Benjamin Lepe-Guitron v. Immigration and Naturalization Service

16 F.3d 1021 Benjamin LEPE-GUITRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 92-70505. United States Court of Appeals, Ninth Circuit. Submitted Dec. 10, 1993 * . Decided Feb. 15, 1994. Eric Beaudikofer, El Centro, California, for the petitioner. Thomas W. Hussey, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent. Petition for Review of Decision of the Board of Immigration Appeals. Before FLETCHER, PREGERSON, and RYMER, Circuit Judges. FLETCHER, Circuit Judge: 1 Petitioner, a deportable alien, appeals a decision of the Board of Immigration Appeals ("BIA"), finding him statutorily ineligible for the discretionary waiver of deportation provided for in 8 U.S.C. Sec. 1182 (c) ("section 212(c)"). The BIA held that the time during which petitioner lived as a minor child with his permanent resident parents in the United States, prior to himself independently attaining permanent residency, did not count toward the seven years of "lawful unrelinquished domicile" required to make him eligible for discretionary relief under section 212(c). 2 We have jurisdiction to review orders of deportation pursuant to…

Petitioner, a deportable alien, appeals a decision of the Board of Immigration Appeals (“BIA”), finding him statutorily ineligible for the discretionary waiver of deportation provided for in 8 U.S.C. § 1182 (c) (“section 212(e)”). The BIA held that the time during which petitioner lived as a minor child with his permanent resident parents in the United States, prior to himself independently attaining permanent residency, did not count toward the seven years of “lawful unrelin-quished domicile” required to make him eligible for discretionary relief under section 212(c).

We have jurisdiction to review orders of deportation pursuant to 8 U.S.C. § 1105a(a). This case requires us to decide whether, under section 212(c), a parent’s lawful unre-linquished domicile is imputed to his or her minor children. We hold that it is.

FACTS

Benjamin Lepe-Guitron is a native and citizen of Mexico. He states that his parents immigrated to the United States on September 16, 1976, and successfully applied to immigrate Lepe-Guitron, his sister, and one of his brothers. He further states that his parents and sister attained permanent resident status within two years thereafter, but that due to a…

dissenting:

However felicitous the majority’s result appears to be in the case of children, we have previously ratified the BIA’s long-standing policy that “to be eligible for [§ 212(c) ] relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence.” Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir.1979). It is undisputed that, at the time of the hearing before the IJ, Lepe-Guitron had accumulated less than four years of “lawful unrelinquished domicile after [his] admission for permanent residence.” Id. This should end the matter and we should deny the petition for review.

Instead, the majority accepts the reasoning of Rosario v. INS, 962 F.2d 220 (2d Cir.1992), which took the view that “lawfully admitted for permanent residence” and “lawful unrelinquished domicile of seven consecutive years,” as used in § 212(c), “are separate and independent conditions, neither [of which] purports to limit or qualify the other.” Id. at 223. On this reading of the statute, the Second Circuit has long held “that Congress planned for a permanent resident alien to be eligible for § 212(c) relief, provided that person can meet the…