Eleazar Morel v. Immigration and Naturalization Service

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dissenting.

Morel seeks relief under section 212(e) 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 ease 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 *843 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(e) 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, 510 U.S. 1081 , 114 S.Ct. 902 , 127 L.Ed.2d 93 (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.” Majority at 837. 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. 1

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 Building and Construction Trades Council, 485 U.S. 568, 575 , 108 S.Ct. 1392, 1397 , 99 L.Ed.2d 645 (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 Francis after 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(e) 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 Appleman correctly assessed what happened in his concurring opinion in Silva: “Section 212(c) has now been judicially rewritten.... *844 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 eases 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 , 70 L.Ed.2d 207 (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, ie., 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. See Chiravacharadhikul 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.”). 2 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, 2781-83 , 81 L.Ed.2d 694 (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] [cjourts, in turn, must respect the judgment of the agency empowered to apply the law to varying fact patterns.” Holly Farms Corp. v. NLRB, — U.S. -, -, 116 S.Ct. 1396, 1401 , 134 L.Ed.2d 593 (1996) (internal quotation marks omitted). If there ever was a case for Chevron deference, this ease 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. *845 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 ease 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. 3

I find it ironical that the majority rejects Chevron deference in this ease on the theory that the “plain language” of section 212(c) demonstrates the “explicit” intent of Congress. Majority at 839-40. 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 *846 Congress, whereas making him eligible for discretionary relief will frustrate that will. Accordingly, I dissent and would deny the petition for review.

. I am not the first person who has made this observation. In Matter of Silva , in which the Board adopted the Francis holding, Board Member Appleman stated in a concurring opinion: “[0]ne cannot help but be puzzled by that portion of the Francis decision which lays this deficiency in the statute at the feet of the Board of Immigration Appeals.... If this discrimination is irrational and unconstitutional, it is so, not because of a Board interpretation, but because of the language of the statute itself.” Silva, 16 I. & N. Dec. 26, at 32 .

. As the majority notes, at 838, the Court of Appeals for the Ninth Circuit would not follow Castillo-Felix v. INS in a case arising under the Immigration Reform and Control Act of 1986, Ortega v. INS, 58 F.3d 1355 (9th Cir.1995), but that act is not implicated in this case and thus for our purposes Castillo-Felix remains undisturbed.

. While I realize that the Board's interpretation also would be applied in exclusion cases, the factors I have mentioned justify the interpretation in all cases: