Interim Decision #2878

Interim Decision #2878

MATTER OF LOK

In Deport—tion Proceedings

A-31327663

Decided by Board July 31, 1981

(1) The lawful permanent resident status of an alien terminates within the meaning of

section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(20), with

th a entry of a final administrative order of deportation, i.e., when the Board renders

its decision in the case upon appeal or certification or, where no appeal to the Board

is taken, when appeal is waived or the time allotted for appeal has expired.

(2) Once a final administrative order of deportation has been entered, barring a reversal

on the merits of the deportability finding by an appellate court or administratively upon

a motion for reopening or reconsideration, an alien may not thereafter establish eligibility as a lawful permanent resident for relief under section 212(c) of the Act, 8 U. S. C.

1182(c), nor may his domicile in this country from then on be considered lawful for

purposes of that section.

(3) In order for an alien to establish a domicile in the United States, he must he physically present in this country and have the intention of residing here permanently or

indefinitely; for that domicile to be considered lawful within the meaning of section

212(c) of the Act, the alien's presence in the United States must be lawful within the

meaning of this country's immigration laws.

(4) The Immigration and Nationality Act sanctions the continuing presence in this country

of but one class of aliens other than those lawfully admitted for permanent residence,

namely, nonimmigrants in compliance with the terms and conditions of their admission.

(5) Govertimignt action or policy to refrain from instituting deportation proceedings against

an alien or enforcing his deportation notwithstanding, an alien in breach of the terms

and conditions of his nonimmigrant status remains in the United States at the sufferance of the Government, not under any lawful status accorded him by the Act.

(6) A nonimmigrant crewman who complied with the conditions of his admission and did

not intend to remain in this country beyond the fixed period of his temporary stay

may not establish that he was "domiciled" here during the time his stay as a nonimmigrant was authorized under our immigration laws; conversely, if the nonimmigrant

crewman did intend to make the United States his permanent home and domicile, he

was in violation of the conditions of his admission and was not here "lawfully."

CHARGE:

Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11)J—Conviction of violation

of law relating to narcotic drugs

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Lloyd A. Sherman

Trial Attorney

Stanley'it. Wallenstein, Esquire

Schiano & Wallenstein

80 Well Street

New Yorit, New York 10005

101

Interim Decision #2878

BY: Mholian, Chairman; Mardatis, and Vacca, Board Members

This case comes to us pursuant to a Stipulation and Order of Remand

entered by the United States Court of Appeals for the Second Circuit on

June 18, 1980. Tim Lok v. INS, No. 80-4076 (2 Cir. 1980). A complex

procedural history preceded the court's present order in the case.

The respondent, a native and citizen of China, now 43 years of age,

entered the United States as a noninunigrant crewman in July 1959, and

was authorized to remain in this country no longer than 29 days. He

failed to depart within the authorized period. At a deportation hearing

conducted on October 26, 1965, an immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Aet, 8 U.S.C. .1251(a)(2), granted him the privilege of voluntary

departure in lieu of deportation, but ordered him deported from the

United States in the event of his failure to depart voluntarily within the

period specified by the District Director. Voluntary departure was ulti- mately authorized, with extensions, to March 2, 1969, to permit Congressional consideration of private bills introduced in the respondent's

behalf.

On February 27, 1968, the respondent married a United States citizen

who on February 2, 1922, nne month before the respondent's voluntary

departure authorization was to expire, filed a visa petition to accord him

immediate relative status. Under existing Service policy, the order of

deportation outstanding against the respondent was not enforced pending adjudication of the visa petition. The visa petition was approved on

January 30, 1970, and forwarded to the United States Consulate in

-Hong Kong, where the respondent was to apply for an immigrant visa

based upon his marriage. 1

On October 25, 1971, the respondent left the United States for Hong

Kong to obtain his immigrant visa, apparently thus effecting his deportation under the 1965 order of deportation. 2 Section 101(g) of the Act, 8

U.S.C. 1101(g); 8 C.F.R. 243.5. In November 1971, the respondent

applied for and received permission from the Attorney General to reapply for admission following deportation and was thereafter issued his

immigrant visa by the consul in Hong Kong. He was admitted to the

United States for lawful permanent residence on December 26, 1971.

1 Section 245 of the Act, 8 U.S.C. 1255, which permits adjustment of status in this

country, does not apply to aliens who entered as crewmen.

2 The Second Circuit appears to have concluded that the respondent left the country

while still in voluntary departure status. Lok v. INS, 548 F.2d S7, 38 (2 Cir. 1977). We

find no indication in the record that the voluntary departure period granted the respondent waR extended beyond March 3, 1969_ Resolution of the question is not, however,

necessary to a disposition of the case.

102

Interim Decision #2878

In early 1973, the respondent was convicted upon his plea of guilty of

offenses relating to the possession and distribution of narcotic drugs.

The present deportation proceedings were thereupon instituted by the

issuance of an Order to Show Cause charging the respondent with deport-

ability under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an

alien convicted of a drug—related crime. At the deportation hearing that

ensued, the respondent conceded deportability but contended that he

was eligible for relief from deportation through a discretionary waiver

under section 212(c) of the Act, 8 U.S.C. 1182(c), which provides in

pertinent part:

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 paragraph (1) through (25)

and paragraphs (30) and (31) of subsection (a). 3

The immigration judge found the respondent deportable as charged

and rejected his claim of eligibility for section 212(c) relief in a decision

dated May 29, 1975. On July 30, 1976, the Board affirmed the immigration judge's decision. With respect to the denial of relief under section

212(e), we relied upon our decision in Matter of S-, 5 I&N Dec. 116 (BIA

1953), decided some 24 years earlier, in which we held that in order to

comply with the "lawful unrelinquished domicile" requirement of the

statute an alien must have maintained a domicile in the United States

for 7 consecutive years subsequent to his lawful admission for permanent residence. Matter of Lok, 15 I&N Dec. 720 (BIA 1976). Inasmuch

as the respondent had not been admitted as a lawful permanent resident

until 1971, we determined that he did not have the requisite 7 years of

lawful domicile and was consequently statutorily ineligible for section

212(c) relief. Matter of Lok, id. The respondent filed a petition for review

of our decision with the United States Court of Appeals for the Second

Circuit.

In Lok v. INS, 548 F. 2d 37 (2 Cir. 1977), entered on January 4, 1977,

the Second Circuit rejected our long-standing interpretation of the phrase

"lawful unrelinquished domicile" and reversed our decision in the case.

Finding that the statutory terms "lawfully admitted for permanent

residence" and "lawful =relinquished domicile" could not be equated,

the court concluded that it is in fact possible for an alien to possess a

"lawful domicile" in this country without having been admitted for permanent residence and that the entire 7 years of lawful domicile need not

3 Although section 212(c) by its terms applies only to excludable aliens seeldng admission to the United States, we have held, following the Second Circuit's decision in Francis

v. INS, 532 F.2d 268 (2 Cir. 1976), that section 212(c) relief is available in deportation

proceedings notwithstanding the fact that the respondent had not departed from this

country since the act or event that rendered him excludable and depul table. Metter of

Silva, 16 l&N Dec. 26 (BIA 1976).

103

Interim Decision #2878

necessarily be accumulated after the alien acquires permanent resident

status.4 The court remanded the case to the Board for a determination

as to whether the respondent's domicile prior to his 1971 admission had

been "lawful."

On January 13, 1978, we remanded the record to the immigration

judge for initial consideration of the issue framed by the Second Circuit

and ordered that the ease be certified back to the Board for review.

Matter of Lok, 16 I&N Dec. 441 (BIA 1978). In a decision dated June 14,

1979, the immigration judge again found the respondent statutorily

ineligible for the relief sought under section 212(c), holding that no

portion of the respondent's domicile prior to his 1971 admission for

permanent residence was lawful. Recognizing that more than 7 years by

then had elapsed since the respondent's admission for permanent residence in December 1971, the immigration judge further held that the

respondent's lawful status, which began with that admission, ended in

May 1975 when he was found deportable and ordered deported from the

United States. 5 The immigration judge thus concluded that the respondent had satisfied only 3 Vs years of the requisite 7-year period of lawful

domicile.

In considering the case upon certification, we adopted the immigration judge's findings of fact and conclusions of law and affirmed his

decision without extended discussion in an unpublished per curiam opinion dated November 8, 1979. 6 The respondent again sought review of

our decision in the Second Circuit.

Bringing the case to its present posture, the court, pursuant to stipulation between the parties, entered its June 18, 1980, order remanding

the case to the Board for reexamination of the following "remanded

question:"

Whether the immigration judge erred in concluding that his 19Th deportability finding

terminated [the respondent's] lawful domicile under section 212(c) and in holding that,

as a result, [the respondent) was ineligible in 1979 for relief under that provision.

The court's order further instructs the Board to set forth the reasons

for its conclusion in a written opinion in the event the decision on remand

is adverse to the respondent.

4 We declined to apply the decision in Lok v. INS, 548 F.2d 37 (2 Cir. 1977), in cases

arising outside the Second Circuit. Matter of Alm, 16 I&N Dec. 293 (BIA 1977).

5 The immigration judge additionally concluded that the respondent was barred by his

deportation in October 1971 from establishing eligibility for section 212(e) relief. The

foregoing theory is not presently advanced by the Government as a basis for denying the

relief sought and we need not and do not address its merits.

e

In affirming the jminigration judge's June 1979 holding that the respondent's lawful

status ended when he was initially found deportable in May 1975, we referred to dictum in

our earlier decision in Matter of Hinojosa, 17 I&N Dee. 34 (BIA 1979), to the effect that an

"adjudication" of deportability terminates an alien's "lawful status." See also Matter of

Hinojosa, 17 MN Dec. 322 (BIA 1980).

104

Interim Decision #2878

We note at the outset that while the immigration judge and the court

in its remand order couched the question, in terms of whether the

respondent's "lawful domicile" came to an end with the immigration

judge's May 1975 finding of deportability, the precise legal issue before

us is whether the respondent's status as an alien "lawfully admitted for

permanent residence" was then terminated. ? The loss of lawful permanent resident status is a necessary corollary to the loss of lawful domicile since it is illogical to conclude that the domicile of one who retains

his lawful permanent resident status could be anything but lawful. The

question confronting us, then, is: At what point in the deportation

proceedings does the status of an alien lawfully admitted for permanent

residence come to an end?

Termination of Lawful Permanent Resident Status

The term "law.fully admitted for permanent residence" within section

212(e) is a defined term whose definition is set forth in section 101(a)(20)

of the Act, 8 U.S.C. 1101(a)(20), as follows:

The terra lawfully admitted for permanent residence" means the status of having been

lawfully accorded the privilege of residing permanently in the United States as an

immigrant in accordance with the immigration laws, such status not having changed.

(Emphasis added.)

The pivotal underlined language was not, however, defined by Congress.

We have carefully examined the various stages within the deportation

process at which the status of an alien "lawfully admitted for permanent

residence" may be considered to have changed within the meaning of

section 101(a)(20) of the Act: (1) upon the immigration judge's initial

determination of deportability, (2) when the Unrnigration judge's order

becomes administratively final, (3) when a United States Court of Appeals

acts upon a petition for review of the Board's order or the time allowed

for filing such petition expires, or (4) only upon the execution of the

deportation order by the alien's departure, voluntary or enforced, from

this country. Upon reconsideration, we conclude that the policies of the

Act would best be served by deeming the lawful permanent resident

status of an alien to end with the entry of a final administrative order of

deportation— generally, when the Board renders its decision in the

case upon appeal or certification or, where no appeal to the Board is

taken, when appeal is waived or the time allotted for appeal has expired.

8 C.F.R. 3.1(d)(2); 8 C.F.R. 242.20; 8 C.F.R. 243.1.

• Thus, we hold that the respondent's lawful permanent resident status

terminated on July 30, 1976, with the Board's affirmance of the immigration judge's determination of deportability. Barring a reversal on the

merits of that deportability finding by an appellate court or administraThe distinction is subtle but not entirely inconsequential in light of certain privileges

that attach to lawful permanent resident status. (See discussion, infra.)

105

Interim Decision #2878

tively upon a motion for reopening or reconsideration, the respondent

could not thereafter establish eligibility as a lawful permanent resident

for section 212(e) relief nor could his domicile in this country from then

on be considered lawful.

It is established that the mere occurrence of an act or event which

provides a basis for an alien's deportation does not in itself cause the

alien's status as a lawful permanent resident to change within the contemplation of section 101(a)(20). Matter of Salmon, 16 I &N Dec. 734

(BIA 1978); Matter of S-, 6 I&N Dee. 392 (BIA 1954; A.G. 1955). Cf.

Matter of Einojosa, supra. At the other mil of the spectrum, we have

held that the lawful permanent resident status of an alien is terminated

when he departs the United States after having been ordered deptirted,

thereby executing the outstanding order of deportation. Matter of

Mosgueda, 14 I&N Dec. 55 (R.C. 1972). See also Matter of Kane, 15

I&N Dec. 258 (BIA 1975); Matter of Guiot, 14 I&N Dec. 393 (D.D.

1973). Cf. Matter of Igal, 10 I&N Dec. 460 (BIA 1964).

While it is settled than an alien who departs the United States under

an order of deportation thereby loses his lawful permanent resident

status (see Matter of Mosqueda, supra), it by no means follows that the

alien retains that status, with all the rights that attach thereto, until

such departure. We find the proposition that an alien under a final order

of deportation may remain a lawful permanent resident inherently

incongruous. Were that the case, for example, a clearly deportable alien

who has exhausted all of his administrative and judicial appeal rights

but whose departure cannot for some reason be enforced (e.g., for lack

of a country that will accept him into its territory) may continue to

accord designated relatives visa preference so long as he remains in this

country. We decline to adOpt a position that could produce such anomalous result_

On the other hand, we are satisfied upon reconsideration of our November 1979, decision that termination of lawful permanent resident status

upon the immigration judge's initial adjudication of deportability is

premature- An alien is entitled as of right to appeal to the Board from an

immigration judge's finding of deportability, the final administrative

recourse 'available to him. 8 C.F.R. 3.1(b)(2); 8 C.F.R. 242.21. The

Board is not bound by the immigration judge's conclusions but rather

has plenary power to review the record de novo and to make its own

independent determinations on questions of law and fact. Matter of

Beeerra4firanda, 12 I&N Dec. 358. (BIA 1967); Matter of VilanovaGonzalez, 13 I&N Dee. 399 (BIA 1969), and the cases cited therein.

Under the diretnnstances, we believe that where a timely appeal to the

Board is taken or the Board considers the case upon certification as

provided in 8 C.F.R. 3.1(c), the time the Board renders its decision,

rather than some earlier point in time; ought to govern when the status

106

Interim Decision #2878

of an alien lawfully admitted for permanent residence changes within

the meaning of section 101(a)(20) of the Act on account of his being

adjudged deportable. 8

We further conclude that lawful permanent resident status ought not

be considered to continue beyond the entry of a final administrative

order of deportation through the judicial appellate process. Authority to

adjudicate an alien's deportability is vested primarily in the Attorney

General and, his delegates, the immigration judge and the Board. .Where

an administrative appeal has been taken, the alien is entitled to seek

review of an adverse decision of the Board in the United States Circuit

Courts of Appeals pursuant to the provisions of section 106 of the Act, 8

U.S.C. 1105a. However, in contrast to the Board's de novo review

powers, the appellate courts' scope of review is limited. Assuming no

error of law or unfairness in procedure, the court must affirm the administrative order of deportation if the order is supported by reasonable,

substantial, and probative evidence of record. Section 106(a)(4) of the

Act,. 8 U.S.C. 1105a(a)(4).

To hold that an alien under a final administrative order of deportation

remains a lawful permanent resident throughout the judicial proceedings would encourage spurious appeals to the courts, made solely-for the

purpose of accumulating more time toward eligibility for section 212(e)

relief. The termination of lawful permanent resident status upon the

entry of a final administrative order of deportation, on the other hand,

would result in no ultimate prejudice to the alien. In those relatively

rare instances where the court determines that the Board erred, as a

matter of fact or law, with respect to its deportability finding, reversal

of the Board's order of deportation nullifies the order and restores the

alien's lawful permanent resident status.We recognize that certain prior Board decisions, both precedent and

unreported, 9 suggest a result contrary to our present holding. See, e.g.,

Matter of Mosqueda, supra. However, we have never before directly

addressed the specific issue here presented. To the extent any conflict

exists, our decision in the instant case supersedes our previous decisions.

Other circumstances under which lawful permanent resident status may change include:

through rescission of adjustment of status under section 246 of the Act, 8 U.S.C. 1256 (see

Matter of Guiot, 14 I&N Dec. 393 (D.D. 1973); through adjustment to noninunigrant

status pursuant to section 247 of the Act, 8 U.S.C. 1257 (see Matter of S-, 6 I&N Dee. 392

(BIA 1954; A.G. 1955); when an alien departs the United States under an order of deportation (Matter of Mosqueda, 14 I&N Dec. 55 (R.C. 1972)) or under an order of exclusion and

deportation (Matter of Igal,10 I&M Dec. 460 (BIA 1964); and when he relinquishes such

status, intentionally (Matter of Montero, 14 l&N Dec. 399 (BIA 1973)) or unintentionally

(Malt-err of Kano, 15 I&N Dee. 258 (BIA .1975)).

Board decisions not selected as precedents are not binding in subsequent proceedings.

See generally 8 C.F.R. 3.1(g).

107

Interim Decision #2878

Lawfulness of Domicile

Prior to

Admission as Lawful Permanent Resident

To hold that the respondent's lawful permanent resident status ended

when the order of deportation outstanding against him became administratively final on July 30, 1976, does not end our inquiry in the case.

Pursuant to Lok v. INS, 548 F.2d 37 (2 Cir. 1977), which is binding upon

us in this and in other cases arising within the Second Circuit,' we must

also determine whether the respondent's domicile in this country immediately preceding:his December1971, admission for permanent residence

was "lawful" and, if so, whether that period of domicile, tacked onto his

indisputably lawful domicile following his acquisition of permanent resident status, totaled at least 7 years at the time of our July 1976 decision.

The respondent argues that his domicile in the United States was

lawful from the date of his marriage to a United States citizen in February 1968. He points to the fact, uneontroverted by the Government,

that he came•within the protection of formal Service policy as a consequence of his marriage whereunder he was permitted to remain in this

country, notwithstanding the 1965 deportation order outstanding against

him, until such time as he was eligible to apply for an immigrant visa.

Thus, the respondent insists, his lawful domicile, having begun on February 27, 1968, totaled more than 7 years by the time the immigration

judge rendered his May 1975 decision. We agree with the immigration

judge that no portion of the respondent's domicile prior to his admission

for permanent residence in December 1971 was lawful.

In order for an alien to establish a domicile in the United States, he

must be physically present in this country and have the intention of

residing here permanently or indefinitely. Anwo v. INS, 607 F.2d 435

(D.C. Cir. 1979); Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980),

and the cases cited therein. For that domicile to be considered "lawful,"

however, the alien's presence here must he lawful within the meaning of

this country's immigration laws. Cf. Kan. Kam Lin v. Rinaldi, 361

F.Supp. 177 (D. N.J. 1973), affd mem., 493 F.2d 1229 (3 Cir. 1974);

Ming v. Marks, 367 F.Supp. 673 (S.D.N. Y. 1973), affd, 505 F.2d 1170

(2 Cir. 1974); Matter of Dunar, 14 I&N Dee. 310 (BIA 1973). The Im(pigrition and Nationality Act sanctions the continuing presence in this

country of but one class of aliens other than those lawfully admitted for

permanent residence, namely, nonimmigrants in compliance with the

terms and conditions of their admission. See generally Kan Kam Lin v.

Rinaldi, supra;;Ming v. Marks,•supra; Matter of Dunar, supra.

An alien in breach of his nonimmigrant status, such as the respondent

.10

But see Matter of Anwo, supra.

108

Interim Decision #2878

in the instant case, has no claim of right under the Act to remain in this

country. The fact that the Government refrains, in an individual case or

as a matter of general policy, from instituting deportation proceedings

against an alien or enforcing his deportation does not legalize the status

of the beneficiary of the Government's forebearance. He remains in the

United States at the sufferance of the Government, not under any lawfill status accorded him by the Act."

The respondent's reliance upon the Second Circuit's decision in Holley

v. Lavine, 553 F.2d 845 (2 Cir. 1977), is misplaced. At issue in that case

was whether an alien with six United States citizen children who had

been given official assurance that the Service did not presently intend to

enforce her departure from this country was eligible under a federal

regulation which assured financial aid to qualified aliens residing permanently in the United States "under color of law." The court held in favor

of the alien, who had entered the country with a nonimmigrant student

visa, long since expired. Noting that the phrase "under color of law"

obviously included situations not covered by specific authorization of

law, the court left no doubt that the alien in question was "unlawfully

residing in the United States." Id. at 849. (Emphasis added.)

Furthermore, the respondent may not establish that he had a lawful

domicile in the United States even during the brief period his stay in

this country was authorized under our immigration laws. In order to

qualify as a nonimmigrant crewman, an alien must be one who "intends

to land temporarily and solely in pursuit of his calling as a crewman . . . ."

Section 101(a)(15)(D) of the Act, 8 U.S.C. 1101(a)(15)(D). An alien crewman may be granted authorization to land in this country for a period

not exceeding 29 days. Section 252 of the Act, 8 U.S.C. 1282; 8 C.F.R.

252.1(d).

In Elkins v. Moreno, 435 U.S. 647 (1978), the Supreme Court recognized that the intent to form a domicile in the United States is incompatible with the terms and conditions of an alien's admission as a nonimmigrant in the case of many of the nonimmigrant categories set forth in

section 101(a)(15) of the Act, including the nonimmigrant crewman

classification. Id. at 665. If the respondent complied with the terms of

his admission and did not intend to remain in the United States beyond

the fixed period of his temporary stay, then he was not "domiciled" in

this country. Conversely, if he did, intend to make the United States his

permanent home and domicile, he violated the conditions of his.gdmission and was not here "lawfully." See generally Elkins v. Moreno,

" We find nothing in Parco v. Morris, 962 F. Supp. 976 (E.D, Pa. 1977), a case commended

to us by the respondent concerning a different aspect of the Service policy here involved.

which would lead us to conclude that the respondent's domicile in this country prior to

December 1971 was lawful. In any event, as the Service point: out, Noel v. Chapman, 508

F.2d 1023 (2 Cir. 1975). not Perco v. Morris. supra. governs in the Second Circuit.

109

Interim Decision #2878

supra; Anwo v. INS, supra; Castillo-Felix v. INS, 601 F.2d 459 (9 Cir.

1979); Matter of Anwo, 16 I&N Dec. 293 (131A 1977).

On the basis of the foregoing discussion, we conclude that the

respondent's lawful domicile began with his admission for lawful permanent residence on December 26, 1971, and ended with the termination of

his lawful permanent resident status on July 30, 1076, when the order of

deportation outstanding against him became administratively finaL We

thus hold that the respondent is statutorily ineligible for the relief he

seeks under section 212(c) of the Act. The following order will be enter

ed.

ORDER The respondent's application for relief from deportation

under section 212(e) of the Act is denied.

Board Members Mary P. Maguire and James P. Morris abstained

from consideration of this case.

110