Aggravated Felonies

 

(F)  Lawful Domicile Requirement.  Seven years lawful unrelinquished domicile is required to be eligible for relief under former INA § 212(c).  This period ends upon entry of a final order of removal.[558]  A parent’s domicile in the United States is imputed to the parent’s unemancipated minor child for purposes of this requirement.[559]

 

While a noncitizen must be a lawful permanent resident to obtain a waiver under INA § 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal conviction occurring while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from denying that they are lawful permanent residents now.[560]  If the government mistakenly granted lawful temporary residence, the government’s remedy was to terminate the LTR status.[561]  Having failed to terminate, the person is a resident.[562]  Under the rescission cases and statute, the U.S. can rescind at any time if a noncitizen received LPR status by fraud.  After having LPR status for five years, the government cannot rescind in the absence of fraud.  Even if a noncitizen gets LPR status by fraud, s/he can still apply for 212(c) if s/he obtains a 237(a)(1)(H) waiver to forgive the fraud.[563]

(G)  Is INA § 212(c) Relief Available Where the Defendant Did Not Yet Have Seven Years Unrelinquished Domicile When the Plea Was Entered?  A noncitizen who entered a plea of guilty less than seven years after adjusting status to lawful permanent resident should still be considered eligible to apply for INA § 212(c) relief, even though, unlike the petitioner in INS v. St. Cyr, s/he had not by the date of plea yet accrued the full “lawful unrelinquished domicile of seven consecutive years.”  At least one Circuit court follows this rule.[564]

 

In an unpublished decision,[565] the BIA ruled that under the Second Circuit’s holding in INS v. St. Cyr,[566] an alien need not have accrued seven years’ unrelinquished domicile at the time of his or her plea agreement in order to qualify for INA § 212(c) relief.  The Board reasoned: “[t]he Service often waits several years after an alien is convicted to place him in proceedings and the proceedings often take several years after an alien is convicted to complete.”  In reply to the Service’s argument that a respondent without the required seven years’ unrelinquished domicile could not reasonably have relied on the availability of § 212(c) relief, the Board stated it did not “believe that the Second Circuit requires an alien to show specific reliance on the availability of § 212(c) relief.”[567]  This reasoning should apply with equal force to the Supreme Court’s decision because the high court adopted the Second Circuit’s reasoning with little embellishment.  Moreover, the noncitizen had a right to expect that the seven years would continue to accrue even after the plea had been entered, since that was the law at the time of the plea. 

 

While unpublished decisions do not bind the Board absolutely,[568] if an agency decides to depart from its earlier interpretation, it must confront the issue and explain why the change is reasonable.[569]  Since no change in the law or difference in circumstances justifies a departure from this line of reasoning, it should be followed.[570] 

 

            New Regulations:  The new regulations codify the rule that the noncitizen must have “seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal.”[571]

[558] See § 2.44(G), infra.

[559] Lepe-Guitron v. INS, 16 F.3d 1021, 1025-1026 (9th Cir. 1994) (because a child’s domicile follows that of his or her parents, the parents’ domicile in the United States is imputed to the parents’ unemancipated minor child for purposes of the seven years “lawful unrelinquished domicile” required for discretionary waiver under the now-repealed INA § 212(c), 8 U.S.C. § 1182(c)); accord, Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) (even if child is outside of the United States).

[560] But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005).

[561] See INA § 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990).

[562] See INA § 246; Matter of Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted under INA § § 245 or 249).

[563] Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993).  See also Perez-Enriquez v. Gonzales, 411 F.3d 1079 (9th Cir 2005).  Thanks to Dan Kesselbrenner.

[564] Alvarez-Hernandez v. Acosta, 401 F.3d 327 (5th Cir. Feb. 17, 2005) (noncitizen need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA § 212(c), 8 U.S.C. § 1182(c) relief under INS v. St. Cyr; following rule that seven years for domicile for § 212(c) stops at time of application for § 212(c)).  See also Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005).

[565] Matter of Asirvatham,  A40 104 383 (BIA, June 15, 2001) (unpublished), 78 Interpreter Releases 1205 (July 23, 2001).

[566] INS v. St. Cyr, 229 F.3d 406 (2d Cir. 2000), affirmed by 533 U.S. 289 (2001).

[567] Ibid., 78 Interpreter Releases 1205, 1207 (July 23, 2001). 

[568] 8 C.F.R. § 1003.1(g); Chan v. Reno, 113 F.3d 1068 (9th Cir. 1997).

[569] Unpublished decisions are not a license to “adopt significantly inconsistent policies that result in conflicting lines of precedent.”  Davila-Bardales v. INS, 27 F.3d 1 (1st Cir. 1994). 

[570] Thanks to Paul Zoltan for this argument.

[571] 8 C.F.R. § 1003.44(b)(3) (emphasis added).