UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 28, 1985
AYRTON O. REID, PETITIONER,
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT; AYRTON O. REID, PETITIONER, V. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT, AND EXECUTIVE OFFICE OF IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS, RESPONDENT
Gibbons and Becker, Circuit Judges and Katz, District Judge.*fn*
Opinion OF THE COURT
BECKER, Circuit Judge.
This is a petition for review of an order of the Board of Immigration Appeals (BIA), denying a motion by petitioner, Ayrton Reid, to reopen deportation proceedings.*fn1 The petition will be denied.*fn2
Ayrton Reid is a native and citizen of Jamaica who entered the United States in 1969 as a non-immigrant visitor-for-pleasure and subsequently married a United States citizen in 1972. On January 22, 1974, Reid was arrested in New Jersey for possession of marijuana. The next month he executed an application for an immigrant visa and alien registration at the United States embassy in Kingston, Jamaica.*fn3 He was admitted to this country as a lawful permanent resident on February 16, 1974.
The New Jersey Superior Court, Middlesex County, convicted Reid of possession of a controlled dangerous substance on December 2, 1974, after he entered a plea of guilty. Following this conviction, the Immigration and Naturalization Service (INS) issued an Order to Show Cause on February 24, 1975, pursuant to 8 U.S.C. § 1251(a)(11), which resulted in an April 9, 1975 decision of an Immigration Judge finding Reid deportable. After various proceedings instituted by Reid to gain reconsideration of the deportation order, the BIA entered a new deportation order on March 28, 1979. This court dismissed the petition for review on December 3, 1979. Reid v. Immigration and Naturalization Service, 612 F.2d 574 (3d Cir.1979) (judgment order).
After Reid's deportation was delayed by his application for several stays, he filed on January 12, 1984, a motion to reopen and reconsider his order of deportation and later supplemented this motion by asserting an additional ground for relief. The denial of this supplemented motion is at issue in this case.*fn4 We turn now to the two arguments advanced by Reid in support of the motion to reopen.*fn5
Reid first seeks discretionary relief from deportation pursuant to section 212(c) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1182(c). Before section 212(c) relief is available, the applicant must demonstrate as a threshold matter that he or she has maintained "a lawful unrelinquished domicile of seven consecutive years." 8 U.S.C. § 1182(c). Reid argues that he has met this requirement because he has resided in the United States ever since he was admitted as a lawful resident on February 16, 1974. See Petitioner's Supplemental Brief at 3, 7. Reid asks this court to establish a rule that a persons' domicile is unrelinquished for purposes of section 1182(c) until the person actually departs from the United States pursuant to a lawful order of deportation.*fn6
We are not aware of any decision by a court of appeals adopting the position pressed by appellant. Although differing among themselves as to the date when domicile is relinquished under the Act, all of these decisions have nevertheless looked to the date of some specific administrative or judicial action to determine the termination of an alien's domicile. See Marti-Xiques v. INS, 741 F.2d 350, 355 (11th Cir. Sept. 10, 1984) (on re-hearing) ("we conclude that eligibility for § 212(c) relief is determined as of the date of the order to show cause is issued.");*fn7 Wall v. INS, 722 F.2d 1442, 1444-45 (9th Cir.1984) (lawful domicile continues until a court of appeals completes consideration of the petition for review on the merits of the BIA order of deportation);*fn8 Lok v. INS, 681 F.2d 107, 110 (2d Cir.1982) (lawful domicile terminates when the BIA affirms a deportation order in cases in which there is no petition for review to the court of appeals).*fn9
Consonant with the views of the three circuits that have addressed the question, we reject Reid's contention that the termination of lawful domicile be tied to a person's actual departure from the United States. First, the suggested standard presents problems of fairness because it premises the availability of discretionary relief under § 1182(c) on a person's ability to avoid actual deportation pursuant to a finally determined deportation order. Second, petitioner's suggested termination date is not sufficiently attentive to the language of the statute which speaks of "lawful" domicile, in that a person's domicile can hardly be "lawful" once a deportation order has been judicially determined adversely to the petitioner.*fn10
However, we need not and do not decide in this case precisely at what point in the administrative and judicial process a person's lawful domicile is terminated. Such a decision is not necessary because, even if we assume that lawful domicile does not terminate until the merits of the original deportation decision have been fully resolved by the courts -- the position of the Wall court -- Reid has not met the threshold requirement of seven consecutive years of domicile: Reid became a lawful permanent resident in February of 1974, and this court denied the petition for review of the deportation order on December 3, 1979.
Reid's second claim is that he is eligible for relief pursuant to § 241(f) of the Act, 8 U.S.C. § 1251(f), which provides in essence that for purposes of deportation "a single offense of simple possession of 30 grams or less of marijuana may, in the discretion of the Attorney General, be waived for any alien" who meets certain requirement. Reid notes that his deportation order was predicated upon the marijuana possession conviction, and he argues that he has met his burden of proving a prima facie case of eligibility for relief by submitting an affidavit which includes his statement that "at the time of my arrest, there was approximately one ounce of marijuana." The BIA concluded, however, that Reid was not eligible for relief because the New Jersey state lab report issued at the time he was convicted in state court indicated that 626.1 grams of vegetation had been submitted for testing in connection with his case. This vegetation was identified as marijuana.
In reviewing the BIA's disposition of a motion to reopen deportation proceeding, this court's review is limited to determining whether the BIA abused its discretion. See Ravancho v. INS, 658 F.2d 169 (3d Cir.1981). Clearly, the BIA's conclusion is justified because of the sheer mass of the vegetation identified as marijuana in the lab report, which was equal to approximately 20 ounces, well more than one pound.*fn11
In sum, the BIA did not abuse its discretion in denying Reid's motion to reopen his deportation proceedings. Reid was unable to demonstrate a prima facie case of eligibility for relief under either 8 U.S.C. § 1182(c) or § 1251(f)(2). The petition for review in No. 84-3416 will be denied.*fn12 Because Reid's original deportation was ordered over seven years ago and the delays in this matter have been significant, the mandate will issue forthwith.