Interim Decision #3261

Interim Decision #3261

Interim Decision #3261

In re Hector PONCE DE LEON-Ruiz, Respondent

File A91 278 310 - Bloomington

Decided by Board January 3, 1996

Decided by Attorney General June 29, 1997

Decided by Board on remand October 8, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Following the amendment of section 212(c) of the Immigration and Nationality Act, 8

U.S.C. § 1182(c) (1994), by section 440(d) of the Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277, and the Attorney General’s ruling

in Matter of Soriano, 21 I&N Dec. 586 (BIA 1996; A.G. 1997), an alien who is deportable

as an aggravated felon is not eligible for section 212(c) relief.

FOR RESPONDENT: Robert Dildine, Esquire, Minneapolis, Minnesota

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Terry M. Louie, General

Attorney

BEFORE THE BOARD

(January 3, 1996)

BEFORE: Board En Banc: DUNNE, Vice Chairman; HEILMAN, HOLMES, HURWITZ,

COLE, and MATHON, Board Members. Concurring Opinions: SCHMIDT, Chairman;

FILPPU, Board Member, joined by VACCA, Board Member. Dissenting Opinions:

ROSENBERG, Board Member; VILLAGELIU, Board Member, joined by

GUENDELSBERGER, Board Member.

HEILMAN, Board Member:

In a decision dated October 11, 1994, an Immigration Judge found the

respondent deportable under sections 241(a)(2)(B)(i) and (a)(2)(A)(iii) of

the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(B)(i) and

(a)(2)(A)(iii) (1994). The Immigration Judge further determined that the

respondent was statutorily ineligible for relief under section 212(c) of the

Act, 8 U.S.C. § 1182(c) (1994). As a result, the Immigration Judge ordered

the respondent deported from the United States to Mexico. The respondent

has appealed from the Immigration Judge’s decision. This appeal will be

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dismissed. The respondent’s request for oral argument before the Board is

denied. See 8 C.F.R. § 3.1(e) (1995). Because of the importance of the issue,

this decision is certified to the Attorney General pursuant to 8 C.F.R.

§ 3.1(h)(1)(ii).

I. ISSUE

The central issue is whether the respondent can properly count his lawful

temporary resident status towards the 7-year lawful domicile requirement for

eligibility for a waiver under section 212(c) of the Act.

II. FACTS

The respondent is a 29-year-old native and citizen of Mexico. He was

granted temporary resident status effective on April 27, 1988, and subsequently adjusted his status under that provision to that of a lawful permanent

resident on September 6, 1991.1

On August 26, 1993, the respondent was convicted of three counts of the

sale of marihuana in the Ramsey County District Court, St. Paul, Minnesota,

and was sentenced to a suspended sentence of 1 year and 1 day, 100 days of

community service, and a fine of $387. The Immigration and Naturalization

Service subsequently served the respondent with an Order to Show Cause

and Notice of Hearing (Form I-221) on December 15, 1993, charging him

with deportability under section 241(a)(2)(B)(i) of the Act, as an alien convicted of a violation of a law relating to a controlled substance, and section

241(a)(2)(A)(iii), as an alien convicted of an aggravated felony. On October

11, 1994, after a hearing, the Immigration Judge found the respondent

deportable as charged. The Immigration Judge also found the respondent

ineligible for section 212(c) relief, because he lacked 7 years of lawful

unrelinquished domicile.

The respondent timely filed his appeal before this Board on October 18,

1994. He does not dispute the finding of deportability under section

241(a)(2)(B)(i) of the Act, but argues that the Immigration Judge improperly

classified his conviction as an aggravated felony, and thus that he is not

deportable under section 241(a)(2)(A)(iii) of the Act. He also challenges the

1 At the respondent’s hearing on October 11, 1994, the Immigration Judge took lengthy

testimony on the issue of the correct dates upon which the respondent was properly deemed to

have adjusted to a temporary resident and to a lawful permanent resident. We concur in the

Immigration Judge’s conclusion that both dates were incorrectly recorded on the Respondent’s

Alien Registration Receipt Card (Form I-551). The proper date upon which the respondent is

deemed to have acquired temporary residence is April 27, 1988, the fee stamp date on his

Application for Status as a Temporary Resident (Form I-687). 8 C.F.R. § 245a.2(s) (1995). The

proper date upon which the respondent is deemed to have acquired lawful permanent residence

is September 6, 1991, the date of filing of his Application to Adjust Status from Temporary to

Permanent Resident (Form I-698). 8 C.F.R. § 245a.3(m) (1995).

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Immigration Judge’s denial of section 212(c) relief. The respondent argues

that he is statutorily eligible for relief pursuant to section 212(c) because he

can establish lawful unrelinquished domicile. In particular, the respondent

argues that his status became lawful in 1986, when section 245A of the Act, 8

U.S.C. § 1255a (Supp. IV 1986) went into effect, and thus, he began his lawful unrelinquished domicile at that time. Alternatively, in a subsequently

filed motion to remand, he argues that his lawful unrelinquished domicile

began on April 27, 1988, the date that he became a temporary resident pursuant to section 245A.

III. DEPORTABILITY FOR AGGRAVATED

FELONY CONVICTION

The respondent argues that his conviction for the sale of marihuana is not

an aggravated felony because under Minnesota law, such convictions are not

treated harshly. As an example, he argues that Minnesota law provides for

reduction of his conviction to the status of a misdemeanor upon successful

completion of his probation.

We conclude that the respondent’s arguments in this regard are without

merit, and that the Immigration Judge properly found that the respondent’s

conviction constitutes an aggravated felony. The Act defines an “aggravated

felony” to include “any illicit trafficking in any controlled substance (as

defined in section 102 of the Controlled Substances Act), including a drug

trafficking crime (as defined in section 921 of title 18, United States Code)”

and states that “[s]uch term applies to offenses described in the previous sentence whether in violation of Federal or State law.” Section 101(a)(43) of the

Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993). The term “any illicit trafficking

in any controlled substance” is commonly defined as any unlawful trading or

dealing in any controlled substance. Matter of L-G-, 21 I&N Dec. 89 (BIA

1995); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). The respondent was

convicted on August 6, 1993, of unlawfully selling marihuana in violation of

Minnesota Statutes § 152.025, subdivision 1, and was sentenced to 1 year and

1 day in prison. His offense involved a controlled substance as defined in

section 102 of the Controlled Substances Act. See 21 U.S.C. § 812(c), schedule I(c) (1988 & Supp. V 1993). The sale of marihuana clearly involves the

unlawful trading or dealing in a controlled substance. The offense is a felony.2 Thus the respondent’s conviction is “illicit trafficking” and constitutes

an aggravated felony as defined in section 101(a)(43) of the Act.

In response to the respondent’s argument that his conviction might be

reduced to a misdemeanor upon the successful completion of his probation,

we note that, for deportation purposes, the respondent is subject to a final felony conviction. It is well established that a conviction attains a sufficient

2 “Felony” means a crime for which a sentence of imprisonment for more than one year may

be imposed. Minn. Stat. Ann. § 609.02, subd. 2 (1994).

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degree of finality for immigration purposes when direct appellate review of

the conviction has been exhausted or waived. See Matter of Ozkok, 19 I&N

Dec. 546, 522 n. 7 (BIA 1988). The availability of post-conviction motions or

other forms of collateral attack does not affect the finality of the conviction

for immigration purposes, unless and until the conviction has been overturned pursuant to such a motion. See Okabe v. INS, 671 F.2d 863, 865 (5th

Cir. 1982); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert.

denied, 423 U.S. 1050 (1976); Matter of Gabryelsky, 20 I&N Dec. 750, 752

(BIA 1993); Matter of Adetiba, 20 I&N Dec. 506, 508 (BIA 1992). Therefore, the possibility that the respondent may seek to reclassify his conviction

as a misdemeanor does not alter our conclusion that his conviction constitutes an aggravated felony.

Further, even if the respondent’s conviction were reclassified as a misdemeanor, a misdemeanor conviction under state law may still be an aggravated

felony for purposes of section 101(a)(43) of the Act. Even where an offense

is not designated as a felony, it may nonetheless be a “drug trafficking crime”

(and therefore “illicit trafficking” and an “aggravated felony”) if it is analogous to an offense punishable under one of the federal acts specified in 18

U.S.C. § 924(c)(2) (1994), and the offense to which it is analogous is a felony

under federal law. Matter of Davis, supra, at 541-43. The respondent’s conviction for the sale of marihuana is analogous to the offense of distribution of

a controlled substance under the Controlled Substances Act. See 21 U.S.C.

§ 841(a)(1) (1994). That offense constitutes a felony under federal law, as the

maximum term of imprisonment authorized exceeds 1 year. See 21 U.S.C.

§ 841(b) (1994); 18 U.S.C. § 3559 (1994). Thus, even if the respondent’s

conviction were to be classified as a misdemeanor under Minnesota state law,

it is a “drug trafficking crime,” and therefore, it constitutes “illicit trafficking” and an “aggravated felony” under section 101(a)(43) of the Act.

IV. ELIGIBILITY FOR SECTION 212(c) WAIVER

A waiver of inadmissibility under section 212(c) of the Act is generally

available to aliens who have been 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 7

consecutive years in the United States. This form of relief is also available to

lawful permanent residents who have not departed the United States and who

are in deportation proceedings. Francis v. INS, 532 F.2d 268 (2d Cir. 1976);

Matter of Silva, 16 I&N Dec. 26 (BIA l976); see also Tapia-Acuna v. INS,

640 F.2d 223 (9th Cir. 1981). Thus, eligibility under section 212(c) of the

Act requires that an alien (1) be lawfully admitted for permanent residence,

and (2) have 7 consecutive years of lawful unrelinquished domicile.

The respondent became a lawful permanent resident on September 6,

1991, and thus satisfies the first requirement. Only the second requirement,

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whether the respondent has established 7 years of lawful unrelinquished

domicile for section 212(c) purposes, is at issue in this case.

The Board has held that the acquisition of lawful domicile for purposes of

eligibility under section 212(c) of the Act must be subsequent to the date of

admission as a lawful permanent resident. Matter of Anwo, 16 I&N Dec. 293

(BIA 1977), aff’d on other grounds, 607 F.2d 435 (D.C. Cir. 1979); Matter of

S-, 5 I&N Dec. 116 (BIA 1953). In 1991, the Attorney General promulgated

8 C.F.R. § 212.3(f)(2) (1991). The regulation states in part:

(f) Limitations on discretion to grant an application under section 212(c) of the Act. A district director or Immigration Judge shall deny any application for advance permission to

enter under section 212(c) of the Act if:

(2) The alien has not maintained lawful permanent resident status in the United States

for at least seven consecutive years immediately preceding the filing of the application;

This provision appeared in the revisions to 8 C.F.R. § 212 published on

October 3, 1991, in the form of an interim rule with request for comments. 56

Fed. Reg. 50,033-34 (1991). The Summary to this rulemaking states that the

rule “amends 8 CFR part 212 to implement sections 511 and 545 of the Immigration Act of 1990, Public Law No. 101-649, 104 Stat. 4978, 5052, 5061

(1990) (IMMACT).” The Supplementary Information discusses such subjects as eligibility restrictions on certain aggravated felons and the definition

of the term “admissions,” but offers no specific information on 8 C.F.R.

§ 212.3(f)(2) itself. Thus, even if we were inclined to consult the regulatory

history to this provision, if the language of the provision were ambiguous or

unclear, we would not be able to do so. We are obliged to construe the language of this provision as it appears.

The Board is bound to uphold agency regulations. The Board and Immigration Judges (except as to the specific authority provided by statute) only

have such authority as is created and delegated by the Attorney General. See

section 103 of the Act, 8 U.S.C. § 1103 (1994); 28 U.S.C. §§ 503, 509, 510

(1994); Matter of Anselmo, 20 I&N Dec. 25, 30 (BIA 1989); Matter of

Medina, 19 I&N Dec. 734, 742, 746 (BIA 1988). Under section 103(a) of the

Act, the Attorney General has the authority to issue regulations, and her

determinations with respect to all questions of law are controlling. A regulation promulgated by the Attorney General has the force and effect of law as to

this Board and Immigration Judges. See sections 103(a), 236(a), 242(b) of the

Act, 8 U.S.C. §§ 1103(a), 1226(a), 1252(b) (1994); 8 C.F.R. § 3.0 (1995); 28

C.F.R. Part 24 (1995); Matter of Anselmo, supra, at 30; Matter of Torres, 19

I&N Dec. 371, 375 (BIA 1986); Matter of Valdovinos, 18 I&N Dec. 343, 345

(BIA 1982); Matter of Bilbao-Bastida, 11 I&N Dec. 615, 617 (BIA 1966),

aff’d, 409 F.2d 820 (9th Cir.), cert. dismissed, 396 U.S. 802 (1969); Matter of

Tzimas, 10 I&N Dec. 101, 102 (BIA 1962). Regulations in effect have the

force of law. United States v. Nixon, 418 U.S. 683, 695-96 (1974); Accardi v.

Shaughnessy, 347 U.S. 260, 265 (1954).

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The respondent suggests that the United States Court of Appeals for the

Eighth Circuit, in which this case arises, has indicated that it might be willing

to consider that the 7 years of lawful unrelinquished domicile need not begin

at the time lawful permanent residence is acquired. Although we are bound

by a circuit court’s precedents when adjudicating cases arising within that

circuit, see, e.g., Matter of Anselmo, supra, at 30, we do not agree that there is

a controlling case in the Eighth Circuit.

The respondent points to Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir.

1994), in support of his position. In that case, however, the court never

reached the issue of whether temporary residence could be counted towards

the 7 years of lawful domicile. Instead, it found that, even if temporary residence were included, the respondent would not have satisfied the 7-year

requirement at the time of his deportation hearing, and thus the Board did not

abuse its discretion when it dismissed the respondent’s argument on this

issue on appeal. Id. at 356 (remanding, inter alia, for consideration of whether

the respondent’s lawful permanent residence during the pendency of his

appeal rendered him eligible for section 212(c) relief). The Eighth Circuit has

not taken a position on this issue. We are bound by the regulation.

To be eligible for a section 212(c) waiver, an alien must have maintained

lawful permanent resident status in the United States for at least 7 consecutive years. 8 C.F.R. § 212.3(f)(2). An alien who adjusts his status to lawful

permanent residence under the legalization provisions of the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, is

deemed to have done so on the date of filing the application for permanent

residence, or the eligibility date, whichever is later. 8 C.F.R. § 245a.3(m)

(1995). The respondent became a lawful permanent resident on September 6,

1991, and thus he has failed to satisfy the regulatory requirement that he be a

lawful permanent resident for 7 consecutive years immediately preceding the

filing of his application.

ORDER:

The appeal is dismissed.

FURTHER ORDER:

This decision is referred to the Attorney

General for her review pursuant to 8 C.F.R. § 3.1(h)(1)(ii).

CONCURRING OPINION: Paul W. Schmidt, Chairman

I respectfully concur.

I concur in Parts I, II, and III of the majority opinion. I reluctantly concur

in Part IV of the majority opinion which concludes that we are bound to follow 8 C.F.R. § 212.3(f)(2) (1995) in cases arising outside the jurisdiction of

the United States Courts of Appeals for the Seventh and Ninth Circuits.

My reluctance is based on (1) my opinion that 8 C.F.R. § 212.3(f)(2) does

not represent the best view of the law; (2) the adverse practical consequences

of applying the regulation to cases such as this one while the issue is under

review by the Attorney General; and (3) my disappointment that we are

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unable to fashion a constructive solution to the administrative problems

caused by our decision. Our decision fails to provide any useful guidance on

the major legal question before the Board: Whether or not time spent in temporary resident alien status counts as “lawful unrelinquished domicile” for

purposes of section 212(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(c) (1994).

I write separately because I believe that the general rule that we must continue to follow a regulation that conflicts with rulings by the courts of appeals

in other jurisdictions is outmoded. In my view, it prevents us from fulfilling

our role as delegates of the Attorney General on important case-related issues

arising under the immigration laws. Therefore, it would be helpful if the

Attorney General were to address both the substantive issue involved and the

question of the proper procedure for the Board to follow should future situations of this type arise.

I. THE REGULATION IN QUESTION IS NOT A REALISTIC

INTERPRETATION IN LIGHT OF CURRENT

CASE LAW DEVELOPMENTS

Whatever might be the merits of the Board’s ruling in Matter of S-, 5 I&N

Dec. 116 (BIA 1953), the better view of the law is contained in the recent rulings of the Seventh Circuit in Castellon-Contreras v. INS, 45 F.3d 149 (7th

Cir. 1995), and Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995), and the

Ninth Circuit in Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995).

Those courts have found that an alien who was admitted to the United States

as a lawful temporary resident may count that time toward the lawful

unrelinquished domicile required for relief under section 212(c) of the Act. I

will refer to this rule as the “Castellon/Robles rule.”

For whatever reason, the Immigration and Naturalization Service (“INS”)

did not argue 8 C.F.R. § 212.3(f)(2) to either the Seventh Circuit or the Ninth

Circuit. Moreover, the Solicitor General did not authorize Supreme Court

review in either case.

In fact, there is no conflict among the circuits on this question. The Second

Circuit has long disagreed with the Board’s Matter of S- interpretation. See

Lok v. INS, 548 F.2d 37 (2d Cir. 1977). Additionally, the Eleventh Circuit

has stated in dictum that it will adopt an interpretation like the

Castellon/Robles rule. Melian v. INS, 987 F.2d 1521, 1525 n.6 (11th Cir.

1993).

As recently pointed out by the Fifth Circuit in Hussein v. INS, 61 F.3d 377,

380 (5th Cir. 1995), “no circuit has upheld the BIA’s view that an alien who

attains LPR through IRCA’s amnesty provisions does not become lawfully

domiciled until he attains LPR status.” Although not reaching the issue in

Hussein, the Fifth Circuit left little doubt that it finds unpersuasive the

Board’s current interpretation, as embodied in 8 C.F.R. § 212.3(f)(2).

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As a result of the foregoing rulings, the regulation that we follow in this

opinion is, as a practical matter, no longer good law in four major circuits and

is also likely to be rejected in the Fifth Circuit. Those jurisdictions that have

rejected the Board’s rule encompass the states of California, Florida, New

York, Illinois, and Arizona where many, probably the majority, of today’s

section 212(c) cases arise. In the foregoing circumstances, it seems likely that

the Attorney General will, and should, effect some change in the interpretation set forth in 8 C.F.R. § 212.3(f)(2).

II. THE PRACTICAL EFFECTS OF OUR DECISION ARE

UNFORTUNATE

Unfortunately, our decision today provides little in the way of helpful,

practical guidance to either the Immigration Judges or the public as to the

state of the law concerning section 212(c) eligibility. Nevertheless, we must

make clear the real consequences of our continuing to follow 8 C.F.R.

§ 212.3(f)(2) while this matter is being resolved by the Attorney General.

First, we will dismiss a number of currently pending appeals raising the

Castellon/Robles issue by respondents outside the Seventh, Ninth, and Second Circuits. This will require adversely affected respondents to pursue their

cases in federal court. The Government, in turn, will be required to defend the

regulation in court, in all probability without the benefit of the Attorney General’s ruling in this case.

Second, Immigration Judges outside the Seventh, Ninth, and Second Circuits will be required to pretermit the issue of section 212(c) eligibility for

temporary resident alien applicants in Castellon/Robles situations. This

could result in numerous unnecessary appeals, remands, and motions to

reopen in the event that the regulation is modified or overruled by the Attorney General or additional circuit courts.

Third, respondents outside the Seventh, Ninth, and Second Circuits, who

could benefit from the Castellon/Robles rule, but who are under final orders

of deportation, will have emergency stays of deportation and motions to

reopen denied by the Immigration Judges and by us. Such respondents will

be required to seek relief in the federal courts to maintain the status quo pending the Attorney General’s review.

Overall, our disposition of this case makes it likely that the important issue

involved will be resolved in federal court without the full benefit of the Attorney General’s review. It is also likely that a number of respondents who

potentially could benefit from the Castellon/Robles rule, but who are not able

to vindicate their rights in federal court, will be deported while the issue is

being decided by the Attorney General.

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III. THE FOREGOING PROBLEMS MIGHT HAVE BEEN

MITIGATED OR ALLEVIATED

I am disappointed that we were unable to develop an alternative that

would have mitigated or alleviated some of the foregoing problems while this

matter is pending review by the Attorney General.

For example, it might have been possible for the Board to announce a policy of holding appeals presenting the Castellon/Robles issue in abeyance

pending the Attorney General’s resolution of the issue. It further might have

been possible for the Board to direct Immigration Judges to preserve the issue

by considering the merits of section 212(c) applications from respondents

outside the Seventh, Ninth, and Second Circuits who would be covered by

the Castellon/Robles rule.

The INS has been aware of the problem with 8 C.F.R. § 212.3(f)(2) since

Castellon was decided in February 1995. Alternatively, it might have been

possible for the INS either to have (1) sought an emergency suspension of 8

C.F.R § 212.2(f)(2) to allow us to decide the issue on its merits; or (2)

engaged in rulemaking to modify the regulation in light of the

Castellon/Robles rulings. It still would be possible for the Attorney General

to act quickly to suspend the rule and allow the Board to decide the substantive issue.

IV. CONCLUSION

I reluctantly conclude that the we are bound to follow 8 C.F.R.

§ 212.3(f)(2) outside the Seventh, Ninth, and Second Circuits. Under these

circumstances, certification to the Attorney General appears the only way of

achieving eventual harmony between the appellate court rulings and the conflicting regulation.

Unfortunately, such a course of action causes real practical problems in

the efficient administration of the immigration laws. Therefore, I can only

hope that the Attorney General’s review will be expeditious and will provide

guidance that will assist this Board in responding not only to these cases, but

also in responding to similar situations involving regulations that might arise

in the future.

For the foregoing reasons, I reluctantly concur in Part IV of the majority

opinion.

CONCURRING OPINION: Lauri S. Filppu, Board Member, in

which Fred W. Vacca, Board Member, joined

I join the majority opinion. I write separately to respond to several contentions advanced by the dissenting opinions. I understand the silence of the

majority, in the face of these contentions, to reflect a rejection of them for

diverse reasons such that a collective and unanimous response may not be

possible. I believe, however, that some response is in order so that no one will

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misconstrue the majority’s silence as tacit acceptance of the force of those

contentions.

Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)

(1994), as redefined by case law, provides a discretionary waiver of many

grounds of deportation and exclusion to an alien “lawfully admitted for permanent residence” who has “a lawful unrelinquished domicile of seven consecutive years” in the United States. See Francis v. INS, 532 F.2d 268 (2d

Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976); see also

Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981). The question in this case

is whether an alien is eligible for relief, such that an exercise of discretion one

way or the other is in order, if the alien needs to count time as a lawful temporary resident toward the “lawful unrelinquished domicile” requirement. The

majority appropriately rules that 8 C.F.R. § 212.3(f)(2) (1995) forecloses this

Board from granting section 212(c) relief if the “alien has not maintained

lawful permanent resident status in the United States for at least seven consecutive years immediately preceding the filing of the application.” (Emphasis added.)

The regulatory history of 8 C.F.R. § 212.3(f)(2) does not make clear

whether the regulation reflects an interpretation of lawful domicile or

whether it merely imposes a limit on discretion in granting 212(c) relief. The

heading for 8 C.F.R. § 212.3(f) is titled, “Limits on discretion to grant an

application under section 212(c) of the Act,” and could be read as including

both eligibility and discretionary limits on the circumstances under which

212(c) relief can be granted. The Attorney General has the authority to

impose such limits on the exercise of discretion. See Fook Hong Mak v. INS,

435 F.2d 728 (2d Cir. 1970) (upholding Attorney General regulation that precluded transits without visas from adjusting their status pursuant to section

245 of the Act because the regulation was rationally related to the statute).

As suggested by the dissenting opinions, the regulation more likely should be

viewed as an interpretation of lawful domicile, because it appears to codify

the approach set forth for over 40 years in cases such as Matter of Kim, 17

I&N Dec. 144 (BIA 1979); Matter of Newton, 17 I&N Dec. 133 (BIA 1979);

Matter of Anwo, 16 I&N Dec. 293 (BIA 1977), aff’d on other grounds, 607

F.2d 435 (D.C. Cir. 1979); and Matter of S-, 5 I&N Dec. 116 (BIA 1953). In

either case, the regulation imposes an affirmative limit on the authority to

grant relief under section 212(c).

In addition, even if the statutory interpretation embodied in this case law

were ultimately determined to be at odds with the scope of the “lawful

unrelinquished domicile” language of the statute, the dissenting opinions

have not adequately explained how this Board could ignore the regulation as

a possible limitation on the exercise of discretion alone. However unlikely it

may be, the regulatory history does not foreclose this as a basis for the regulation, and there is no claim that the regulation has been superseded by a subsequent statutory enactment. Under these circumstances, and as subordinate

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officers under the Attorney General, I would think it necessary to negate all

possible grounds for a regulation were we ever able to decline to follow one.

With respect to the matters they do address, the dissenting opinions offer

various theories for declining to follow the regulation as a codification of past

Board case law, while the Chairman’s concurring opinion laments our inability to offer an interpretation of the statutory language independent of the regulation. I have no quarrel with the notion that the significant changes in the

Immigration and Nationality Act, occurring from about 1980 onward, and

the recent circuit court rulings on the scope of “lawful unrelinquished domicile” would ordinarily warrant a thorough reexamination by the Board of the

rule first laid down in Matter of S-, supra. But I find it inappropriate to speculate on the outcome of such a reexamination, because the regulation restricts

our authority irrespective of what might otherwise be our independent

assessment of the statutory language in today’s environment. Moreover, I

find the arguments for our declining to follow the regulation to be particularly unpersuasive.

1. The dissenting opinions contend that the Board should consider itself

free to ignore the regulation in part because the literal language of the provision applies to district directors and Immigration Judges, and not specifically

to the Board. This argument is easy to reject. It would not only be contrary to

the spirit and overall intent of the regulation issued by our superior officer,

the Attorney General, but it would create an administrative nightmare in its

implementation.

On the strength of the regulation, Immigration Judges could properly

decline to accept evidence bearing on the discretionary side of the waiver in

cases involving aliens who use temporary residence time as part of the

required 7 years. Indeed, Immigration Judges who took such evidence would

be wasting their time, as the regulation forecloses grants of relief to such

aliens. But, under the reasoning of the dissenting opinions, the Board would

not similarly be foreclosed, and we could find these aliens eligible for relief

on appeal. Unfortunately, without evidence bearing on the discretionary

issues, we would be forced to remand the cases back to the Immigration

Judges for the taking of evidence. But, once back on remand before the Immigration Judges, the aliens would again be foreclosed from obtaining relief

under the literal terms of the regulation, and the dissents do not claim that

Immigration Judges would be able to rely on our remand orders to override

the regulatory direction of the Attorney General. Thus, even assuming that

the Immigration Judges would hold the evidentiary hearings required by the

remand orders that would flow from the position argued by the dissenting

Board Members, the aliens would be forced to take further appeals to the

Board to obtain discretionary rulings on their cases. In the process, we would

very likely be deprived of the initial assessments of the Immigration Judges

on the merits of the claims and on important collateral determinations, such

as credibility, unless of course we were to direct the Immigration Judges to

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offer advisory opinions on these subjects. In any event, it could often take

two administrative appeals for an alien to get around the regulatory prohibition applicable to Immigration Judges.

The dissents’ suggestion would create confusion, result in the wasted and

inefficient use of precious Immigration Judge hearing time in an already

overburdened adjudicatory system, and force the parties through a prolonged, costly, and artificial process. Their suggestion is designed to circumvent the obvious implications of a regulation that, reasonably construed,

binds the Board as well as Immigration Judges. While there may be room reasonably to disagree with the policy underlying the rule, that policy disagreement does not provide adequate grounds for contorting and unreasonably

construing the regulation as it relates to our authority.

The approach suggested by the dissenters, thus, is inconsistent both with

the intent of the regulation and with the maintenance of a sensible

adjudicatory system. Consequently, when properly interpreted, 8 C.F.R.

§ 212.3(f)(2) is a specific limitation on the Board’s authority within the

meaning of 8 C.F.R. § 3.1(d)(1) (1995), and not simply a restriction on district directors and Immigration Judges.

2. The dissenting opinions also suggest that the regulation was promulgated in violation of the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553 (1994) (“APA”). The regulation,

however, was promulgated as part of a package that included changes

required by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.

4978. It was issued as an interim rule with request for comments, and was

accompanied by a specific invocation of the “good cause” exception to the

normal notice and comment provisions of the APA. Moreover, this Board has

never before purported to undertake the responsibility of assessing regulatory compliance with the APA, and I believe it unwise even to begin a practice of making observations in this area where we lack expertise. We

ourselves are exclusively a creature of the Attorney General’s regulations,

and we have properly left it to the courts to resolve questions of APA

compliance.

Aside from our lack of authority and expertise on APA questions, I find

little value in our offering speculation on this subject. Even if there were a

technical defect in the promulgation of the regulation, the Attorney General

has ample rulemaking ability to correct any problems in relatively short

order. Thus, if the Attorney General wants this restriction on section 212(c)

relief, this Board is ill positioned to decline to follow that guidance on technical APA grounds.

3. The dissenting opinions also claim that the regulation is in conflict with

the plain language of the statute, as construed by several courts of appeals,

and that we are therefore free to ignore the terms of the regulation. A

response to this contention requires a more detailed understanding of the

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reasons behind our long-standing ruling, first announced in Matter of S-,

supra, and of why some courts have erred in finding that construction to be

untenable.

It is important at the outset to understand both why Matter of S- reflected a

reasonable interpretation of the statute at the time it was decided, and why the

courts that have criticized Matter of S- have misunderstood its foundations.

That 1953 decision analyzed statutory changes, made by the then newly

enacted Immigration and Nationality Act of 1952, to the Seventh Proviso of

section 3 of the 1917 Immigration Act, the predecessor to section 212(c) of

the 1952 Act. It concluded that for purposes of section 212(c) of the Act, the

requirement that an alien be returning to 7 years of “lawful unrelinquished

domicile” required the alien to have resided in the United States for 7 consecutive years subsequent to admission for permanent residence.

Notwithstanding the claims made in dissent today that the statute is clear,

the phrase “lawful unrelinquished domicile” has no obvious meaning in the

immigration law context. It is an ambiguous phrase that must be construed in

relation to other immigration provisions. While the term “domicile” can be

understood without reference to other provisions of the Act, determining

when a domicile is “lawful” can only be done in relation to other concepts,

and even then the history of litigation over this question suggests that there

are several reasonable views. But even conceding that recent legislative

changes have given potentially broader meaning to the concept of “lawful”

domicile, the Board in 1953 was faced with construing an ambiguous statute,

and it properly looked to both the statutory language and the legislative history to give meaning to the words used by Congress.

Much of the debate over the years has centered on the import of a Senate

Report, prepared prior to the 1952 Act, which had studied the immigration

laws and which made various suggestions for revisions. That Report noted a

“suggestion” that had been made in order to make clear that the waiver contained in the Seventh Proviso would only apply to lawful permanent residents

who had been domiciled in the United States for 7 years. That “suggestion”

was that the words “established after a lawful entry for permanent residence”

should be inserted into the text of the Seventh Proviso to qualify the domicile

required for eligibility. See S. Rep. No. 1515, 81st Cong., 2d Sess. 381-84

(1950) (hereinafter “Senate Report 1515”). Senate Report 1515 expressed no

specific disagreement with the ”suggestion," but its discussion immediately

proceeded to make a formal “recommendation” that the Seventh Proviso be

limited to “lawful permanent residents who are returning to a lawful domicile

of seven consecutive years after a temporary absence abroad.” Id. at 384.

The exact language of the “suggestion” never appeared in the final text of

section 212(c) when it was enacted in 1952. The Board’s 1953 ruling in Matter of S-, however, was consistent with that unenacted “suggestion.”

The United States Court of Appeals for the Second Circuit interpreted the

omission of the “suggestion,” specifically the phrase “established after a

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lawful entry for permanent residence,” from the statute to indicate that Congress did not intend the 7 years of lawful domicile to accrue only after admission for permanent residence. Lok v. INS, 548 F.2d 37 (2d Cir. 1977). The

Board, however, declined to follow the reasoning of that court in cases arising outside of the Second Circuit. Matter of Anwo, supra.

As the Second Circuit’s Lok ruling demonstrated, there are ambiguities in

the legislative history, as well as in the statutory language, and the thoroughness of the analysis in Matter of S- in both respects may have left something

to be desired. Nevertheless, the Board’s reading of the legislative history,

while not the only plausible reading, was sound, even if not well articulated.

See, e.g., Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979). First, I do not

read the legislative history to reflect that Congress rejected the substance of

the “suggestion” described in Senate Report 1515. Second, given the structure of the Act in 1952, it was unnecessary for Congress to add the phrase

“established after a lawful entry for permanent residence” to the text of the

statute, because even without that language, the statute would most appropriately be read to limit the application of section 212(c) to those who had established lawful domicile by virtue of 7 consecutive years as lawful permanent

residents.

With the exception of a small number of nonimmigrant classes, only lawful permanent residents would have been able to be both domiciled in the

United States and in lawful status in 1952.1 This group of nonimmigrants

included foreign diplomats enjoying diplomatic immunity and designated

foreign representatives to international organizations. Sections 101(a)(15)

(A), (G) of the Act, 8 U.S.C. § 1101(a)(15)(A), (G) (1952). Congress was

well aware of these special categories, and elsewhere enacted special legislation to cover their circumstances. E.g., section 102 of the Act, 8 U.S.C.

§ 1102 (1952) (exempting many diplomats and foreign representatives from

exclusion and deportation grounds). Given the attention paid by Congress to

these special nonimmigrant categories elsewhere in the Act, it is highly

unlikely that Congress deliberately intended to accord them benefits under

section 212(c), without making any mention of that fact.

What is much more likely, in my judgment, is that the 1950 Senate Committee which studied the immigration laws believed its “recommendation”

1 To establish domicile, an alien must be physically present in the United States and intend to

make the United States his or her home for the indefinite future. Matter of Sanchez, 17 I&N

Dec. 218, 221 (BIA 1980). Most nonimmigrants are required to maintain a foreign residence

which they have no intention of abandoning, or must be here for a temporary purpose, and thus

could not lawfully be domiciled in the United States. There was, and is today, a small group of

nonimmigrants who could have an intent to remain in the United States indefinitely, and thus

could maintain domicile in the United States, e.g., diplomats, foreign government

representatives, treaty traders, and media representatives. See Castillo-Felix v. INS, supra, at

464. However, as one court reasoned, it seems that if Congress had “intended to benefit only

this small and rather exclusive group of nonimmigrants in addition to aliens with permanent

resident visas . . . it would have said so more clearly.” Id.

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(Senate Report 1515, at 384, para. “e”) to be consistent with the “suggestion”

which had been discussed, in positive terms, in the paragraph preceding the

“recommendation.” Congress omitted the phrase that was “suggested” in

Senate Report 1515 from the final version of section 212(c) because it perceived that phrase as being redundant language, once it inserted the word

“lawful” as a further qualification or condition respecting the unrelinquished

domicile needed to obtain section 212(c) eligibility. The “suggestion” was

not “rejected,” as the Second Circuit believed in Lok v. INS, supra, at 40-41.

Rather, Congress believed it was adopting the substance of the “suggestion”

through the language it actually used. Thus, the language that Congress ultimately enacted in section 212(c) is consistent with the “suggestion” in Senate

Report 1515 of limiting section 212(c) eligibility to those who had established lawful domicile for 7 years subsequent to acquisition of lawful permanent resident status.

Moreover, we have revisited our analysis in Matter of S-, supra, on several

occasions and have consistently determined that the conclusion reached in

that case properly reflected the intent of Congress at the time of the enacting

legislation. See Matter of Kim, supra; Matter of Newton, supra; Matter of

Anwo, supra. In particular, we have noted that Congress intended the changes

made with the 1952 Act to restrict the scope of the Seventh Proviso. See Matter of Newton, supra (analyzing Senate Report 1515 again). The Board’s consistent view that the 7 years of lawful domicile accrues only subsequent to

acquisition of lawful permanent resident status is consistent with restricting

eligibility for section 212(c).

Indeed, if Congress had disagreed with the holding in Matter of S-, it could

have revised the statute to clarify its position. Yet, since that decision was

rendered in 1953, Congress has not made any changes to section 212(c) that

indicate disagreement with our long-standing interpretation. This is so,

despite the fact that we have consistently declined to extend the Second Circuit’s Lok rule elsewhere, and despite other changes that have been made to

the text of section 212(c).

The nature of the relief provided in section 212(c)—a waiver of an exclusion or deportation ground and the permission to continue to live in the

United States—also supports our prior holdings on the interpretation of lawful domicile. To be eligible for a waiver under section 212(c) of the Act, one

must be a lawful permanent resident and must show lawful unrelinquished

domicile of 7 years. Other forms of relief that allow aliens to remain in the

United States permanently impose more significant eligibility requirements.

For example, suspension of deportation, like section 212(c), requires a term

of residence in the United States, but, unlike section 212(c), it also requires a

showing of good moral character during that residence and a showing that

deportation would result in either extreme hardship or exceptional and

extremely unusual hardship to the alien or to certain relatives. See section

244(a) of the Act, 8 U.S.C. § 1254(a) (1994). Although the eligibility

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requirements for section 212(c) relief are relatively minimal, the waiver is

only available to a select group of persons who have demonstrated significant

ties to the United States, namely, lawful permanent residents.

Congress, in its revisions to the immigration laws in 1952, sought to eliminate certain abuses that it perceived with respect to these forms of permanent

relief. See, e.g., Senate Report 1515, at 381-84 (addressing the Seventh Proviso, which was the predecessor to section 212(c)), 595-603, 609-11

(addressing suspension of deportation). The Board’s past construction of the

ambiguous terms of section 212(c) is consistent with, and does not undermine, this legislative purpose.2 The position the Board adopted in Matter of

S-, supra, that only aliens who have been lawful permanent residents for 7

years can be eligible for 212(c) relief, had the practical effect of harmonizing

section 212(c) and suspension of deportation. The position adopted in Matter

of S- renders more significant the threshold eligibility requirements for a

212(c) waiver and consequently is more consistent with the treatment in

other provisions of the Act that provide permanent relief from deportation.

See Matter of Anwo, supra, at 297-98.

Our long-standing rule that only aliens who have been lawful permanent

residents for 7 years can be eligible for 212(c) relief is thus supported by the

legislative history, by the limited potential scope of the statute when originally enacted, and by comparison to other forms of permanent relief from

exclusion or deportation.

There have been substantial changes to the Act in recent years, and there

clearly are more categories of aliens who can argue now that they can be both

lawfully here and domiciled here, than was the case in 1953. But that fact at

most argues for a reexamination of Matter of S-. It does not establish that

ambiguous statutory language is now clear, nor that a reasonable interpretation of the statute adhered to for over 40 years, and now reflected in a regulation, is at odds with the plain language of the statute.

Congress did use different phrases when it enacted the “lawfully admitted

for permanent residence” and the “lawful unrelinquished domicile” requirements of the statute. But we have not equated these phrases; the

“unrelinquished domicile” requirement does have an independent meaning.

See Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). The Board for decades,

however, has construed the word “lawful” to restrict the immigration status

that would allow an alien’s domicile to be considered “lawful,” largely

because of the extremely limited possible scope of this concept in years past

2 Consider, by way of illustration, the case of an alien who spent 6 years in the United States

as a nonimmigrant treaty trader and 1 year as a lawful permanent resident before committing a

deportable offense. To obtain suspension of deportation, this alien would need, among other

things, to meet the extreme hardship requirement of section 244(a)(1) of the Act. If, however,

his 6 years as a treaty trader counted toward the “lawful unrelinquished domicile” requirement

of section 212(c), he would immediately be eligible for that relief with no other significant

limitations.

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and the other reasons set forth above. Today, the possible range of qualifying

statuses has increased meaningfully, and it would be possible to give even

greater independent content to these two statutory phrases.

The question that arises, in my view, is whether an interpretation of the

statute that was reasonable for so many years now becomes unreasonable, not

because the statute in question has been amended, but because surrounding

provisions have been amended in such a way as to create respectable arguments for a new construction of the unchanged, but ambiguous statutory

phrase. I believe the correct answer lies in the fact that the statute remains

ambiguous.

As Matter of S- continues to reflect one reasonable interpretation of the

ambiguous language of section 212(c), its codification in a regulation cannot

be improper. As a consequence, the entire premise of the dissenting opinions’

attack on the Attorney General’s regulation fails. It is therefore unnecessary

to consider other questions posed by the dissents (such as the scope of our

authority if we were to conclude that a statute and a regulation were

incompatible).

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

There are two distinct but fundamental issues before the Board in this

case.

The first question is whether, as the Board first held in Matter of S-, 5 I&N

Dec. 116 (BIA 1953), the statutory language of section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), may be read to

require that the 7-year period of lawful domicile necessary to establish eligibility to apply for a waiver under that section begins to run only subsequent to

an individual’s acquiring lawful permanent resident status. At issue in that

regard is both the 1953 decision of the Board in Matter of S-, and 8 C.F.R.

§ 212.3(f)(2) (1995), a regulation first promulgated in 1991 by the Attorney

General1 which tracks the holding of Matter of S- and its progeny.

The second, and perhaps the more dispositive question is whether the

scope of the Board’s authority, as delegated by the Attorney General under 8

1 The regulation at 8 C.F.R. § 212.3(f), consisting of five subsections, was published as an

interim rule on October 3, 1991, following passage of the Immigration Act of 1990, Pub. L. No.

101-649, 104 Stat. 4918 (“1990 Act”). See 56 Fed. Reg. 50,033. The stated purpose of the

rulemaking at that time was, with regard to section 212(c), to implement a statutory amendment

which by its terms limited statutory eligibility to exclude an individual who actually had served

more than 5 years’ imprisonment for a conviction of an aggravated felony or felonies. The

specific subsections which reflect the new terms of the 1990 Act are 8 C.F.R. §§ 212.3(f)(4) and

(5), while the first three subsections, of which 8 C.F.R. § 212.3(f)(2) is one, only paraphrased

existing Board interpretations of what the statute required or afforded. As elaborated more

fully, infra, I conclude, therefore, contrary to Board Member Filppu’s equivocation concerning

the Attorney General’s purpose, that the promulgation of 8 C.F.R. § 212.3(f)(2) is no more than

an effort at codifying Matter of S-, supra.

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C.F.R. § 3.1(d) (1995)2 allows us, unless otherwise limited, to construe and to

act upon our construction of the governing statute. In particular, the issue presented is whether we may do this, notwithstanding that our construction may

be contrary to our own earlier precedents and an intervening regulation promulgated by the Attorney General.

The ultimate question that follows is whether, in the case before the

Board, we are “bound” by the Attorney General’s rule which purports to codify our precedent in Matter of S-, supra, and if we are bound, what deference

must we accord to such codification? On this critical question, the majority,

without reaching the substantive issue, would dismiss the instant appeal on

the grounds that the regulation is binding and there is no basis upon which we

may deviate from its terms.

This decision has prompted the filing of four separate opinions, two of

which are dissents in which a third member joins. In his concurring opinion,

the Chairman, while inclined to find that neither our decision in Matter of S-,

supra, nor the 1991 interim rule is a correct interpretation of the law, agrees

that our hands are tied and that we must abide by the 1991 rule because it is a

regulation promulgated by the Attorney General. An additional concurrence

from Board Member Filppu goes the opposite direction, and attempts to speculate upon an issue not even advanced by either party: that perhaps the Attorney General had some substantive discretionary basis for including the

language of 8 C.F.R. § 212.2(f)(3), other than to codify the Board’s ruling in

Matter of S-, supra.

For the reasons discussed below, I agree with the dissenting opinion of

Board Member Villageliu and joining Member Guendelsberger and would

exercise the authority delegated to us by the Attorney General, overrule Matter of S-, and find 8 C.F.R. § 212.3(f)(2) invalid on the grounds that it is

inconsistent with the statutory language which controls our determinations.

Under 8 C.F.R. § 3.1(d) and for the specific reasons elaborated below, I

would hold that we are empowered to find that a lawful permanent resident

may establish the required 7 years lawful unrelinquished domicile by counting time accrued after application for lawful temporary resident status.

Thus, I would sustain the appeal and remand for a full hearing on the merits of section 212(c) waiver eligibility and the exercise of discretion. In deference to the Attorney General, given the divergence of the opinion concerning

the scope of our ability to exercise our delegated power and the fact that the

regulation has not been struck down specifically by the various circuit courts

of appeals which have overruled or questioned the analysis underlying our

2 The regulation at 8 C.F.R. § 3.1(d) reads as follows:

Powers of the Board--(l) Generally. Subject to any specific limitation prescribed by this

chapter, in considering and determining cases before it as provided in this part the Board

shall exercise such discretion and authority conferred upon the Attorney General by law

as is appropriate and necessary for the disposition of the case.

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holding in Matter of S-, I believe it prudent to certify our decision in this case

to the Attorney General.

I. LAWFUL DOMICILE MAY BE ESTABLISHED

INDEPENDENT OF REQUIRING LAWFUL PERMANENT

RESIDENT STATUS

We confront first the question of whether an applicant for relief under section 212(c) of the Act, who at the time of application is a lawful permanent

resident of the United States, may establish an unrelinquished lawful domicile of 7 years as required by the statute without doing so exclusively on the

basis of holding lawful permanent resident status for the requisite 7-year

period. As to this question, I find that the unambiguous terms of the statute

make clear that “lawful unrelinquished domicile” of 7 years is an independent statutory eligibility requirement to be met by a lawful permanent resident

alien who wishes to apply for and be granted a waiver under section 212(c) of

the Act. The statute reads:

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) (other than paragraphs (3) and (9)(C). Nothing contained in this subsection shall limit the authority of the

Attorney General to exercise the discretion vested in him under section 211(b). The first

sentence of this subsection shall not apply to an alien who has been convicted of one or more

aggravated felonies and has served for such felony or felonies a term of imprisonment of at

least 5 years.

The language of the statute provides that lawful domicile may be established by a noncitizen who intends to dwell or reside in the United States and

establishes a dwelling or residence which is lawful under common usage as

well as under the immigration laws. To the extent that Matter of S-, supra,

compels the conclusion that only those persons lawfully admitted for permanent residence who have acquired 7 years’ domicile after having attained that

status qualify for the discretionary benefits of section 212(c), I find it to be

directly in conflict with the plain language of the statute.

In my view, the statutory language in the 1952 Act never compelled nor

supported the Board’s generalization of the conclusion it reached on the

particular facts in Matter of S-.3 Arguably, even then the statute called for

3 It is important to clarify exactly the fact situation addressed by the Board in Matter of S-,

supra. There, the respondent had been admitted for permanent residence only 4 years before the

Board’s decision, but had been domiciled in the United States before admission to permanent

residence. He argued that section 212(c) should apply to one returning to an unrelinquished

domicile of a total of 7 years which now was lawful, without regard to whether it had been

lawful for the entire 7-year period. What the Board rejected, then, really was a proposition that

the new statute be read to allow part of the requisite 7-year domicile not to have been lawful.

Manifestly, this was contrary to the amendment of the statute which altered the prior

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distinct definitions of the phrases “admitted for lawful permanent residence”

and “lawful unrelinquished domicile.” Nevertheless, given the legislative

history and the categories of persons able to establish “lawful domicile”

according to the common dictionary definition and the various categories

which existed prior to 1980, such an interpretation, even if it blurred the distinction in the plain statutory language used, was not wholly unreasonable.

Today, however, there have been significant changes in many aspects of the

statute and in the courts since our decision in Matter of S- and its progeny that

warrant clarification and the reversal of the holding in that decision.

My conclusions and those of the concurring and dissenting Board Members Schmidt and Villageliu joined by Guendelsberger are supported by several circuit courts of appeal.4 In particular, in Ortega de Robles v. INS, 58

F.3d 1355 (9th Cir. 1995), the United States Court of Appeals for the Ninth

Circuit ruled explicitly that the argument of the Immigration and Naturalization Service that Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979), which

found that requisite domicile “began when an alien was admitted for lawful

permanent residence,” still is controlling, must fail. Reading the statutory

language in the context of the statute as amended since the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, the

Ninth Circuit rejected the agency interpretation, finding that the statutory

scheme no longer supports it.5

requirements permitting domicile of any character to qualify an otherwise eligible applicant to

apply for the waiver. To the Board of the 1950’s, just as to the Ninth Circuit of the 1960’s

(discussed infra), considering this requirement to be coextensive primarily with the status of

lawful permanent residence, while not precise, was of little practical adverse consequence to

the lawfully resident alien.

4 It is curious that Board Member Filppu’s critique of the “dissenters” (and implicitly of the

circuit courts of appeal for the Second, Fifth, Seventh, Ninth, and Eleventh circuits with which

we concur), asserts that the meaning of the term “lawful unrelinquished domicile” as distinct

from “lawfully admitted for permanent residence” is not manifest. Indeed, Matter of S-, supra,

which Board Member Filppu purports to defend, finds the language of the statute to be plain.

Actually, the language of the decision creates its own ambiguity. On the one hand, the Board

states explicitly that “we come to the conclusion that this provision of law is available only to

those lawfully resident aliens who are returning to an unrelinquished domicile of 7 consecutive

years subsequent to a lawful entry.” Id. at 118 (emphasis added). This portion of the decision,

by its plain language does not require that the 7 years be accumulated subsequent to acquisition

of lawful permanent residence. It states merely that an applicant must be one (1) who is a lawful

resident alien; (2) who has an unrelinquished domicile of 7 consecutive years; which is (3)

subsequent to a lawful entry. On the other hand, the decision goes on to state: “In other words,

we construe the section to mean that the alien . . . must have resided in this country for 7

consecutive years subsequent to . . . lawful admission for permanent residence . . . .” Id. The

reasonable reconciliation of this ambiguity in Matter of S-, supra, is found in the specific

factual posture of that case as discussed in note 3, supra.

5 While the Ninth Circuit talks in terms of having deferred previously to the agency, in fact it

appears to have done so only because the alternate reading of the language of the statute

appeared at the time to amount to an almost exclusively an academic distinction ("'that a small

group of nonimmigrants [such as diplomats] could conceivably qualify as "lawfully" domiciled

. . . does not persuade us that "lawful" [in "lawful unrelinquished domicile"] should be defined

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This result is consistent with the much more explicit statutory construction

employed in Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995), in

which the Seventh Circuit considered whether the terms “lawfully admitted

for permanent residence” and “lawful unrelinquished domicile” had two different meanings, contrary to the Service’s interpretation. Id. at 152. The court

said that under governing principles of statutory review, it first “’must give

effect to the unambiguously expressed intent of Congress.’” Id. at 153 (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842-43 (1984)); see also Avelar-Cruz v. INS, 58 F.3d 338, 339 (7th

Cir. 1995). Under these principles, the court defers to a reasonable agency

interpretation only if the statute is silent or ambiguous. Id. at 153 (citing

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at

843-44).6 Thus, the court held:

Given that lawful domicile has a meaning distinct from LPR, we find no reason to equate the

two terms. We cannot defer to the BIA’s interpretation of section 212(c) because the plain

meaning of the term “lawful unrelinquished domicile” discussed above does not lead to

either an absurd result, or one at odds with Congressional policy. Section 212(c) was

designed to help aliens who are likely to have established strong ties to this country, something not requiring LPR status.

Id. at 153 (citations omitted).

Indeed, there is growing unanimity in the federal courts that the Board’s

past reading of section 212(c) as amended in 1952 is not a permissible one.

The Board’s policy of requiring that a section 212(c) applicant have 7 years

of lawful permanent residence imposes a requirement that is not included in

the statute by Congress and is ultra vires. West Virginia University Hospitals

v. Casey, 499 U.S. 83, 101 (1991); Romero v. INS, 39 F.3d 977 (9th Cir.

1994). To date, the Board’s interpretation that lawful domicile and permanent residence must accumulate concurrently for purposes of section 212(c)

eligibility has been rejected by a number of circuit courts of appeals.7 Moreover, neither the fact that our interpretation in Matter of S-, supra, has

without reference to the phrase 'lawfully admitted for permanent residence.') Ortega de Robles

v. INS, supra, at 1360 (quoting Castillo-Felix v. INS, supra at 464).

6 Under Chevron, if Congress has spoken to the precise question at issue and its intent is

clear, both the court and the agency must give effect to congressional intent and “that is the end

of the matter.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843.

If Congress has not addressed the precise issue, “the question for the court is whether the

agency’s answer is based upon a permissible construction of the statute.” Id.

7 For example, the Board’s interpretation has been criticized almost universally by those

circuit courts of appeals which have considered the issue. See Hussein v. INS, 61 F.3d 377, 380

(5th Cir. 1995) (not reaching the issue, but finding no circuit has upheld the Board’s view);

Prichard-Ciriza v. INS, 978 F.2d 219, 224 (5th Cir. 1992); Rosario v. INS, 962 F.2d 220 (2d

Cir. 1992) (a minor can establish domicile for section 212(c) through a parent and can be

credited with 7 years’ domicile even if he has not been a permanent resident for that long); Lok

v. INS, 681 F.2d 107 (2d Cir. 1982) (“Lok II”) (holding that while one need not be a permanent

resident for the entire 7 years, one must be a lawfully resident alien for that time); Lok v. INS,

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endured for 50 years, nor the existence of the 1991 regulation has any weight

in the face of the conclusion the rule is an ultra vires one. See Brown v.

Gardner, 513 U.S. 115, 119 (1994) (“legislative silence as to [an agency]

practice over the last 60 years” is trumped by the plain language of the statute); Demarest v. Manspeaker, 498 U.S. 184, 190 (l991) (long-standing

agency interpretation of a statute (according to the circuit court, interpretation had been in effect since 1900) is not entitled to deference, even where

reenacted without modification). Consequently, I would find that Matter of

S-, supra, is at odds not only with the plain language of the statute but also

with the expressed intent of Congress.8

II. THE BOARD IS AUTHORIZED TO EXERCISE THE

DELEGATED DISCRETION AND AUTHORITY CONFERRED

UPON THE ATTORNEY GENERAL BY LAW

As to the second question concerning our authority, I find the majority’s

reasoning is circular when it suggests that the Board is without authority to

consider and rule upon regulations promulgated by the Attorney General

because her determinations with respect to all questions of law are controlling. This begs the question. In fact, we have been delegated the authority of

the Attorney General to administer and enforce the Immigration and Nationality Act and related laws “subject [only] to any specific limitation.” 8 C.F.R.

§ 3.1(d) (emphasis added).

A. The Regulation is at Odds with the Plain Language of the Statute

Neither the interpretation of section 212(c) nor the result pressed by the

majority is consistent with the plain language of the statute. The Supreme

548 F.2d 37 (2d Cir. 1977) (“Lok I”) (same); see also Madrid-Tavarez v. INS, 999 F.2d 111 (5th

Cir. 1993); Graham v. INS, 998 F.2d 194 (3d Cir. 1993). Melian v. INS, 987 F.2d 1521,

1524-25 (11th Cir. 1993) (defining “lawful domicile” under section 212(c) without reference to

permanent residence, as “at least the simultaneous existence of lawful physical presence in the

United States and lawful intent to remain in the United States”); Brown v. INS, 856 F.2d 728,

731 n.5 (5th Cir. 1988) (finding that intent to remain, and thus lawful domicile, might begin as

of the date a nonimmigrant files an application for permanent residence).

8 A committee report cited by the Board in Matter of S-, supra, found that the pre-1952 law

allowed the Attorney General to waive the grounds of exclusion “under the specified

circumstances even though the alien had never been lawfully admitted to the United States.” Id.

at 118 (emphasis added). The report indicates that the subcommittee declined to restrict lawful

domicile to that acquired after admission for lawful residence, and instead recommended that

the two concepts of lawful permanent residence and lawful domicile be distinct. As early as

1977, the Second Circuit in Lok I analyzed the same language and concluded that this

legislative history did not support the Board’s decision in Matter of S-. The court stated that

since the Board did not indicate “any sound supporting reasons,” it was “baffled at the Board’s

conclusion that the [quoted paragraphs of the report], when read with the ‘plain language’ of the

statute, [led] inexorably to its decision.” Lok I, supra, at 41. Rather the Second Circuit found

that the Senate and the House Reports mandate a contrary result.

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Court law on this point is clear: even a long-standing agency regulation is not

entitled to deference if it conflicts with the plain language of the statute. See

Brown v. Gardner, supra; see also Demarest v. Manspeaker, supra. If we are

compelled to deny eligibility to categories of lawfully domiciled persons,

such as the respondent in the case before us, our decision would arguably

constitute at best an outdated, and arguably incorrect, interpretation of the

statute. At worst, if based upon 8 C.F.R. § 212.2(f)(3), we can anticipate that

the regulation and our ruling, consistent with its terms, will be found

erroneous.9

Reading the regulation and the scope of our authority to require our adherence or acquiescence to a reading (compelled by the rule) which the Seventh

and Ninth Circuits have rejected, and which other circuits such as the Fifth

have indicated their inclination to reject, is not reasonable.10 It can only lead

to a series of reversals by those circuit courts of appeals which have not yet

addressed the issue and which are likely to follow their sister circuits, not to

mention the human costs to otherwise qualified applicants and their families.

For these and the additional reasons stated by dissenting member Villageliu, I

believe we are bound to seek a resolution of this issue which would avoid this

futile allocation of time and resources by the Attorney General, the parties,

and the courts.

The Board’s function as the arbiter of an administrative immigration

appeals, empowered by the Attorney General to function within the Department of Justice, does not relieve us of an adjudicatory responsibility to

review the language of rules promulgated by the Attorney General together

9 While we are not expressly empowered by the regulations to determine violations of either

the Administrative Procedure Act or constitutional questions, we are authorized to interpret the

law and to take actions which give rational effect to the statutory and regulatory provisions at

issue in the cases which come before us. As discussed, the rule, and the policy it codifies,

improperly expand the requirements of section 212(c) and add the requirement, not contained

in the statute, that a section 212(c) applicant must have been a lawful permanent resident for 7

years. As the 1991 regulation created a new requirement, which affects substantive rights, it is

likely to be found a legislative rule which would necessitate notice and comment under the

Administrative Procedure Act. Since there was no emergency justifying implementation of the

rule immediately, the “good cause” exception of 5 U.S.C. § 553(d) to notice and comment

procedures would not apply. In sum, the rule arguably is invalid as having been improperly

promulgated.

10 I find it far more consistent with our delegated role for us to overrule both Matter of S- and

its restatement in the form of the 1991 regulation as being clearly at odds with the statute, than

to decline to act. See Matter of Kwun, 13 I&N Dec. 457 (BIA 1969, 1970) (in construing

regulations the Board must try to comport with and not to frustrate the intent of Congress, citing

Pierno v. INS, 397 F.2d 949 (2d Cir. 1968)). For us to act affirmatively rather than responsively

would result in applications of the law which are uniform and consistent nationwide. See

Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). In addition, it would allow us to provide

prompt and expeditious determinations which properly grant relief and do not provoke

ultimately successful equal protection challenges. See Garberding v. INS, 30 F.3d 1187 (9th

Cir. 1994); Francis v. INS, 532 F.2d 268 (2d Cir. 1976).

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with the governing statute. Here the language of the regulation is different

from that of the statute and imposes an additional requirement. As discussed

previously herein, the interpretation reflected in the regulation is without

foundation and has been rejected as ultra vires.

To follow the course proposed by the majority abdicates our responsibility

as an administrative agency to interpret the statute which governs our adjudications, contrary to Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., supra. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), faced

with an issue not dissimilar from that before us here, the Court differentiated

between two types of interpretive questions, noting that the “narrow legal

question whether the two standards are the same is, of course, quite different

from the question of interpretation that arises in each case in which the

agency is required to apply either or both standards to a particular set of

facts.” Id. at 448 (emphasis added).11 In the Board’s case, as a result of our

unique position as an impartial administrative appellate body within the

Department of Justice, I believe it is fair to say that we function as a “court”

within the agency. Our role in matters within our jurisdiction should include

both examining and correcting misinterpretations or misapplications of the

statute by components of our own agency.12

Indeed, this Board, acknowledging the principle underlying the analysis in

Cardoza-Fonseca, has stated: “It is a well-established rule of statutory construction that, in cases in which Congress includes particular language in one

section of a statute but omits that language in another . . . , a presumption

arises that the disparate inclusion and exclusion was intentional and purposeful.” Matter of Hou, 20 I&N Dec. 513, at 519-520 (BIA 1992) (citing INS v.

Cardoza-Fonseca, supra, at 449 (1987)).13 That principle is no less controlling here.

11 We have long recognized that the construction of administrative regulations calls into play

the same rules of interpretation as are applicable to the construction of statutes. Matter of

Yeung, 13 I&N Dec. 528, 532 (BIA 1970). Like the Supreme Court, we too are bound to

assume that legislative purpose is expressed by the ordinary meaning of the words used in a

statute. INS v. Cardoza-Fonseca, supra.

12 Administrative agencies may reverse long-standing agency policies by either

case-by-case adjudication or by rulemaking. Rust v. Sullivan, 500 U.S. 173 (1991); NLRB v.

Bell Aerospace Co. Div. of Textron. Inc., 416 U.S. 267, 294 (1974). The choice between

rulemaking and adjudication lies in the first instance within the agency’s discretion, even if the

new policy “represents a sharp break” from the agency’s prior construction of the applicable

statute. Rust v. Sullivan, supra, at 186.

13 Notably our decision in Matter of Hou, supra, also refers to another canon of statutory

interpretation “uniquely applicable to the immigration laws, which requires any doubts in

construing those statutes to be resolved in favor of the alien due to the potentially drastic

consequences of deportation.” Id. at 520. We would be well advised to apply this canon here as

well.

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B. It is Within Our Delegated Authority To Reinterpret The Law

and Modify or Overrule Our Precedents

There is precedent for the Board to review and construe regulations in

relation to current law. For example, in Matter of Kwun, 13 I&N Dec. 457

(BIA 1969, 1970), the Board reviewed 8 C.F.R. § 242.2(b) as then amended

by the Attorney General. In that situation, the Board found that the regulation

endorsed its prior decision in Matter of Au, 13 I&N Dec. 133 (BIA 1968).

Similarly, it is not unprecedented for the Board actually to take action contrary to the terms of a regulation. This is particularly true where the Board has

found the reading of a statute’s terms to differ with a regulation. In Matter of

Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993), the Board expressly did not

follow 8 C.F.R. § 3.1(b) and held that it no longer had authority to hear

appeals from in absentia deportation orders under section 242B of the Act, 8

U.S.C. § 1252b (Supp. V 1993). In that case, a regulation existed authorizing

the Board’s jurisdiction, yet the Board deferred not to its own regulation, but

to the language of the statute. The regulation subsequently was changed to

conform to the Board’s ruling.

Further, in Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994), the Board

appears to have overruled, without so stating, the jurisdictional provision of 8

C.F.R. § 242.2(d) (1994) limiting bond reconsideration to cases in which

there is a final order of deportation. Although the appeal may have been filed

before the deportation order became final, the Board decided the case, denying bond on its merits, rather than dismissing on jurisdictional grounds occasioned by the deportation order becoming administratively final. That

regulation remains in place today.

Moreover, here the actual language of the regulation in question neither

addresses nor specifically limits the powers of the Board on its face; it only

regulates district directors and Immigration Judges. It does not specifically

limit the authority of the Board under 8 C.F.R. § 3.1(d). This is notable

because where the Attorney General does choose to limit the exercise of her

discretion, the terms used in the regulations encompass all of the component

adjudicatory entities under her delegation.14 I do not wish to see the Board

voluntarily bind itself to the terms of a regulation which I believe exceeds the

mandate of the statute and unreasonably limits eligibility for discretionary

14 Compare 8 C.F.R. § 208.14(d)(1) (1995) (calling for mandatory denial of an application

for asylum by an applicant who, having been “convicted by a final judgment of a particularly

serious crime in the United States, constitutes a danger to the community”), which apparently

applies to a determination of any adjudicator at any level of interview, hearing, or review. See

also 8 C.F.R. § 208.16 (1995) (calling for denial of an application for withholding of

deportation), which tracks the language of the statute, without any differentiation among or

between adjudicators or levels of review. Further, 8 C.F.R. § 245a.3(g)(3) (1995) (addressing

applications for adjustment of status from temporary to permanent resident status)

demonstrates clearly that the Attorney General knows how to specify when she wishes literally

to bind all adjudicatory bodies under her authority. The regulation states that notwithstanding

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relief. Thus, I would find that the Board’s authority is not “specifically limited,” as contemplated by 8 C.F.R. § 3.1(d), with regard to our ability to interpret or to disregard 8 C.F.R. § 212.3(f)(2) or any of the other subsections of

212.3(f).

In any event, codification of our prior interpretation should not divest us of

authority to revisit that interpretation and to change it to comport with

amendments to the statute and decisions of those federal circuit courts of

appeal which have rejected that interpretation. The summary of the interim

rule and the Supplementary Information which precedes it in the Federal

Register make clear that the purpose of the rule was to implement changes

made by the Immigration Act of 1990, not to address the “lawful domicile”

issue.15 Moreover, as noted by Board Member Villageliu, the regulation calling for this controversial interpretation has no origin other than our holding in

Matter of S-, supra. To restrict our ability to modify or overrule our own precedent decision based upon only its adoption for codification, without more,

strains credulity.

Board Member Filppu attempts to make much of the dissenters’ mention

of this discrepancy, claiming that a literal reading would lead only to chaos.

However, there are many equally reasonable constructions of the impact of

this disparity short of such a doomsday scenario. For one, the Board exercises de novo review authority over many decisions of district directors and

over most decisions issued by Immigration Judges. For another, if as Board

Member Filppu posits, the regulation is absolutely binding, its failure to mention the Board suggests that its terms are no more than a form of deference to

the Board’s precedent decision in Matter of S-, supra, and should be modified

in accordance with modification of that decision.

Therefore, I am not persuaded that our hands are tied on account of the

regulation at issue. Consistent with our recognition of the principle in Matter

of Hou, supra, there is nothing to prevent the Board from engaging in such

legal interpretation, applying those principles of statutory construction, and

concluding that neither our decision in Matter of S-, supra, nor the regulation

can stand. Given our delegated authority to designate precedents which shall

be binding “in all proceedings involving the same issue or issues,” (8 C.F.R.

§ 3.1(g)), it is wholly consistent with the exercise of our discretion and

authority to review and act upon this regulation as appropriate and necessary

any other provision, the provisions of section 212(a) of the Act “may not be waived by the

Attorney General.” 8 C.F.R. § 245a.3(g)(3) (emphasis added).

15 Specifically, contrary to the speculations of concurring Board Member Filppu, the

Summary states that the rule was “necessary to ensure implementation of and regulatory

compliance with IMMACT [90].” 56 Fed. Reg. 50,033 (1991). The Supplementary

Information likewise discussed changes made by IMMACT 90. Nowhere in the summary or in

the supplementary information is there even a mention of 8 C.F.R. § 212.3(f)(2). There is no

explanation of the legal authority for this new paragraph or need for it. See 56 Fed. Reg.

50,033-34.

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to resolve cases coming before us. I believe we should do so in a manner that

results in a fair and uniform application of the law to all over whom we have

jurisdiction.

In my view, the preferred way to achieve such a result would be for us to

take the lead in adopting the holding of Ortega de Robles, supra, and the

rationale of Castellon-Contreras v. INS, supra, as the administrative precedent, rather than merely to passively follow, as, circuit by circuit, Matter of Sand ultimately the regulation are struck down. In this regard, I note that such

an approach is one consistent with the rationale of agency expertise which

underlies the concept of deference in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., supra.

III. CONCLUSION

We certainly are as accountable to the provisions of the Act as we are to

the regulations of the Attorney General. That is a particularly fair statement

here, where the regulation in question is no more than a generalized restatement of our own interpretation of the terms of the Act, and we find it necessary to modify or overrule it in order to conform to the statute. We also have a

duty to see that substantive rights under the Act are given priority and are not

sacrificed to an elevation of form over content. Consequently, I would act

now to overrule our prior decision in Matter of S-, and to find the regulation

inapplicable in the case of an applicant for relief under section 212(c) who

was first lawfully admitted as a temporary resident under section 245A of the

Act. I would hold that lawful domicile may be established according to its

commonly accepted dictionary definition, and that the requirement of 7 years

of unrelinquished lawful domicile under the statute is distinct from the

requirement of admission for lawful permanent residence.

DISSENTING OPINION: Gustavo D. Villageliu, Board Member, in

which John W. Guendelsberger, Board Member, joined

I respectfully dissent.

While I concur with most of the reasoning of the concurring opinion by

Board Chairman Schmidt in this case, I respectfully dissent from its conclusion that we are necessarily bound by 8 C.F.R. § 212.3(f)(2) (1995), and cannot recede from the interpretation of “lawful unrelinquished domicile” for

purposes of relief under section 212(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(c) (1994), as synonymous with lawful permanent residence adopted in Matter of S-, 5 I&N Dec. 116 (BIA 1953).

Section 212(c) of the Act requires that an alien be a lawful permanent resident returning to a lawful unrelinquished domicile of at least 7 years for eligibility. I read the statute narrowly to require the status of being a lawful

permanent resident, and a lawful unrelinquished domicile in the United

States of at least 7 years. The Board’s ruling equates lawful permanent

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residence with lawful unrelinquished domicile and thereby imposes the additional requirement that the 7 years of lawful unrelinquished domicile must

follow the admission as a lawful permanent resident. In choosing this

approach the Board reaffirms Matter of S-, supra, by finding itself bound by

the language of 8 C.F.R. § 212.3(f)(2). I disagree.

First of all, although our interpretation of “lawful unrelinquished domicile” in Matter of S-, supra, may have been originally sound, it has been rendered obsolete by the numerous subsequent statutory provisions enacted by

Congress which permit an alien to establish a lawful unrelinquished domicile

in the United States other than lawful permanent residence.1 Here, the

respondent is a permanent resident who was admitted into the United States

as a lawful temporary resident effective April 27, 1988. He had a right to be

domiciled in this country as of that date. Thus, he has met the statutory

requirements for applying for section 212(c) relief of both lawful permanent

residence and a lawful unrelinquished domicile of more than 7 years, even if

his eventual admission for lawful permanent residence took place on September 6, 1991, less than 7 years before his application for a section 212(c)

waiver of excludability. As noted by the concurring opinion, every court

which has reviewed this issue recently has come to the same conclusion. See

Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995); Ortega de Robles v.

INS, 58 F.3d 1355 (9th Cir. 1995); cf. Lok v. INS, 548 F.2d 37 (2d Cir. 1977).

The courts that have not yet had to reach the issue have also indicated that

they would reach the same result in cases involving the time accrued as a lawful temporary resident under the amnesty provisions of the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359

(“IRCA”). See Melian v. INS, 987 F.2d 1521, 1524-25 (11th Cir. 1993);

Prichard-Crizia v. INS, 978 F.2d 219, 223-24 (5th Cir. 1992). This trend suggests that the statutory language is clear and that it should control over a conflicting regulation.

The conflicting regulation, 8 C.F.R. § 212.3(f)(2), has no independent origin beyond our decision in Matter of S-, supra. It was added to the regulations on October 3, 1991, as part of the interim rules to implement sections

511 and 545 of the Immigration Act of 1990, Pub. L. No. 101 - 649, 104 Stat.

4978, 5052, 5061, which precluded section 212(c) relief to aggravated felons

who had served 5 years’ imprisonment and also to aliens failing to appear at

specified immigration proceedings. These amendments to the Act did not

otherwise address section 212(c). Also, there was no discussion of the specific language of 8 C.F.R. § 212.3(f)(2) accompanying the regulation, and the

regulation appears to be merely a reiteration of our conclusion in Matter of

1 For a contrary view on the soundness of our decision in Matter of S-, supra, see Wettstein,

Lawful Domicile for Purposes of INA § 212(c): Can It Begin with Temporary Residence, 71

Interpreter Releases No. 37 Sept. 26, 1994, at 1273.

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S-, supra. See 56 Fed. Reg. 50,033 (Oct. 3, 1991).2 Moreover, the regulation

does not specifically refer to this Board. If 8 C.F.R. § 212.3(f)(2) is read as a

substantive limitation upon our authority to interpret the law, I agree with the

dissenting opinion of Board Member Rosenberg, that its issuance appears to

violate the advance notice and public comment requirements of 5 U.S.C.

§ 553 (1994). See Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979). I

believe that it is a mistake for the majority and concurring opinions to find

this Board bound to uphold an obsolete interpretation of the law just because

this interpretation was codified in an apparently ultra vires and improperly

enacted regulation.

I recognize that this Board is bound by the regulations enacted by the

Attorney General. See Matter of Fede, 20 I&N Dec. 35 (BIA 1989). However, this Board is also bound by the statutes enacted by Congress. See Matter of Valdovinos, 13 I&N Dec. 343 (BIA 1982), and cases cited therein.

Where a federal statute and a regulation conflict, the statute controls. In fact

section 242(b) of the Act, 8 U.S.C. § 1252(b) (1994), specifies that the controlling regulations in deportation proceedings must be consistent with the

Act. It states that “proceedings before a special inquiry officer acting under

the provisions of this section shall be in accordance with such regulations,

not inconsistent with this Act, as the Attorney General shall prescribe.”

(Emphasis added.) Since 8 C.F.R. § 212.3(f)(2) does not specifically limit

the powers of the Board, as it addresses only the discretionary powers of the

Immigration and Naturalization Service and Immigration Judges, as noted by

Board Member Rosenberg, a better approach would have been to overrule

Matter of S-, supra, as obsolete, point out the conflict with 8 C.F.R.

§ 212.3(f)(2), certify the case to the Attorney General, and direct the Immigration Judges to proceed to consider applications for section 212(c) waivers,

while the Attorney General considers this issue.

The regulations at 8 C.F.R. § 3.1(d)(1) (1995) specify that subject only to

specific limitations, the Board is empowered to exercise such discretion and

authority conferred upon the Attorney General by law as is appropriate and

necessary for the disposition of the case. Surely, it is appropriate and necessary for the Attorney General to note when a carelessly enacted regulation

conflicts with a statute. The regulation at 8 C.F.R. § 3.1(g) contemplates that

the Board has primary responsibility for interpreting immigration statutes

and can render decisions binding upon the Service and the Immigration

Judges subject to review by certification by the Attorney General pursuant to

8 C.F.R. § 3.1(h) in a limited number of cases. We should provide the

2 In fact, 8 C.F.R. § 212.3(f)(2) appears to be inconsistent with our holding in Matter of

Diaz-Chambrot, 19 I&N Dec. 674 (BIA 1988), and Matter of Rivera-Rioseco, 19 I&N Dec. 833

(BIA 1988), relating to Cuban adjustment of status cases, although in these cases, the pertinent

statute specifically rolls back the effective date of the acquisition of the lawful permanent

residence, and thus, could be distinguished on that basis. See Cuban Adjustment Act of

November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161.

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Attorney General with a clearer resolution of this issue. We have not in the

past hesitated to review the history and purpose of regulations that appear to

limit the jurisdiction of Immigration Judges in ways inconsistent with the

statutory scheme, noting that it is inappropriate to abdicate the resolution of

such important issues to the courts. See Matter of Kwun, 13 I&N Dec. 457,

464, 469-70 (BIA 1969, 1970). Moreover, our power to resolve legal issues

by adjudication, instead of rulemaking, has consistently been recognized.

See, e.g., Nunez-Pena v. INS, 956 F.2d 223, 225 (10th Cir. 1992) (noting the

Board’s adoption of the outstanding and unusual equities requirement for

section 212(c) relief to aliens deportable for committing serious crimes). As

stated above, 8 C.F.R. § 212.3(f)(2) does not expressly limit our prescribed

jurisdiction to interpret statutes and regulations under the Immigration and

Nationality Act on behalf of the Attorney General. In NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974), the Supreme Court held that an agency

“is not precluded from announcing new principles in an adjudicative proceeding and . . . the choice between rulemaking and adjudication lies in the

first instance within the [agency’s] discretion.” A rigid rulemaking requirement “’would make the administrative process inflexible and incapable of

dealing with . . . unforeseeable situations.’” Id. at 292-93 (quoting SEC v.

Chenery Corp., 332 U.S. 194, 202 (1947). Thus, this Board need not wait

until every federal circuit court of appeals rejects Matter of S-, supra, or until

the language of 8 C.F.R. § 212.3(f)(2) is modified before allowing respondents to avail themselves of the remedy provided by law. Where the language

of the statute is clear and the regulation is clearly inconsistent with the statutory language, this Board should rule that the statutory language controls

over the regulation.

The majority’s approach runs against the need for uniformity in the

enforcement of our immigration laws regarding criminal aliens. Cf. Matter

of Silva, 16 I&N Dec. 26 (BIA 1976) (adopting the rule of Francis v. INS, 532

F.2d 268 (2d Cir. 1976), regarding section 212(c) applications in deportation

proceedings). Immigration Judges outside the jurisdiction of United States

Courts of Appeal for the Second, Seventh, and Ninth Circuits will be bound

to a doomed rule pretermitting applications for section 212(c) waivers, until

these applications are eventually revived by the courts or the passage of time

renders the issue moot. Most aliens who obtained their residence through

IRCA will have their 7 years of lawful permanent residence long before this

issue is finally resolved by all of the circuits or there is a change in the language of the regulation. Meanwhile, the mandate for an expeditious resolution of criminal alien cases will be seriously undermined by creating a class

of criminal aliens whose section 212(c) waiver applications are merely postponed by the majority’s refusal to timely decide these cases while the criminals are still imprisoned so that those ordered deported can be expeditiously

removed, and those granted relief from deportation can proceed to rehabilitate themselves without the limitations imposed on aliens whose deportation

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cases are pending. See section 242A of the Act, 8 U.S.C. § 1252A (1994).

These concerns require that we, at least, overrule Matter of S-, supra, now as

inconsistent with the present statute in order to schedule and resolve these

cases expeditiously.

BEFORE THE ATTORNEY GENERAL

(June 29, 1997)

Pursuant to 8 C.F.R. § 3.1(h)(1)(ii), the Board of Immigration Appeals has

referred to me for review its decisions in Matter of Ponce de Leon, A91 278

310 (BIA Jan. 3, 1996), and Matter of Cazares, A92 166 321 (BIA Jan. 3,

1996), both of which involved the question of an alien’s eligibility to apply

for a waiver of deportability under section 212(c) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(c). On November 25, 1996, an interim regulation that resolves the issues in these cases was published at 61 Fed. Reg.

59,824 (1996) (to be codified at 8 C.F.R. pt. 212). Accordingly, I decline to

review the cases and remand them to the Board for reconsideration in light of

the promulgation of the aforementioned regulation.

BEFORE THE BOARD ON REMAND

(October 8, 1997)

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and

GUENDELSBERGER, Board Members. Dissenting Opinion: ROSENBERG, Board Member.

SCHMIDT, Chairman:

This case is before us on remand from an order of the Attorney General

dated June 29, 1997. In our original decision in this case, we addressed the

question of the respondent’s statutory eligibility for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(c) (1994). Matter of Ponce de Leon, 21 I&N Dec. 154 (BIA 1996).

We found the respondent ineligible for relief and dismissed the appeal. We

further ordered that the decision be certified to the Attorney General for

review pursuant to 8 C.F.R. § 3.1(h)(1)(ii) (1995).

In her order, the Attorney General noted that an interim regulation that

resolved the issue in this case was published on November 25, 1996. See 61

Fed. Reg. 59,824 (1996); see also 8 C.F.R. § 212.3(f)(2) (1997). The Attorney General therefore declined to review the case and remanded the record to

the Board for reconsideration in light of the regulation.

On April 24, 1996, while this case was pending before the Attorney General, Congress amended section 212(c) of the Act by section 440(d) of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214, 1277 (“AEDPA”). Under the provisions of that section, an

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“alien who is deportable by reason of having committed any criminal offense

covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered

by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by

section 241(a)(2)(A)(i)” is not eligible for a section 212(c) waiver. Although

the Board held that this bar to relief applied only to applications filed after

April 24, 1996, the Attorney General vacated the Board’s decision and held

that the AEDPA amendment applied to cases pending on the date of its enactment. Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997).

The respondent in this case conceded deportability under section

241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994), but denied

deportability under section 241(a)(2)(A)(iii). He was found by the Immigration Judge to be deportable on both grounds. On appeal, we agreed that the

respondent is deportable as an aggravated felon under section

241(a)(2)(A)(iii). He is therefore no longer eligible for a section 212(c)

waiver. Matter of Soriano, supra.

In view of the Attorney General’s remand for reconsideration of this case

and the 1996 amendment of the statute, our prior order will be vacated. Upon

reconsideration, we again find that the respondent is deportable as charged

and that he is ineligible for section 212(c) relief. Accordingly, the respondent’s appeal will be dismissed.

ORDER:

Our decision of January 3, 1996, is vacated.

FURTHER ORDER:

The appeal is dismissed.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

I dissent from the majority opinion for the reasons stated in my dissenting

opinion in Matter of Cazares, 21 I&N Dec. 188 (BIA 1996; A.G., BIA

1997).

Although the posture of the instant case is slightly different because we

did not find ourselves bound by federal court authority in the jurisdiction in

which this respondent’s case arose, the equitable considerations warranting

nunc pro tunc adjudication of the respondent’s waiver application under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)

(1994), are much the same. As I noted in my dissent at the time we originally

issued our decision in this case, there was then growing unanimity in the federal courts that the Board’s past reading of section 212(c), as amended in

1952, was not a permissible one. Citing West Virginia University Hospitals

v. Casey, 499 U.S. 83, 101 (1991), and Romero v. INS, 39 F.3d 977 (9th Cir.

1994), I acknowledged that our policy of requiring that the 7-year period of

lawful domicile could be satisfied by a respondent only after being granted

lawful resident status appeared to be ultra vires.

At that time, the Board’s interpretation that lawful domicile and permanent residence must accumulate concurrently for purposes of section 212(c)

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eligibility had been either rejected or questioned by a number of circuit courts

of appeals.3 White v. INS, 75 F.3d 213 (5th Cir. 1996); Ortega de Robles v.

INS, 58 F.3d 1355 (9th Cir. 1995); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir.

1995); Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995); see also

Hussein v. INS, 61 F.3d 377, 380 (5th Cir. 1995) (not reaching the issue, but

finding no circuit has upheld the Board’s view); Madrid-Tavarez v. INS, 999

F.2d 111 (5th Cir. 1993); Graham v. INS, 998 F.2d 194 (3d Cir. 1993);

Melian v. INS, 987 F.2d 1521, 1524 (11th Cir. 1993) (defining “lawful domicile” under section 212(c) without reference to permanent residence, as “at

least the simultaneous existence of lawful physical presence in the United

States and lawful intent to remain in the United States indefinitely”);

Prichard-Ciriza v. INS, 978 F.2d 219, 224 (5th Cir. 1992); Rosario v. INS,

962 F.2d 220 (2d Cir. 1992) (stating that a minor can establish domicile for

section 212(c) eligibility through a parent and can be credited with 7 years’

domicile even if he has not been a permanent resident for that long); Brown v.

INS, 856 F.2d 728, 731 n.5 (5th Cir. 1988) (finding that intent to remain, and

thus lawful domicile, might begin as of the date a nonimmigrant files an

application for permanent residence); Lok v. INS, 681 F.2d 107 (2d Cir. 1982)

(“Lok II”) (holding that while one need not be a permanent resident for the

entire 7 years, one must be a lawfully resident alien for that time); Lok v. INS,

548 F.2d 37 (2d Cir. 1977) (“Lok I”) (same).

As I discussed in my dissenting opinion in Matter of Cazares, supra, the

regulation published by the Attorney General while Matter of Cazares and

this case were pending before her, suggests strongly that the Attorney General wished to bring agency policy and practice into compliance with the rulings of the several Federal courts that had addressed the treatment of persons

first admitted for lawful temporary residence, whose status was later adjusted

to that of lawful permanent resident. It also is notable that, in enacting the

cancellation of removal provision, which is widely accepted as replacing

waiver relief under former section 212(c) of the Act, Congress crafted the

terms of that provision explicitly to acknowledge the distinction between the

acquisition of lawful permanent resident status and the period of residence

accrued after admission in any status. See section 240A(a) of the Act, enacted

at section 304(a)(3) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, 3009-587 (Sept. 30, 1996) (to be codified at 8 U.S.C. 1229b(a)).

Our adherence in the respondent’s case to an interpretation that by all

accounts has now been shown to be founded on an erroneous interpretation of

the statute, wrongly denied him the opportunity to apply for a form of relief

that he was erroneously precluded from applying for at the time of his hearing. Typically, a procedural error, such as the erroneous denial of an

3 For example, the Board’s interpretation has been criticized almost universally by those

circuit courts of appeals which have considered the issue.

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opportunity to apply for an asserted form of relief for which the respondent is

eligible, is cured by simply holding a new hearing “in compliance with due

process requirements,” as this remedy restores the wronged applicant to the

position in which he found himself prior to the procedural error. Batanic v.

INS, 12 F.3d 662, 667 (7th Cir. 1993); see also Shahandeh-Pey v. INS, 831

F.2d 1384, 1390 (7th Cir. 1987) (remanding to allow an alien denied the

opportunity to “have his day in court” to present all of his evidence in support

of his application for asylum in lieu of deportation).

When remand for reopening to afford the respondent the opportunity to

apply for relief no longer can meaningfully cure the prior error, it is then that

the equitable remedy of nunc pro tunc relief is appropriate. Batanic v. INS,

supra (holding that where denial of the right to counsel deprived the respondent of his right to apply for asylum, counsel’s ability to protect the respondent’s rights in a reconvened hearing must include the ability to apply for

asylum nunc pro tunc because of an intervening change in the statute). In particular, “when the procedural defect has also resulted in the loss of an opportunity for statutory relief,” the demands of due process require more than

merely reconvening the hearing. Id. at 667 (emphasis added). When a violation of due process results in a denial of a fair hearing on the question of eligibility for relief, the respondent should be afforded the opportunity for

consideration of his claim based upon the law as it existed at the time he was

deprived of his rights. Snajder v. INS, 29 F.3d 1203, 1208, n.12 (7th Cir.

1994).

For these reasons I would remand the respondent’s case for consideration

of his section 212(c) application nunc pro tunc.

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