Interim Decision #2733

Interim Decision #2733

MATTER OF NEWTON

In Deportation Proceedings

A.-35130025

Decided by Board October 5, 1979

(1)The Board's position of some 26 years that a respondent must have 7years or more of

domicile in the United States otter admission for lawful permanent residence to be

eligible for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C.

1182(c), is supported by the origins of the language in section 212(c) and the clear

legislative intent in 1952 to restrict the scope of the predecessor to section 212(c) (the

Seventh Proviou of section 3 of the 1017 Immigration Act).

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

F.2d 435 (D.C. Cir. 1979), reaffirmed.

Canna=

Order: Act of 1952—Sec. 241(a)(4) [8 U.S.C. 1251(a)(4))—Convicted of a crime involving

moral turpitude within five years after entry and sentenced to

confinement therefor

ON BEHALF OF RESPONDENT: Patricia M. Fron, Esquire

Legal Services of the

Virgin Islands, Inc.

No. 6 Company Street

St. Croix, U.S. Virgin Islands 00820

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated February 2, 1978, the immigration judge found

the respondent deportable as charged, statutorily ineligible for relief

under sections 212(c) and.244(e) of the Immigration and Nationality

Act, 8 U.S.C. 1182(c) and 1254(e), and ordered his deportation to St.

Kitts. The respondent appeals from the immigration judge's determination that he was ineligible for relief under section 212(c) of the Act.

The appeal will be dismissed.

The respondent is a 26-year-old native of St. Kitts, West Indies, and

citizen of the United Kingdom and Colonies. He first entered the

United States in 1959 as a dependent of a temporary nonimmigrant

("H-2") worker admitted under the provisions of section

101(a)(15)(H)(ii) of the Act, 8 U.S.C. 1101(a)(15)(H)(fi). He remained in

this country in that status until 1971 when he obtained employment

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and became and "11-2" worker himself. He married a United States

citizen in 1973 and through her obtained lawful permanent resident

status at the time of an entry into this country on June 25, 19742

In January 1976, the respondent was convicted of grand larceny in

the District Court of the Virgin Islands and was ultimately sentenced

to confinement for a period of 3 years? He remained in confinement

from January 1976 until August 1977, when he was released on parole.

An Order to Show Cause was issued in April 1976 charging the

respondent with being deportable under section 241(a)(4) of the Act, 8

U.S.C. 1251(a)(4), based on his conviction of a crime involving moral

turpitude within 5 years of entry and his subsequent confinement for

"one year or more. . . ." At deportation proceedings held in May and

September 1977 and February 1978, the respondent conceded deportability, but applied for relief from deportation under section 212(c)

of the Act. He urged the immigration judge to adopt the position of the

United States Court of Appeals for the Second Circuit in Lok v. INS,

548 F.2d 37 (2 Cir. 1977), and find that the 7 years of "lawful unrelinquished domicile" required under section 212(c) did not of necessity

have to follow an alien's admission for lawful permanent residence. He

submitted that he had a "lawful domicile" in this country throughout

the period that he resided in an "H-2" nonimmigrant status and that

he should be found statutorily eligible for section 212(c) relief.

The immigration judge, however, concluded that the respondent was

ineligible for section 212(c) relief based on his failure to satisfy that

section's requirement of 7 years of "lawful domicile." He noted that

this Board had consistently applied section 212(c) only to aliens

domiciled in this country for 7 or more years after their lawful admission for permanent residence and had declined to follow Lok v. INS,

supra, outside the jurisdiction of the Second Circuit. See Matter of

Anwo,16I.EN Dec. 293 (BIA 1977), aff'd on other grounds, Anwo v. INs,

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

As the respondent had not been lawfully admitted to the United States

for permanent residence until June 1974, he was found not to have

fulfilled the statutory prerequisites for relief under section 212(c). The

—

respondent was also found to be statutorily ineligible for voluntary

departure based on his conviction. See section 244(e) of the Act.

On appeal, the respondent, through counsel, submits that this Board

should reconsider its decision in Matter of Anwo, supra, and apply Lok

v. INS, supra, on a nationwide basis. Respondent argues that "based on

' The respondent was divorced from his wife in January 1977.

The respondent and another man were charged with stealing currency, checks and

food coupons totaling in excess of $21,000 from a supermarket. He was tried by jury and

convicted as charged upon a plea of not guilty_

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the Board's own reasoning in Anwo, [he] . . . can show the establishment of a lawful domicile during his nonimmigrant status which

would warrant relief under section 212(c)."

The appeal will be dismissed. We decline to reconsider our decision

in Matter of Anwo in which we set forth our rationale for refusing to

recede from a statutory interpretation that has been consistently

applied by the Board for some 26 years. We note that the Ninth Circuit

has now endorsed the Board's position and has declined to followLok v.

INS. See Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979). We will,

however, add a further comment regarding our finding in Anwo that

the legislative history of section 212(c) supported the Board's interpretation of that section in view of the Second Circuit's finding in Lok

that a reading of the same legislative history mandated a contrary

conclusion.

The Seventh Proviso of section 3 of the 1917 Immigration Act was

the predecessor to section 212(c) of the 1952 Act. That proviso read:

That aliens returning after a temporary absence to an unrelinquished United States

domicile of seven consecutive years may be admitted in the discretion of the Attorney

General, and under such conditions as he may prescribe.

The proviso was apparently "intended to give discretionary power to

the proper government official to grant relief to aliens who were

reentering the United States after temporary absence, who came in the

front door, were inspected, lawfully admitted, established homes here,

and remained for seven years before they got into trouble." 3 Administrative decisions, however, extended the applicability of this proviso

beyond this limited scope. For example, one aspect of the administrative interpretation allowed the relief under that proviso to be available

even in cases where the alien's original entry into this country was

illegal. This administrative expansion lead the Seventh Proviso to

become "[o]ne of the most controversial provisions of section 3 of the

1917 act. . ."4

In 1947, the Senate Judiciary Committee was directed to make a full

and complete investigation of the entire immigration system. See

Senate Resolution 197, Roth Cong., 1st Sess. (1947). The final report of

that Committee, dated April 20, 1950, in part addressed the history of

the Seventh Proviso and the various suggested revisions to that provision. See Senate Report No. 1515, 81st Cong., 2d Sess. 381-884 (1950).

The Committee report noted that it had been suggested that the

proviso be abolished or that the procedures be eliminated which had

allowed aliens to have the merits of a Seventh Proviso application

reviewed prior to a departure from this country. This latter "preex' See Senate Report No. 1515, 81st Cong., 2d Sess. 382 (1950).

Id. at 381.

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amination" procedure, when combined with a Service promise to a

foreign country to take the alien back into the United States without a

visa, allowed otherwise inadmissible aliens a route of legal entry into

this country if they could enter illegally and then maintain a domicile

for a period of 7 years. The only other suggested revision noted in the

Committee report was that:

. . . if the words "established after a lawful entry for permanent residence" were

inserted in the seventh proviso to qualify the domicile of the alien it would effectively

eliminate practically all of the objectionable features, and at the same time the

Attorney General would be left with sufficient discretionary authority to admit any

lawfully resident aliens returning from a temporary visit abroad to a lawful domicile

of seven consecutive years.'

It would appear that the phrase "returning ... to a lawful domicile of

seven consecutive years," as used in that sentence, was understood by

the Judiciary Committee to mean returning to a lawful domicile of 7

years "established after a lawful entry for permanent residence" for it

was stated that the inclusion of these latter words in the Seventh

Proviso would leave the Attorney General the discretion to admit "any

lawful resident aliens returning from a temporary visit abroad to a

lawful domicile of seven consecutive years." Such would not have been

the case if the phrase "returning . . . to a lawful domicile of seven

consecutive years" had not been understood to refer only to those

acquiring lawful domicile after entry for permanent residence.

The- next sentence in the Committee report, under the heading

"Recommendations on the Seventh Proviso," recommended that the

proviso be limited to aliens who had the status of lawful permanent

residents and who were "returning to a lawful domicile of seven

consecutive years _ _ ," the very words understood in the immediately

preceding sentence to apply to aliens with 7 years of domicile after

entry for lawful permanent residence. Language substantially identical to that used in this recommendation of the Senate Judiciary

Committee was ultimately included in section 212(c).

Thus, we do not find, as did the court in Lok v. INS, supra, that the

Judiciary Committee rejected the proposal to limit the discretionary

relief in the manner now interpreted by the Board when it did not

specifically recommend inclusion of the words "established after a

lawful entry for permanent residence" to qualify the domicile requirement of the seventh proviso. We find the exclusion of these words is

more persuasively explained by the Judiciary Committee's belief that

the language in fact recommended adequately conveyed their intent

that the 7 years of domicile follow an alien's admission for lawful

permanent residence. •

Id. at 384.

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We find that the origins of the language now in section 212(c), along

with the clear legislative intent in 1952 to restrict the scope of the

seventh proviso, support the conclusion that such relief was intended

to be available only to aliens acquiring 7 years of domicile after their

entry for permanent residence. Thus, we affirm our decisions of Matter

of S—, supra, and Matter of Anwo, supra.

We held in Anwo that a respondent must have 7 years or more of

domicile after admission for lawful permanent residence to be eligible

for section 212(c) relief. This respondent cannot as yet satisfy this

requirement. Accordingly, as we decline to reconsider our decision in

Anwo, we need not address the issue of whether this respondent could

satisfy the "lawful domicile" requirements of section 212(c) if Lok v.

INS, supra, were controlling.

The appeal will, therefore, be dismissed.

ORDER: The appeal is dismissed.

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