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Graham v. I.N.S.

filed: July 12, 1993.

LLOYD ASTON GRAHAM, PETITIONER
v.
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS DATED SEPTEMBER 17, 1992 (No. A23-519-116).

Before: Scirica, Cowen, and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

Petitioner applied for discretionary relief from an order of deportation contending that he had satisfied the statutory requirement of a seven year domicile in the United States. The Board of Immigration Appeals denied relief concluding that the seven-years could be calculated only from the date petitioner obtained permanent resident status and, therefore, the prior period when petitioner was lawfully in this country could not be used to determine eligibility. We will deny the petition for review, but on a more limited rationale than that used by the Board.

Petitioner, a citizen of Jamaica, entered the United States as a nonimmigrant, temporary worker on October 28, 1983. He was subsequently granted permanent residence as the spouse of a lawful permanent resident on December 12, 1985. He has continued to reside in the United States since that time.

On August 2, 1990, petitioner was convicted in the Common Pleas Court of York County, Pennsylvania, of possession with intent to deliver crack cocaine. Based on that conviction, the Immigration and Naturalization Service ("INS") began deportation proceedings.

At a hearing on December 19, 1991, an immigration Judge found petitioner deportable under 8 U.S.C. §§ 1251(a)(2)(A)(iii) & 1251(a)(2)(B)(i). Petitioner then applied for discretionary relief under 8 U.S.C. § 1182(c). The immigration Judge found that petitioner was not eligible under that provision because he had not been a lawful permanent resident for seven years. The Board agreed with the immigration Judge, and petitioner has asked for review of the Board's decision.

Petitioner contends that more than seven years elapsed from the date when he legally entered this country and, therefore, he is entitled to apply for relief under section 1182(c). Our review of this legal issue is plenary. Tovar v. INS, 612 F.2d 794, 797 (3d Cir. 1980).

Aliens who seek admission to the United States may be excluded if they fall within any of the categories enumerated in 8 U.S.C. § 1182(a). Section 1182(c), which allows for the possible waiver of the exclusion provisions for certain aliens, provides that: "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 . . . ."

8 U.S.C. § 1182(c).

Although section 1182(c) appears to apply only to exclusion proceedings, the provision has been extended to deportation proceedings when deportees meet the requirements of the statute. See Castillo-Felix v. INS, 601 F.2d 459, 462 (9th Cir. 1979). Moreover, although the statute seems to require actual departure from the United States, the INS no longer considers that a requirement. Id. at 462 n.6; cf. Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976). In light of these "modifications," section 1182(c) now provides an avenue for discretionary relief if an alien (1) is "lawfully admitted for permanent residence" and (2) has maintained a "lawful unrelinquished domicile of seven consecutive years."

In this case, petitioner clearly satisfies the first requirement of lawful admission for permanent residence. The question is whether he has maintained a lawful domicile in the United States for seven years.

The Immigration and Nationality Act does not define the term "lawful domicile", but it is used in other areas of law. The Supreme Court has commented that "domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989) (interpreting the Indian Child Welfare Act of 1978). Applying that reasoning to section 1182(c), the Court of Appeals for the Eleventh Circuit held that domicile means "at least the simultaneous existence of lawful physical presence in the United States and lawful intent to remain in the United States indefinitely." Melian v. INS, 987 ...


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