LPR status through IRCA's amnesty provisions does not
become lawfully domiciled until he attains LPR status. Indeed, the
6
See also Avelar-Cruz v. INS, 58 F.3d 338, 341 (7th
Cir.1995) (reversing BIA decision and holding that alien "became
a lawful domiciliary on [the date on which] he became a lawful
temporary resident under IRCA's amnesty provisions").
6
only two courts that have addressed the validity of the BIA's
restrictive view of section 212(c) as it applies to aliens granted
amnesty under IRCA have rejected it. See Castellon-Contreras, 45
F.3d at 153-54; Robles, 58 F.3d at 1360-61. The only circuit
authority generally supporting the BIA's position is
Chiravacharadhikul v. I.N.S., 645 F.2d 248 (4th Cir.1981), a
pre-IRCA case that the Fourth Circuit has neither revisited since
the passage of IRCA nor applied to an alien who attained LPR status
through IRCA's amnesty provisions.
We do not reach the validity of the BIA's interpretation of
section 212(c) in this case, however, because even if we assume
that "lawful domicile" is not limited to lawful permanent
residence, Hussein has not established that he maintained a lawful
domicile in the United States for seven years preceding his
deportation.7
Hussein applied for and received temporary and then permanent
resident status under the amnesty provisions of IRCA, 8 U.S.C. §
1255a. Under IRCA, the earliest date that Hussein could have
applied for temporary residency was May 5, 1987. See 8 U.S.C. §
1255a(a)(1)(A) (establishing application period as beginning on
date designated by Attorney General); 8 C.F.R. § 245a.2(a)(1)
(1995) (designating May 5, 1987 as beginning date for amnesty
application period). Therefore, the earliest date his lawful
7
Compare Madrid-Tavarez v. I.N.S., 999 F.2d at 112 (not
reaching statutory interpretation question because petitioner
could not establish lawful domicile under Lok during time spent
as illegal alien).
7
temporary resident status could have become effective was May 5,
1987. See 8 C.F.R. § 245a.2(s) (providing that status of alien
whose application for temporary residency is approved shall be
adjusted to lawful temporary residence as of filing date of
application). However, Hussein's deportation became final on April
22, 1994, less than seven years later.8 Consequently, even
assuming Hussein's status had been adjusted to lawful temporary
resident on the earliest possible day, May 5, 1987, he would not be
eligible for a waiver of deportation under section 212(c).9
Hussein argues that he became a lawful domiciliary on the
date that IRCA became effective, November 6, 1986, because after
that date the INS could not freely deport him. See 8 U.S.C. §
1255a(e)(1). Under section 1255a(e), titled "temporary stay of
deportation and work authorization for certain applicants," an
alien who was apprehended before the beginning of the amnesty
application period and who established "a prima facie case of
eligibility to have his status adjusted under subsection (a)...."
8
Hussein's deportation became final, and his lawful
permanent resident status ended, on April 22, 1994, because that
is the date on which the BIA dismissed Hussein's appeal of the
IJ's order of deportation. See Prichard-Ciriza v. I.N.S., 978
F.2d 219, 223 (5th Cir.1992) (holding that alien's deportation
became final, and his lawful permanent residence ended, on date
BIA dismissed alien's appeal of IJ's order of deportation);
Rivera v. I.N.S., 810 F.2d 540, 541-42 (5th Cir.1987) (holding
that alien's deportation became final, and his lawful permanent
residence ended, on date BIA affirmed IJ's order of deportation);
accord Castellon-Contreras, 45 F.3d at 155 & n. 8.
9
Because Hussein would not be eligible for a § 212(c) waiver
even assuming he applied on the first possible date for amnesty,
we need not, as Hussein argues we must, remand for a factual
determination of when he actually applied for and received lawful
temporary and permanent resident status.
8
was not deportable and was entitled to an authorization to work.
8 U.S.C. § 1255a(e)(1). Hussein argues that because of this
limitation on his deportability, he resided in the United States
"under color of law" and with the "incidents of lawful domicile"
beginning on the effective date of IRCA. However, we agree with
the Seventh Circuit, which rejected an identical claim in
Castellon-Contreras, that IRCA's limitation on an illegal alien's
deportability did not change the alien's previously illegal status
into a lawful status. Castellon-Contreras, 45 F.3d at 154.
"Rather, in order to gain LPR status under IRCA, [the alien] had to
establish that from before sometime before January 1, 1982, he "has
resided continuously in the United States in an unlawful status
since such date and through the date the application is filed under
this subsection.' " Id. (quoting 8 U.S.C. § 1255a(a)(2)(A)).10
Because under IRCA itself, an alien retains his illegal status at
least until he files an application for amnesty under § 1255a(a),
we reject Hussein's argument that he became lawfully domiciled in
the United States on the effective date of IRCA.11 Therefore,
10
The Seventh Circuit is the only court to have addressed
the argument that the effective date of IRCA started the
seven-year clock.
11
We note that we have assumed for purposes of argument that
because Hussein's status was adjusted to lawful permanent
residency under the amnesty provisions of IRCA, he has resided in
the United States since before January 1, 1982. However, we note
that in the INS' Order to Show Cause, in which it initiated
deportation proceedings against Hussein, the INS alleged that
Hussein entered the United States as a nonimmigrant visitor on a
six-month temporary stay visa on August 19, 1987, almost a year
after IRCA's effective date. Hussein admitted this allegation
during his deportation proceeding. If it is true that Hussein
has resided in the United States continually only since August
9
because Hussein remained an illegal resident alien until he filed
his application, which was necessarily less than seven years before
his deportation became final, he cannot satisfy the seven-year
lawful domicile requirement. See Madrid-Tavarez, 999 F.2d at 113
(holding that alien could not count time spent in United States
illegally without an immigrant visa toward seven year lawful
domicile requirement); Prichard-Ciriza, 978 F.2d at 223 ("Since
[petitioner] could not have been lawfully domiciled in the United
States when he was in the United States illegally, the time he
spent here as an illegal alien, even if it immediately preceded
time spent as a lawful resident alien, could not count toward the
seven-year requirement.").
In sum, Hussein cannot demonstrate that he has maintained a
lawful domicile continuously for seven years because the earliest
date on which his status could have been adjusted to a legal status
was May 5, 1987, less than seven years before the BIA's final order
of deportation. Because Hussein cannot satisfy the seven-year
domicile requirement, we hold that the BIA correctly determined
that Hussein was ineligible to apply for a section 212(c) waiver of
deportation. Consequently, we do not decide whether the BIA has
properly limited "lawful unrelinquished domicile" to lawful
19, 1987, he would have failed to establish seven years of
domicile, let alone lawful domicile, in the United States.
However, because the entry date alleged in the Order to Show
Cause is inconsistent with his status adjustment under IRCA,
because the INS does not argue this issue, and because Hussein's
§ 212(c) claim fails even assuming he has resided in the United
States since before 1982, we assume the more favorable facts as
he describes them on appeal.
10
permanent residence, and we leave for another day the question of
whether an alien may became lawfully domiciled when his status is
adjusted to lawful temporary resident under IRCA.
III
For the foregoing reasons, Hussein's petition for review of
the BIA's final order of deportation is DENIED.
11
Hussein v. Immigration & Naturalization Service
Court: Court of Appeals for the Fifth Circuit
Date filed: 1995-08-17
Citations: 61 F.3d 377
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