Bautista Castillo-Felix v. Immigration & Naturalization Service

Castillo-Felix petitions for review of a Board of Immigration Appeals (BIA) order denying him discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182 (c) (1976). He asserts that the Board incorrectly interpreted the statutory phrase “lawful unrelinquished domicile.” We affirm.

FACTS

Petitioner, a citizen and native of Mexico, illegally entered this country in 1963. Shortly thereafter, he commenced a common law relationship with a woman alien who had been admitted for permanent residence. 1 They now have five children, all born in the United States.

Petitioner was apprehended by the Immigration and Naturalization Service (INS) in November, 1969, and was given leave to depart voluntarily, at government expense, in lieu of deportation. 8 U.S.C. § 1252 (g) (1976). He left the country for one day, then illegally returned.

In October 1970, petitioner married his common law wife. He was apprehended the same year and again was granted voluntary departure, this time at his own expense. He remained in this country, however, because the INS proceeded to grant him a series of extensions of his voluntary departure date pending his…

dissenting.

I respectfully dissent.

The majority embraces the interpretation of the Immigration and Naturalization Services (INS) that the seven year residency requirement of § 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 (c), commences at the time an alien is granted lawful permanent residency, thereby placing this circuit in direct conflict with the Second Circuit, which held in Lok v. Immigration and Naturalization Service, *468 548 F.2d 37 (2d Cir. 1977) that the requisite residency need not have accrued after that time.

As the opinions in Lok and the present case aptly point out, the legislative history is shrouded in confusion and uncertainty, challenging the perceptiveness of its examiners. It is, therefore, not surprising that two diametrically opposed conclusions were reached. I, however, am persuaded by the humanitarian aspects and the fact that Congress considered and rejected harsher language.

I

“Deportation is a sanction which in severity surpasses all but the most Draconian criminal penalties.” Id. at 39 . It is the recognition of the devastating impact which is the genesis of discretionary forms of relief enacted by Congress, including §…

601 F.2d 459 Bautista CASTILLO-FELIX, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 78-1445. United States Court of Appeals, Ninth Circuit. July 30, 1979. Dennis W. Eller (argued), Puget Sound Legal Asst. Foundation, Tacoma, Wash., for petitioner. Philip Wilens, Dept. of Justice, Eric A. Fisher (argued), Crim. Div. No. 838, Washington, D. C., for respondent. On Petition to Review a Decision of the United States Immigration & Naturalization Service. Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 Castillo-Felix petitions for review of a Board of Immigration Appeals (BIA) order denying him discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182 (c) (1976). He asserts that the Board incorrectly interpreted the statutory phrase "lawful unrelinquished domicile." We affirm. FACTS 2 Petitioner, a citizen and native of Mexico, illegally entered this country in 1963. Shortly thereafter, he commenced a common law relationship with a woman alien who had been admitted for permanent residence. 1 They now have five children, all born in the…