                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-1996

Morel v. INS
Precedential or Non-Precedential:

Docket 95-3271




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       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 95-3271


                           ELEAZAR MOREL,
                                        Petitioner

                                v.

            IMMIGRATION AND NATURALIZATION SERVICE,
                                       Respondent



          On Petition for Review of an Order of the
                 Board of Immigration Appeals
                    (INS No. A42-267-305)


                      Argued March 25, 1996

        Before:    SLOVITER, Chief Judge, GREENBERG and
                       ROTH, Circuit Judges

                  (Opinion filed July 26, 1996)



Robert Frank (Argued)
Newark, NJ 07102
         Attorney for Petitioner

Frank W. Hunger
  Assistant Attorney General
  Civil Division
David M. McConnell
  Senior Litigation Counsel
Vernon Ben‚t Miles (Argued)
Donald E. Keener
Joan E. Smiley
Office of Immigration Litigation
Department of Justice
Washington, DC 20044

        Attorneys for Respondent
                      OPINION OF THE COURT


SLOVITER, Chief Judge.

        Eleazar Morel petitions for review of the decision of
the Board of Immigration Appeals (BIA) because he was declared
ineligible to apply for relief from deportation under section
212(c) of the Immigration and Nationality Act (INA). Our review
requires that we consider two legal issues, neither of which this
circuit has previously addressed: whether the INS erred in
imposing a requirement of seven consecutive years' domicile after
the alien was admitted to the United States as a lawful permanent
resident and whether the domicile of a parent may be imputed to
his or her child in appropriate cases for purposes of meeting the
seven-year domicile requirement.

                               I.
         Morel is a native and citizen of the Dominican
Republic, born there on June 13, 1972. He was admitted to the
United States as a lawful permanent resident on December 20,
1989 when he was seventeen years old. He resided in Paterson,
New Jersey with his mother, who had preceded him to this country
by approximately four years.
         Morel was arrested on August 24, 1991, and later pled
guilty to possession of cocaine, rendering him deportable under 8
U.S.C.   1251(a)(2)(B)(i). The Order to Show Cause issued by the
Immigration and Naturalization Service (INS) states, and the
immigration judge (IJ) found, that Morel was also convicted of
"employing a juvenile in a drug distribution scheme," App. at 48,
13, an offense which would be classified as an "aggravated
felony" for purposes of the immigration laws, see 8 U.S.C.
1101(a)(43). However, the state court record is to the contrary.
The Judgment of Conviction issued by the New Jersey Superior
Court states that Morel was convicted only of one count of
possession of a controlled dangerous substance, and that the
other offense with which Morel was originally charged, possession
of a controlled dangerous substance within 1,000 feet of school
property, was dismissed. App. at 37.
         After serving his sentence in New Jersey, Morel was
transferred to an INS detention facility in Oakdale, Louisiana,
where the INS initiated deportation proceedings. At a hearing
held on January 17, 1994, Morel requested relief from deportation
pursuant to section 212(c) of the INA, 8 U.S.C.   1182(c). The
immigration judge denied Morel's request on the ground that he
did not meet the requirements of section 212(c), and ordered him
deported to the Dominican Republic. App. at 24. On April 10,
1995, the BIA affirmed the order and dismissed Morel's appeal.
Morel filed his petition for review to this court on May 11,
1995.
         We have plenary review over questions of law, but must
defer to an agency's reasonable construction of ambiguities in
the statutes it is charged with administering. Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
843-45 & n.11 (1984); Katsis v. INS, 997 F.2d 1067, 1069-70 (3d
Cir. 1993), cert. denied, 114 S.Ct. 902 (1944). We will uphold
the agency's findings of fact to the extent that they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." 8 U.S.C.    1105a(a)(4); INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
                               II.
         We must first consider a matter of this court's
jurisdiction, an issue over which we have plenary review. Caplan
v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 834 (3d
Cir. 1995). The INS initially filed a motion to dismiss the
petition for review on the ground that Morel filed his petition
one day late. A motions panel of this court referred the matter
to the merits panel. However, in the brief the INS subsequently
filed with us on the merits of the petition for review, it
conceded that the appeal was timely. See Appellee's Brief at 1
("The petition for review was filed on May 11, 1995, and
therefore is timely under Section 106(a)(1) of the INA, 8 U.S.C.
  1105a(a)(1)").
         The time for filing a petition for review differs,
depending on whether the petitioner was convicted of an
aggravated felony or a lesser offense.   See 8 U.S.C.
1105a(a)(1) ("[A] petition for review may be filed not later than
90 days after the date of the issuance of the final deportation
order, or, in the case of an alien convicted of an aggravated
felony . . . , not later than 30 days after the issuance of such
order."). Thus, had Morel been convicted of an "aggravated
felony," we would indeed lack jurisdiction to consider this
appeal because Morel did not file his petition for review within
thirty days, as required in the case of an aggravated felony.
Although at his deportation hearing Morel's attorney answered
"yes" to the immigration judge's question "do you admit [the]
allegations [of the Order to Show Cause] on behalf of your
client?" and those allegations included the conviction on both
charges, see App. at 27, 48, Morel now argues that because the
only crime of which he was convicted, drug possession, is not an
aggravated felony under the INA, the 90-day time limit governs
and his petition for review was timely filed.
         In response to an inquiry from this court following
oral argument, the INS once again reversed its position on the
issue of our jurisdiction. It now insists that Morel's appeal is
untimely, and that he is estopped from asserting that he was not
convicted of an aggravated felony because he conceded this point
at his deportation hearing. We are not persuaded that this is an
appropriate case for estoppel.
         Because Morel would have been deportable for possession
of a controlled substance, there was no reason for Morel to have
focused on whether he had also been convicted of any other charge
at the deportation hearing. Morel could not then have
anticipated that conviction of an aggravated felony would later
become relevant to the timeliness of his petition to this court.
Therefore, we will not now estop him from arguing that he was not
convicted of an aggravated felony. See Restatement (Second) of
Judgments    27, 28(2)(a) & (5)(b)(1980) (issue preclusion
successfully invoked only when issue was actually litigated and
essential to previous judgment, and not when issue's reappearance
involves substantially unrelated claim or was not sufficiently
foreseeable).
         The judgment of conviction in Morel's criminal case
clearly shows that he was convicted only of drug possession, seeApp. at
37, and the government does not argue otherwise. That
offense is not an aggravated felony under the immigration laws.
To the extent the IJ should be viewed as having made a factual
finding that Morel was convicted of an aggravated felony, that
finding was not supported by substantial evidence. It follows
that Morel had 90 days within which to file his notice of appeal
under 8 U.S.C.   1105a(a)(1), and accordingly his appeal is
timely.
         The INS does not dispute that venue is proper in this
court, although this is an appeal from the BIA in Louisiana.
Under the applicable statute, a petitioner may seek judicial
review in either the circuit in which the hearing took place or
the circuit of his residence. 8 U.S.C.    1105a(a)(2). Morel's
residence prior to his arrest was in Paterson, New Jersey, and
apparently he returned to his home in New Jersey following his
release from INS custody.
           The INS nonetheless suggests that this court should
review the reasonableness of the BIA's decision in light of
Fifth Circuit law, because that was the jurisdiction in which the
case arose. While it may be anomalous that there could be
differing circuit law governing a federal agency's application of
a uniformly applicable federal statute where two circuits have
potential connection with the case, all of the other appellate
courts confronted with a similar situation have applied the law
of their own circuits. See Rosendo-Ramirez v. INS, 32 F.3d 1085,
1091-94 (7th Cir. 1994)(holding court was obliged to apply its
own law despite problems created by lack of uniformity in
application of immigration laws); Maldonado-Cruz v. Dept. of Imm.
& Naturalization, 883 F.2d 788, 790-91 (9th Cir. 1989)(applying
Ninth Circuit law where alien's detention and hearings occurred
in Fifth Circuit based on "the general policy of preventing forum
shopping by the INS" and fact that alien's only contact with
Fifth Circuit was his detention there). We will likewise apply
the law of our own jurisdiction.

                               III.
                                A.
         At issue in this appeal is whether the BIA erred in
determining that Morel was ineligible for a waiver of
inadmissibility under section 212(c) of the INA. Section 212(a)
identifies those classes of aliens who are ineligible to receive
visas and are excluded from admission to the United States.
Section 212(c), however, authorizes the Attorney General to waive
the restrictions of section 212(a) where an alien satisfies
certain conditions. That section 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 . . . .
8 U.S.C.   1182(c).
         We note in passing that the language of section 212(c)
appears on its face to apply only to aliens who seek to re-enter
the country. Nonetheless, the provision has been uniformly
extended to apply to deportation proceedings as well. SeeKatsis v. INS,
997 F.2d 1067, 1070 (3d Cir. 1993), cert. denied,
114 S.Ct. 902 (1994); Tapia-Awna v. INS, 640 F.2d 223, 224-25
(9th Cir. 1981); Francis v. INS, 532 F.2d 268, 271-73 (2d Cir.
1976); Matter of Silva, 16 I & N Dec. 26, 30 (BIA 1976). Even if
we were inclined to reconsider this issue, we are bound by our
previous determination in Katsis that we would follow the uniform
construction. Moreover, we note that the INS does not now
dispute the applicability of section 212(c) to deportation
proceedings, and thus this issue is not before us. Instead, we
turn to Morel's challenge to the BIA's ruling.
                                B.
         Morel's argument is twofold. First, he contends that
the BIA has erroneously interpreted section 212(c) to require
seven years of domicile subsequent to admission as a lawful
permanent resident, a requirement Morel maintains is not imposed
by the statute. Second, although Morel concedes that he had not
resided in this country for seven consecutive years at the time
of his deportation hearing, he contends that the domicile of his
mother, who he claims became a permanent resident on May 27,
1985, should be attributed to him for the period before he joined
her in 1989. He bases the latter argument on the accepted
common-law principle that a minor child's domicile is that of his
or her parent.
         The IJ recognized that Morel claimed the requisite
domicile based on his mother's permanent resident status, but
held that "the respondent is not eligible for the relief in this
Circuit or in this Court of 212(c) waiver based upon his mother's
date of the issuance of the green card. Therefore, it has not
[sic] choice." App. at 24. The BIA affirmed the IJ's decision
and dismissed the appeal in a per curiam opinion. The BIA noted
that the Fifth Circuit had not addressed the imputation-of-
domicile issue, and expressly declined to apply the reasoning of
the other courts which had imputed the domicile of a parent to
the parent's minor child for purposes of determining whether the
child had satisfied the seven-year domicile requirement of
section 212(c). App. at 3 n.1. Of course, the possibility of
imputing a parent's domicile to his or her child will ordinarily
be relevant only if the BIA erred in its reading of section
212(c) as requiring seven years of permanent residency status.
Thus, we turn to the latter issue first.
                                C.
         While the BIA has long held that the seven years of
domicile required by section 212(c) must follow admission as a
lawful permanent resident, see Matter of S., 5 I & N Dec. 116,
117-18 (BIA 1953), the courts of appeals have read the statute
differently. It was the Second Circuit that held initially,
based on both the statutory language and the legislative history,
that the seven years of domicile need not occur after attainment
of permanent residency status. See Lok v. INS, 548 F.2d 37, 39-
41 (2d Cir. 1977). Recently, the Seventh Circuit has agreed with
the Second Circuit's approach. See Castellon-Contreras v. INS,
45 F.3d 149, 152-54 (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 Cir. 1996).
         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 since modified this position somewhat,
creating an exception for children of aliens in a case analogous
to this one, see Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir.
1994) (holding that aliens who, as minor children, lived with
permanent resident parents before independently attaining
permanent resident status may count that period toward section
212(c)'s seven-year domicile requirement). Most recently, that
court held that aliens granted temporary resident status under
the amnesty provisions of the Immigration Reform and Control Act
of 1986, 8 U.S.C.   1255a, may count the period as a temporary
resident toward the seven-year domicile requirement. Section
212(c), Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995).
         The Fourth Circuit is the only court of appeals to have
accepted the BIA's interpretation of section 212(c) in all
respects. See Chiravacharadhikul v. INS, 645 F.2d 248 (4th
Cir.), cert. denied, 454 U.S. 893 (1981). When this issue
previously arose before us, we recognized the differing
interpretations but declined to resolve the issue at that time.
See Graham v. INS, 998 F.2d 194, 195 (3d Cir. 1993). In this
case, the matter is squarely before us.
         Morel's argument, and one which the government has
never satisfactorily answered in this case, is based on the
distinction made in the statute itself between "admi[ssion] for
permanent residence" and "lawful . . . domicile." 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). The INA does not define "domicile," but
the term is ordinarily understood to mean physical presence with
an intent to remain in that place indefinitely. See Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989);
Graham, 998 F.2d at 195. Therefore, in order for an alien to
establish a "lawful" domicile, the alien must be legally capable
of forming an intent to remain in the United States indefinitely.
See Castellon-Contreras, 45 F.3d at 153.
         Aliens such as those admitted as temporary visitors,
students or workers may not lawfully form an intent to remain in
the United States because they have visas that require that the
holder have "a residence in a foreign country which he has no
intention of abandoning." 8 U.S.C.    1101(a)(15). This excludes
them as lawful "domiciliaries." See Graham, 998 F.2d at 196;
see also Melian v. INS, 987 F.2d 1521, 1525 (11th Cir.
1993)(alien on temporary visitor visa cannot lawfully establish
intent to remain since maintenance of foreign domicile required);
Brown v. INS, 856 F.2d 728, 731 (5th Cir. 1988)(alien on student
visa cannot lawfully establish intent to remain since maintenance
of foreign domicile required); Anwo v. INS, 607 F.2d 435, 437
(D.C. Cir. 1979)(same). Likewise, an alien who enters the
country illegally cannot have a lawful intent to remain here.
Castellon-Contreras, 45 F.3d at 153.
         It does not follow that the two statutory phrases -
admission for permanent residence and lawful domicile - are co-
extensive. Certain categories of aliens may lawfully form an
intent to remain here without having been admitted for permanent
residence. For example, aliens holding G-4 visas, which are
issued to nonimmigrants who are "officers, or employees of . . .
international organizations [recognized under the International
Organizations Immunities Act, 22 U.S.C.    288-288j], and the
members of their immediate families," 8 U.S.C.
1101(a)(15)(G)(iv), may legally intend to remain in this country.
See Elkins v. Moreno, 435 U.S. 647, 666 (1978). Similarly,
certain foreign businesspersons and investors, see 8 U.S.C.
1101(a)(15)(E), and refugees granted admission to escape
persecution in their home countries, see 8 U.S.C.    1101(a)(42),
may legally establish a domicile in the United States. The
Seventh and Ninth Circuits have also noted that aliens granted
temporary resident status under the amnesty provisions of the
Immigration Reform and Control Act of 1986, 8 U.S.C.    1255a, may
intend to remain indefinitely in the United States. See Ortega
de Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir. 1995);
Castellon-Contreras v. INS, 45 F.3d 149, 154 (7th Cir. 1995).
          The INS concedes that there are categories of aliens
who may legally intend to remain in the United States without
being admitted as permanent residents, but nevertheless insists
that section 212(c) requires seven years of lawful domicile
following admission as a permanent resident. But the two
requirements of section 212(c) are distinct and independent
conditions. Nothing in the statute suggests that these
requirements qualify or limit one another in a way that would
require that all seven years of "lawful domicile" have been in a
"permanent resident" status. See Castellon-Contreras, 45 F.3d at
153; Rosario v. INS, 962 F.2d 220, 223 (2d Cir. 1992); see alsoMark A.
Hall, Comment, Lawful Domicile Under Section 212(c) of
the Immigration and Nationality Act, 47 U. Chi. L. Rev. 771, 775-
76 (1980). The INS' interpretation is thus inconsistent with the
plain reading of the language of section 212(c).
         The plain language of a statute "should be conclusive,
except in the `rare cases [in which] the literal application of a
statute will produce a result demonstrably at odds with the
intentions of its drafters.' " United States v. Ron Pair Enter.,
Inc., 489 U.S. 235, 242 (1989) (alteration in original) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
The plain language of section 212(c) is consistent with its
purpose, which is to permit application for a waiver of
deportation for individuals who have established significant ties
to this country. See Castellon-Contreras, 45 F.3d at 153 ("[T]he
plain meaning of the term `lawful unrelinquished domicile' . . .
. does not lead to either an absurd result, or one at odds with
Congressional policy."). Although, as the Lok court noted, the
legislative history of section 212(c) also supports the more
liberal interpretation, see 548 F.2d at 40-41 (quoting Senate
Report excerpt suggesting that Judiciary Committee had considered
but rejected proposal to limit waiver eligibility to aliens
accumulating seven years' domicile after admission as permanent
residents), we need not attempt to construe legislative history
when the provision itself is clear. See Blum v. Stenson, 465
U.S. 886, 896 (1984)("Where . . . resolution of a question of
federal law turns on a statute and the intention of Congress, we
look first to the statutory language and then to the legislative
history if the statutory language is unclear.").

         The INS argues that we should defer to the BIA's
interpretation under the rule of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), because the
BIA's position represents that of the agency charged with the
statute's administration.   Of course we recognize that
"considerable weight should be accorded to an executive
department's construction of a statutory scheme it is entrusted
to administer."   Id. at 844. However, "[i]f 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.
         We believe that in this case the intent of Congress is
explicit, and the BIA's interpretation of section 212(c) is
manifestly contrary to both the provision's language and purpose.
By imposing a requirement that an alien have completed the entire
seven years permanent residency before his or her application for
relief from deportation may be considered, the BIA has created an
additional obstacle to relief which Congress did not include in
the statute.
                                D.
         That conclusion leads us to consider whether Morel can
establish the requisite seven years of lawful domicile by relying
in part upon the domicile of his mother prior to his reaching the
age of majority.   We know of only two courts that have directly
addressed whether the domicile of a parent may be imputed to his
or her child for determination of the child's eligibility for
section 212(c) relief, and both have answered this question in
the affirmative.
         In Rosario v. INS, 962 F.2d 220 (2d Cir. 1992), the
court explained that because the legislative history of the INA
does not define "domicile," it would look to the common-law
meaning of that term. Citing Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30 (1989), the Rosario court concluded
that "[a] minor's domicile is the same as that of its parents,
since most children are presumed not legally capable of forming
the requisite intent to establish their own domicile." Rosario,
962 F.2d at 224.
         Similarly, the Court of Appeals for the Ninth Circuit
in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir. 1994), held that
children obtaining permanent resident status before reaching
majority may count their parents' period of lawful domicile
toward their own. Although in its earlier decision in Castillo-
Felix v. INS, 601 F.2d 459 (9th Cir. 1979), that court had upheld
the INS interpretation of "lawful unrelinquished domicile as
accumulating only after the alien acquires permanent residence,
in Lepe-Guitron the court adopted a more expansive interpretation
of "domicile" for children. The court relied upon both the
common-law notion that a child's domicile follows that of her
parents and its belief that "section 212(c)'s core policy
concerns would be directly frustrated by the government's
proposal to ignore the parent's domicile in determining that of
the child." 16 F.3d at 1025.
         The reasoning that guided the courts in Rosario and
Lepe-Guitron leads us to a similar conclusion. In Holyfield the
Supreme Court considered whether children born out of wedlock to
parents who were members of the Choctaw Indian Tribe and
residents and domiciliaries of the Choctaw Reservation were
"domiciled" on that reservation within the meaning of the Indian
Child Welfare Act, although they had never been physically
present on the reservation. The Court concluded that the
children were in fact domiciliaries of the reservation, based on
the generally accepted meaning of the term "domicile" and because
applying that definition would be consistent with the purpose of
the statute. In light of the fact that Congress had neither
defined "domicile" in the Indian Child Welfare Act nor
demonstrated an intent that its definition should be a matter of
state law, the Court "start[ed] with the assumption that the
legislative purpose is expressed by the ordinary meaning of the
words used," viewed "in the light of the object and policy of the
statute." 490 U.S. at 47 (citations omitted).
          The Holyfield court explained that for adults,
domicile is established by physical presence in a particular
place plus an intent to remain there. Id. at 48. One acquires a
"domicile of origin" at birth, and retains that domicile until
s/he chooses a new one. However, because "most minors are
legally incapable of forming the requisite intent to establish a
domicile, their domicile is determined by that of their parents."
Id. Thus, it follows that "[o]n occasion, a child's domicile of
origin will be in a place where the child has never been." Id.(quoting
Restatement (Second) of Conflict of Laws   14 cmt. b
(1988)).
            Based on the reasoning in Holyfield, we too conclude
that the domicile of a parent may be imputed to his or her child
for purposes of determining whether the child has met the seven
year domicile requirement of section 212(c). As with the Indian
Child Welfare Act construed in Holyfield, Congress neither
defined "domicile" in the INA nor indicated that it should be
interpreted by reference to state law. Moreover, application of
the common-law definition of "domicile" here is consistent with
the "object and policy" of section 212(c), which is to provide
relief to aliens for whom deportation "would result in peculiar
or unusual hardship," S. Rep. No. 355, 63d Cong., 2d Sess. 6
(1914)(discussing purpose of the 7th Proviso to section 3 of the
Immigration Act of 1917, the precursor to section 212(c)).
         Various provisions of the INA reflect Congress's intent
to prevent the unwarranted separation of parents from their
children. For example, the INA provides an immigration
preference for the alien children of permanent residents and
United States citizens, 8 U.S.C.    1152(a)(4), 1153(a)(1) & (2),
and children applying for permanent residency status from outside
the United States receive the same priority date and preference
category as that of their parents, 8 C.F.R.
245.1(e)(2)(vi)(B)(1) (1996). The INA also waives excludability
for certain aliens who have helped their children enter the
country illegally. 8 U.S.C.    1182(a)(6)(E)(ii). See Lepe-
Guitron, 16 F.3d at 1025.
         The BIA's interpretation of "domicile" as it applies to
children is plainly inconsistent with the term's customary
meaning. Moreover, the BIA's restrictive interpretation violates
the principle that ambiguous deportation provisions should be
construed in favor of the alien. See INS v. Cardoza-Fonseca, 480
U.S. 421, 449 (1987); Costello v. INS, 376 U.S. 120, 128 (1964);
Rosario, 962 F.2d at 225.   We therefore decline to defer to its
construction in this instance.
         Having concluded that the domicile of a minor child may
follow that of his or her parents in appropriate circumstances,
the issue arises as to which parent's domicile should be
determinative. At common law, the domicile of a child born in
wedlock followed that of the father, while an "illegitimate"
child assumed the domicile of the mother. See Restatement
(Second) of Conflict of Laws   14(2) (1988); Holyfield, 490 U.S.
at 48. In Rosario, the court of appeals declined to follow the
common-law definition of "domicile" to the extent that it relied
upon the marital status of the child's parents for purposes of
section 212(c), and decided instead that a minor should be
permitted "to establish domicile through a parent with whom he
had a significant relationship during the time in question." 962
F.2d at 224. We agree with the Rosario court that such an
approach better serves "the ameliorative purpose of   212(c)."
Id. It is more consistent with Congress' concern with keeping
families intact, reflected in the other provisions referred to
above, to have the imputation of a child's domicile turn on the
nature of the relationship between parent and child rather than
on the status of the parents' relationship.
         Of course, it does not follow that satisfaction of the
seven year domicile requirement through the imputation of
domicile of a parent to a minor child will alone warrant the
waiver authorized by section 212(c). The waiver power given by
Congress to the Attorney General and delegated by the Attorney
General to the BIA is a discretionary one. Undoubtedly, the BIA
will take various factors into consideration, such as the length
of the alien child's stay in this country, the child's age, the
reasons for the child's failure to satisfy independently the
seven year lawful domicile requirement, and the nature of the
child's relationship with the domiciliary parent. For example, a
child prevented from rejoining his or her parent in this country
because of the outbreak of hostilities abroad may be treated
differently than one who was separated from the domiciliary
parent for a substantial period of the time at issue for other
reasons.
         In this case, there is no indication that the BIA
exercised any discretion. In addition, the record is
insufficient to permit us to determine if Morel even established
the requisite period of domicile through his mother. Because the
IJ and BIA decided that the date from which Morel's mother
established a lawful unrelinquished domicile in this country was
irrelevant for purposes of Morel's case, Morel was not given an
opportunity to present evidence establishing the period of his
mother's domicile or the nature of his relationship with her. We
will therefore remand for determination of these issues.

                               IV.
         For the reasons set forth above, we will grant Morel's
petition for review and remand the matter to the BIA for further
proceedings consistent with this opinion.

________________________________



Morel v. Immigration and Naturalization Service, No. 95-3271


GREENBERG, Circuit Judge, dissenting.
         Morel seeks relief under section 212(c) of the
Immigration and Nationality Act, 8 U.S.C.   1182(c), which as
germane here, provides that:
         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. . . .
Section (a) lists classes of aliens who shall be excludable from
admission into the United States and Morel is excludable under
that list by reason of his conviction for possession of cocaine.
As written, section 212(c) cannot possibly apply in this case
because Morel entered the United States in 1989 and, at least
insofar as appears in these proceedings, never has "temporarily
proceeded abroad" and, in any event, is not seeking to reenter
the country. In short, this case seemingly has nothing to do
with section 212(c) as that section plainly deals only with
exclusion of aliens. Thus, a person of ordinary intelligence,
not trained in the law, reading section 212(c) and given the
facts of this case would conclude that Morel's petition is
frivolous.
         Why, then, is section 212(c) even in issue here? The
answer lies in the truth that I have come to know all too well,
that in the arcane world of the law what seems simple and obvious
often becomes complicated, particularly when a court thinks an
act of Congress or of a legislature is unjust. In accordance
with that process, section 212(c) lost its obvious meaning that
it was applicable only to exclusion cases in 1976 in the decision
in Francis v. INS, 532 F.2d 268 (2d Cir. 1976). In Francis, the
petitioner, Francis, had been convicted of a marijuana offense.
He sought a review of a final order of deportation of the Board
of Immigration Appeals entered against him, claiming that under
section 212(c) he could apply to the Attorney General for
discretionary relief from deportation. Francis, however, faced a
seemingly insurmountable hurdle because under the Board's policy
of applying section 212(c) as written, he was not eligible for
relief since he had not departed temporarily from the country
after his conviction. To surmount this hurdle, Francis contended
that the distinction between aliens who left the country and
those who stayed "lacks any basis rationally related to a
legitimate governmental interest, and therefore, deprives him of
the equal protection of the law." Id. at 269.
         The Court of Appeals for the Second Circuit agreed with
Francis. While it did not fault the Board for its interpretation
of section 212(c), and it acknowledged that the "authority of
Congress and the executive branch to regulate the admission and
retention of aliens is virtually unrestricted," 532 F.2d at 272,
it nevertheless concluded that "[r]eason and fairness would
suggest that an alien whose ties with this country are so strong
that he has never departed after his initial entry should receive
at least as much consideration as an individual who may leave and
return from time to time." Id. at 273. Thus, the court held on
equal protection grounds "that the Board's interpretation of
Section 212(c) is unconstitutional as applied to this
petitioner." Id. Accordingly, the court remanded the case to
the Board so that the Attorney General could exercise discretion
under section 212(c). In Matter of Silva, 16 I. & N. Dec. 26, 30
(BIA 1976), the Board adopted the Francis ruling and apparently
the Board has applied it nationwide ever since. See, e.g.,
Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993), cert. denied,
114 S.Ct. 902 (1994).
         We, of course, do not deal directly with the question
the court considered in Francis, as the Immigration and
Naturalization Service accepts the holding in that case and thus,
as the majority notes, "does not now dispute the applicability of
section 212(c) to deportation proceedings." Typescript at 9.
Although I believe that the Francis holding is questionable, I
will accept the Francis court's conclusion that the distinction
between aliens who leave and return and those who never leave
denies equal protection of the law to the latter group. But I
cannot understand how the Francis court reached the conclusion
that it was the Board's interpretation of section 212(c) that was
unconstitutional. Francis, after all, was not a case in which an
agency with a reasonable choice between possible interpretations
of a statute chose an interpretation that rendered the statute
unconstitutional rather than valid. Quite to the contrary,
section 212(c), as written, clearly did not apply to Francis.
Indeed, the Francis court, following the Court of Appeals for the
Ninth Circuit in Arias-Uribe v. INS, 466 F.2d 1198 (9th Cir.
1972), acknowledged that "the Board's interpretation is
consistent with the language of Section 212(c)." Francis, 532
F.2d at 271-72. In the circumstances, there is no escape from
the conclusion that, if the Francis court's equal protection
holding was correct, it was section 212(c) itself and not the
Board's interpretation of it that was unconstitutional.
         This distinction is not semantic. It is clear that a
court should construe an ambiguous statute to be constitutional
if such a construction is reasonable. DeBartolo Corp. v. Florida
Gulf Coast Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392,
1397 (1988); United States v. A.D., 28 F.3d 1353, 1358-59 (3d
Cir. 1994). But, because of the clarity of section 212(c), that
principle could not have justified the court's remedy in Francisafter its
finding that there had been an equal protection
violation, as no reasonable construction could have saved section
212(c). Indeed, the court in Francis did not claim to be
construing an ambiguous statute to be constitutional. Rather,
without explaining why its constitutional conclusions justified
granting Francis the right to seek discretionary relief from
deportation, the court simply granted him that right.
         The problem with the Francis court's remedy is that it
may be that the equal protection violation found by the court
should not have led to the holding that Francis was eligible for
relief. Rather, the court instead should have invalidated
section 212(c). Then Congress could have determined whether to
apply section 212(c) in deportation cases or whether relief under
the section would not be available in either deportation or
exclusion cases. After all, as we explained in Fields v.
Keohane, 954 F.2d 945, 950 (3d Cir. 1992), a court cannot
invalidate a law on constitutional grounds and create in its
stead a law that the legislature, in this case Congress, would
not have enacted. The Francis court, however, upon finding the
equal protection violation, rewrote section 212(c) to apply far
beyond its written bounds. Board Member Appleton correctly
assessed what happened in his concurring opinion in Silva:
"Section 212(c) has now been judicially rewritten. . . . This
may be desirable, but it is not what Congress wrote, nor what it
intended." Silva, 16 I. & N. Dec. 26, at 31-32. I emphasize
that in rewriting section 212(c) the Francis court did not merely
invalidate an exception and leave the basic statute in place.
The court wrote a new law which applied to a class of persons,
i.e., aliens subject to deportation, that Congress never
mentioned or intended to benefit in section 212(c). Thus, the
court reached what it thought was a just result and section
212(c) lost its obvious meaning.
         The Francis court's rewriting of section 212(c) has had
far-reaching consequences. It appears from the reported cases
that the section now is applied in most instances to aliens who
have not left the country following their criminal convictions.
See, e.g., White v. INS, 75 F.3d 213 (5th Cir. 1996); Graham v.
INS, 998 F.2d 194 (3d Cir. 1993); Katsis v. INS, 997 F.2d at
1070; Chiravacharadhikul v. INS, 645 F.2d 248, 249 (4th Cir),
cert. denied, 454 U.S. 893, 102 S.Ct. 389 (1981); Castillo-Felix
v. INS, 601 F.2d 459, 462 (9th Cir. 1979). Thus, Congress passed
a statute intended for use in one situation that now appears to
be used principally, perhaps almost exclusively, in another.
Inasmuch as the Constitution vests legislative power in Congress
and not the courts the remedy in Francis, to put it mildly, is
disturbing.
         Yet, I will accept not only the equal protection
conclusion in Francis, but the remedy that the Francis court
provided, i.e., applying the statute to aliens who did not leave
the country after their criminal convictions. Because the INS
does not challenge the appropriateness of the Francis remedy I
have no other choice. Yet it is fitting to consider the problems
with the Francis decision in an analysis of the issue at hand.
         While the Board has acquiesced in Francis, it has
adopted an interpretation of section 212(c) that requires that
Francis be applied within reasonable boundaries, as it has held
for 40 years "that an alien's lawful domicile begins to accrue
only after lawful admission to this country for permanent
residence." Graham v. INS, 998 F.2d at 195. See also Madrid-
Tavarez v. INS, 999 F.2d 111, 112 (5th Cir. 1993) ("For the last
forty years, the BIA has interpreted this language as requiring
that to be statutorily eligible, the alien must have been a
lawful permanent resident of the United States for at least seven
years prior to his or her application for   212(c) relief.").
Other courts of appeals have upheld this interpretation.
SeeChiravacharadhikul v. INS, 645 F.2d at 250; Castillo-Felix v.
INS, 601 F.2d at 467 ("For this reason, and because of the
deference which we must give to the INS' longstanding and
consistent interpretation, we hold that, to be eligible for
[212](c) relief, aliens must accumulate seven years of lawful
unrelinquished domicile after their admission for permanent
residence."). As far as I am concerned the administrative
interpretation is correct, as section 212(c) should be read as a
whole with the terms "permanent residence" and "lawful
unrelinquished domicile of seven consecutive years" relating to
each other.
         One would think that it scarcely need be stated that
ordinarily the courts owe deference to an administrative
interpretation of a statute. See Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837, 842-45, 104 S.Ct. 2778,
2881-83 (1984). As the Supreme Court recently has indicated,
while a statute's plain meaning must be given effect, "[w]hen the
legislative prescription is not free from ambiguity, the
administrator must choose between conflicting reasonable
interpretations [and] [c]ourts, in turn, must respect the
judgment of the agency empowered to apply the law to varying fact
patterns." Holly Farms Corp. v. NLRB, 116 S.Ct. 1396, 1401
(1996) (internal quotation marks omitted). If there ever was a
case for Chevron deference, this case is the one. We deal here
with a statute that reasonably can be read to support the Board's
position. Furthermore, the Board does not ask us to approve a
new interpretation. Rather, we are urged merely to approve an
administrative interpretation followed consistently for many
years and, significantly, adopted by other courts of appeals.
         It is also important to recognize that Congress in 1990
amended section 212(c) by narrowing the class of aliens who could
be admitted at the discretion of the Attorney General by
excluding from it aliens convicted of one or more aggravated
felonies for which the alien served a term of imprisonment of at
least five years. See Immigration Act of 1990, Pub. L. No. 101-
649,   511(a), 104 Stat. 4978, 5052 (1990); Scheidemann v. INS,
83 F.3d at 1519-20. The Board's approach in construing section
212(c) is in harmony with Congress's action in limiting the class
eligible for relief under that section. Congress has continued
to manifest a restrictive approach to criminal aliens. Thus, in
the Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132,    440 and 441, 110 Stat. 1214, 1278-79 (1996),
Congress amended the Immigration and Nationality Act to expand
the list of crimes constituting deportable aggravated felonies
and to provide for expedited deportation of criminal aliens who
have served their sentences. To me the congressional intent with
respect to criminal aliens is clear and I think the Board's
interpretation of section 212(c) accords with Congress's
approach.
         It is also significant that we deal with a case in
which, as I have explained, the statute is being applied to allow
relief to a class of litigants Congress never intended to be
eligible for relief. Consequently, it is all the more
appropriate for us to defer to the Board's interpretation that
limits the eligible persons within that class. After all, as I
have pointed out, no reasonable person could read the words of
section 212(c) and interpret them to mean that Morel can be
eligible for the discretionary relief afforded by the section.
         I find it ironical that the majority rejects Chevrondeference in
this case on the theory that the "plain language" of
section 212(c) demonstrates the "explicit" intent of Congress.
Typescript at 14-15. The absolutely undeniable truth is that if
we apply the plain language of section 212(c), we will uphold the
Board and deny Morel's petition. While I understand why, if we
follow Francis, we do not apply the plain language of section
212(c) and limit the section to exclusion cases, our refusal to
do so is, for the reasons I have stated, an additional
justification for declining to upset a long-standing
administrative practice which is supported by other courts of
appeals.
         Finally, the Board's interpretation makes sense. It is
clear that Congress required the seven-year domicile because it
wanted to confine the opportunity to apply for discretionary
relief under section 212(c) to persons with a substantial
connection to this country as demonstrated by their lengthy
presence. Morel came into this country on December 20, 1989,
committed his drug offense in August 1991, and was convicted on
January 6, 1993. Morel's attorney admitted at oral argument, as
the logic of his argument required, that if we accepted his
position, then an alien who committed a crime immediately upon
entering the country could be eligible for discretionary relief
as long as the alien satisfied the seven-year domicile
requirement. Can anyone really believe that Congress intended
that by the use of an imputed domicile an alien with only such a
fleeting connection to this country should be eligible for
section 212(c) relief? Morel's 20-month stay in this country
before he committed his crime is not much more substantial.
         In closing, I reiterate that I do not understand why we
do not follow a consistent, reasonable, long-standing
administrative interpretation that has been approved by other
courts of appeals and which is in harmony with the congressional
approach to criminal aliens, and hold that Morel is not eligible
for section 212(c) relief because he had not been a lawful
permanent resident of the United States for seven years before
applying for that relief. In view of the language of section
212(c), it is clear beyond doubt that the denial of the
opportunity to Morel to apply for discretionary relief will
further the will of Congress, whereas making him eligible for
discretionary relief will frustrate that will. Accordingly, I
dissent and would deny the petition for review.
