deferring to the BIA’s interpretation of the immigration laws and under this interpretation, affirming that the alien was properly deported
How later courts described this case
- deferring to the BIA’s interpretation of the immigration laws and under this interpretation, affirming that the alien was properly deported
- “... only a clear showing of a contrary intent by Congress will justify overruling the agency’s regulations”
Written by the judges who cited it.
The opinion
HAYNSWORTH, Chief Judge,
dissenting:
I respectfully dissent.
The statute 1 provides for eligibility for the exercise by the Attorney General of his discretion if the returning alien (1) is “admitted for permanent residence,” and (2) is “returning to a lawful unrelinquished domicile of seven consecutive years.” The statute is now consistently applied to deportation cases so that the requisites for eligibility are that an alien shall have been admitted for permanent residence and that he have a lawful unrelinquished domicile of seven consecutive years. This petitioner clearly meets both branches of the test.
If his presence in this country had been unlawful at any time, we might be confronted with a question whether, during that time, he could have a lawful domicile. There might be some question of whether he could acquire domiciliary status at all if he was here on some temporary permit, as that issued to students. In 1970, however, he had been classified as a non-immigrant employee of a foreign government. As such, he could lawfully remain indefinitely. See Elkins v. Moreno, 435 U.S. 647 , 98 S.Ct. 1338 , 55 L.Ed.2d 614 . There was no impediment to his establishment of an entirely lawful domicile, which he did. It had been maintained for more than seven years, though his change in status from that of an employee of a foreign embassy to an immigrant for permanent residence occurred less than seven years ago. There is no ambiguity in the application of the statute to him. Hence, in this case we are not met with the possibly troublesome problems which confronted the Second and Ninth Circuits in Lok v. INS, 548 F.2d 37 (2d Cir. 1977), and Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979).
Even if we were met with those problems, I would come out as the Second Circuit did. I think Judge Kaufman, writing for a panel composed of himself, Judge Friendly and Judge Oakes, persuasively demonstrated that there is no ambiguity in the statute occasioning extreme deference to administrative interpretation. Moreover, there are no practical problems or policy considerations supporting the administrative interpretation, as the dissenting opinion of Judge Takasugi in Castillo-Felix demonstrates.
The Congress in 1950 considered language which would require the result reached by the majority, but the Congress did not adopt that language. The language it did adopt in 1952 seems to me inconsistent with the subsequent administrative in *252 terpretation. I am left with the feeling that the administrative interpretation was bom of the administrator’s preconceived notion of what should be, rather than of an attempt fairly to construe Congressional purpose and intent.
The question before us is not whether the petitioner should be deported. The statute, as I interpret it, simply means that his case should be submitted to the Attorney General of the United States who, after considering all factors, would be free to exercise his discretion as to whether or not the petitioner should be deported.
. 8 U.S.C.A. § 1182 (c).