Interim Decision #2604 

MATTER OF ANWO 

In Deportation Proceedings 

A-19395836 

Decided by Board August 4, 1977 

(1) The respondent, a native and citizen of Liberia was admitted to the United States as a 

nonimmigrant student on December 9, 1969, and was accorded lawful permanent 

resident status on October 11, 1973. On September 9, 1975, he was convicted for 

possession of marihuana in violation of section 402 of Title 33, of the District of Columbia 

Code. Respondent was subsequently found deportable under section 241(a)(11) of the 

Immigration and Nationality Act and ordered deported to Liberia. 

(2) Relief under section 212(c) of the Act is available only to an alien who has established 

lawful permanent residence and maintained it for seven consecutive years. Nothing in 

the statutory language or legislative history indicates a Congressional intent to extend 

the same benefit to une whose "dumicile" here was accrued as a nonimmigrant. 

(3) Respondent is statutorily ineligible for relief under section 212(c) of the Act because he 

has not been a lawful permanent resident for seven consecutive years. 

(4) Board declines to follow the rationale expressed in Tim Lok v. INS, 548 F.2d 37 (2 Cir. , 

1977), in cases arising outside of the second circuit. Nevertheless, respondent would not 

even qualify for relief under the rationale expressed in Tim Lok v. INS, because he was 

admitted as a nonimmigrant student. Under these circumstances, a fixed intent to 

remain in the United States, which is a necessary ingredient of domicile, would have 

rendered respondent's nonimmigrant status and domicile in this country unlawful and 

thus not within the second circuit's holding in Tim Lok, supra. 

CHARGE: 

Order Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of violation of 

law or regulation relating to the illicit possession of marihuana 

ON REM LP OP RESPONDENT: ON BEHALF OF SERVICE: 

Lois E. Bruckner, Esquire Mary Jo Grotenrath 

3423 Olney-Laytonsville Road Appellate Trial Attorney 

Olney, Maryland 20832 

BY: Milhollan, Chairman; Wilson, Maniatis, Appieman, and Maguire, Board Members 

In a decision dated January 26, 1977, the immigration judge found the 

respondent deportable under section 241(a)(11) of the immigration and 

Nationality Act as an alien who had been convicted of an offense relating 

to the illicit possession of marihuana, and ordered him deported to 

Liberia. The respondent appealed from that decision, originally arguing 

tb at deportation on the stated charge would be in violation of the 

respondent's rights under the Fifth Amendment to the United States 

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Constitution. In oral argument before this Board, however, the respondent, through counsel, requested that we remand the record to the 

immigration judge for consideration of the respondent's claim for relief 

from deportation under section 212(c) of the Act and the decision of the 

United States Court of Appeals for the Second Circuit in Tim Lok v. 

INS, 548 F.2d 37 (2 Cir. 1977), rehearing denied March hi, 1977. For 

the reasons that follow, the respondent's request for remand of the 

record will be denied, and the appeal will be dismissed. 

The respondent, a native and citizen of Liberia, was admitted to the 

United States as a nonimmigrant student on December 9, 1969, and was 

accorded lawful permanent resident status on October 11, 1973. On 

September 9, 1975, he was convicted in United States District Court of 

possession of five pounds of marihuana, in violation of Title 33, District of 

Columbia Code, §402. 

I 

in his brief submitted to the immigration judge and incorporated into 

the record on appeal, the respondent argues that section 241(a)(11) of 

the Act as it relates to lawful permanent residents convicted of possession of marijuana is in violation of the Fifth Amendment to the United 

States Constitution. However, it is beyond the power of the Board to 

entertain constitutional challenges to the Act itself. Matter of 4 I. 

& N. Dec. 556 (BIA 1951); see also Matter of Wong, 13 I. & N. Dec. 820 

MIA 1971). This claim, therefore, is pressed by the respondent in an 

inappropriate forum. Upon a review of the record, we find that deportability under section 241(a)(11) has been established by clear, convincing, 

and unequivocal evidence. 

II 

Section 212(c) was enacted in 1952 1to replace the Seventh Proviso to 

section 3 of the Immigration Act of 1917. 2Under this latter section, an 

alien otherwise inadmissible under certain provisions of the predecessor 

to section 212(a) but returning after a temporary absence to an =relinquished United States domicile of seven consecutive years could be 

admitted in the discretion of the Attorney General under such condiawns as he might prescribe. 

Section 212(c), as enacted in 1952, contained two significant restrictions upon the discretionary power conferred upon the Attorney General under the Seventh Proviso. First, under section 212(e), relief is 

only available to "aliens lawfully admitted for permanent residence who 

Proceeded abroad voluntarily and not under an order of deportation." 

_Act of June 27, 1952, 66 Stat. 163; 8 U.S.C. 1192(c). 

2 Act of February 5, 1917, 39 Stet. 878; ch. 29, §3. 

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Second, section 212(c) contains the requirement that the lawful permanent resident alien be returning to a "lawful" unrelinquished domicile of 

seven years. 

The scope of permissible discretion exercisable under the Seventh 

Proviso was administratively enlarged early on to allow a nunc pro tune 

waiver of a ground of inadmissibility in deportation proceedings. See 

Matter of L— , 1 1. & N. Dec. 1 (A.G. 1940). The availability of nuwc pro 

bow waivers of inadmissibility was reaffirmed after the enactment of 

section 212(c). See Matter of Tudwri, Interim Decision 2467 (BIA 1976). 

Following the decision of the United States Court of Appeals for the 

Second Circuit in Francis v. INS, 532 F.2d 268 (2 Cir. 1976), w-e held 

that relief under section 212(c) was available in deportation proceedings 

notwithstanding the fact that the respondent had not effected a 'departure and entry following the acts which rendered him excludable and 

deportable. Matter of Silva, Interim Decision 2532 (BIA 1976). The 

respondent, therefore, is not precluded from asserting a claim to section 

212(c) relief by reason of his failure to effect a departure and reentry, if 

he is otherwise eligible under the statute. 

To establish eligibility for section 212(c) relief, a respondent must 

establish that he has maintained a "lawful unrelinquished domicile" in 

the United States for seven consecutive years. Based upon our understanding of the Congressional intent as reflected by the legislative 

history of this provision and the restrictive attitude which attended its 

incorporation into the Immigration and Nationality Act of 1952 (see Tim, 

Lok v. INS, supra, at 41), we have long held that the phrase "'lawful 

unrelinquished domicile" meant that the alien must have maintained a 

domicile in the United States for seven consecutive years subsequent to 

his lawful admission for permanent residence. See Matter of 5—, 5 L & 

N. Dec. 116 (BIA 1053); Matter of Lok, Interim Decision 2509 (BIA 

1976). 

This interpretation of section 212(c) was followed without judicial 

challenge for some 24 years. However, it has recently been rejected by 

the United States Court of Appeals for the Second Circuit in Tim Lok v.. 

INS, supra. The court in that case, overruling the decision of the Board 

in Matter of Lok, supra, rejected the interpretation of "lawful unrelinquished domicile" set forth in Matter of S—, supra. Noting the Congressional purpose of reuniting families, described in its holding in/Two/cis 

v. INS, supra, the court held that there existed no direct legal equation 

between the terms "lawfully admitted for permanent residence" and 

"lawful unrelinquished domicile." It concluded that it was in fact possible for an alien to possess a "lawful domicile" in the United States 

without having been admitted for permanent residence, and therefore 

remanded the ease to this Board for determination of whether the 

domicile prior to his adjustment of status had been "lawful." 

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However, we continue to believe that the general Congressional 

policy of reuniting families as described in Francis v. INS, supra, and 

relied upon by the court in Tim Lok, must give way, in the interpretation of section 212(c), to the specific Congressional intent to restrict the 

scope of permissible discretion which had been available to the Attorney 

General under the Seventh Proviso to section 3 of the Immigration Act 

of 1917. 3The relief available under the Seventh Proviso and section 

212(c), as with all provisions providing discretionary relief from the 

statutory mandates of the Immigration and Nationality Act, springs, of 

course, from the Congressional belief that exclusion and deportation in 

some circumstances would be inhumane. However, section 212(e) was 

enacted in 1 952 specifically to restrict the implementation of this policy 

to certain classes of aliens. It is this restrictive intent, rather than the 

more general policies governing all relief provisions under the Act, 

which should govern the interpretation of the language added to section 

212(c) and not previously in the Seventh Proviso. 

Accordingly, we adhere to our belief that section 212(c) was designed 

as means of waiving a disability which would otherwise bar a long term 

lawful permanent resident of the United States from returning to (or, 

since Francis, continuing) his extensive lawful domicile in this country, 

and is available only to one who has: (a) established a lawful permanent 

residence, and (b) maintained it for seven years. Nothing in the statutory language or the legislative history indicates a Gong' essiunal intent 

to extend the same benefit to one who may have eked out all or part of 

seven years of "domicile" while here as a nonimmigrant. 

The lawful permanent resident has met extensive quantitative and 

qualitative standards at time of entry as an immigrant. He has, legally 

and properly, established ties to this country. He may work. He normally looks toward citizenship and will have that privilege in time. He 

enjoys greater rights than the nonimmigrant alien and assumes comraensurate responsibilities and duties. It is reasonable that after seven 

years of such lawful resident status the Congress intended he should not 

lightly be held barred from continuing in that status under the exclusionary provisions of the statute. 

On the other hand, the statutory scheme clearly reflects an entirely 

different view of the nonimmigrant. He has none of the foregoing 

attributes. He is expected to enter, accomplish the purpose of his visit, 

and to leave within a relatively short period of time. It is not reasonable 

to believe that the Congress visualized him as remaining here for years, 

until such time as he could achieve lawful permanent residence, and thus 

qualify for benefits of section 212(c). We remain persuaded that the 

words "who are returning to a lawful unrelinquished domicile of seven 

3S. Rep. No. 1515, 81st Cong., 2d Sess. 384 (1950); H.R. .Etep. No. 1365, 62d Gong., al 

Suess. 51 (1952). 

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Interim Decision #2604 

consecutive years," in section 212(c), were intended to impose the requirement that the alien applicant for section 212(c) relief has been in 

lawful permanent resident status for seven consecutive years. 

The difficulties resulting from the Second Circuit Court of Appeals' 

interpretation of section 212(c) become apparent when the entire 

scheme of discretionary relief from deportation under the Immigration 

and Nationality Act is considered. It is a well-settled principle of statutory construction that all sections of an Act must be reconciled if possible 

so as to produce a symmetrical whole. General Motors Acceptance Corp. 

v. W hisnant, 387 F.2d 774 (5 Cir. 1968); Maiattoo v. United States, 302 

F.2d 880 (D.C. Cir. 1962). Section 212(c) must be interpreted in light of 

the other provisions of the Act according relief from deportation. When 

the interpretation of that section adopted by the court in Tim Lok, 

supra, is viewed in perspective alongside the relief afforded a deportable alien under section 244(a) of the Act a, it becomes apparent that the 

court's interpretation would render this latter section largely nugatory. 

Suspension of deportation under section 244(a) of the Act is potentially available to the class of aliens, whether in illegal, nonimmigrant, 

or resident status, who satisfy the seven or ten-year United States 

residence requirements. However, the applicant for seetion. 244(a) relief 

must also meet strict qualitative requirements. He must e stablish that 

he has been a person of good moral character throughout the statutory 

period. He must establish that his deportation would cause an extreme 

degree of hardship to himself or to specified relatives who are United 

States citizens or lawful permanent residents. In short, whether the 

applicant is illegal, a nonimmigrant, or a lawful permanent resident, his 

mere residence in the United States for a period of seven or ten years 

will not entitle him to relief from deportation. 

By contrast, section 212(c) imposes no strict standards which must be 

met before an applicant is able to escape deportation. The alien applying 

for section 212(c) relief has only to show that he is a lawful permanent 

resident and that he has maintained a "lawful unrelinquished domicile" 

in the United States for a period of seven consecutive years. In light of 

the lesser standards which must be met before relief from deportation 

can be accorded under section 212(c), the class of aliens to which it 

applies must therefore be distinct from, and possess a stronger relationship with this country than, the class of aliens eligible for suspension of 

4 Under section 244(a), an alien found deportable under the Act who establishes continuous physical presence in the United States for a period of either seven or ten years, 

who establishes that he has been a person of good moral character for the same period, and 

who establishes that his deportation would cause a specified degree of hardship to himself 

or to specified relatives 'who are United States citizens or lawful permanent residents, 

may, in the discretion or the Atturney General, have hie deportation et:vended and his 

status adjusted to that of a lawful permanent resident. 

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deportation. Otherwise, the hardship and good moral character requirements of section 244(a) as this section applies to deportable lawful 

permanent resident aliens would be rendered nugatory. We conclude, 

therefore, that if the strict standards embodied in section 244(a) are not 

to be read out of the Act, section 212(c) cannot be interpreted to apply to 

lawful permanent residents who have not been in such status for a 

period of seven years. 

We decline, therefore, to adopt the holding of the Court of Appeals 

for the Second Circuit in Tim Lok v. INS, supra, in cases arising outside 

the Second Circuit. Accordingly, we adhere to our interpretation of 

section 212(c) as set forth in Matter of S—, supra, and hold that relief 

under section 212(c) is only available to a lawful permanent resident 

alien who has been a lawful domiciliary of the United States for seven 

consecutive years subsequent to achieving lawful permanent resident 

status. 

III 

Moreover, we note that even under the interpretation of section 

212(c) adopted by the court in Tim Lok v. INS, supra, the respondent in 

this case would be ineligible for relief under section 212(c). The respondent was admitted to the United States as a student in 1969. In 1973, his 

status was adjusted to that of a permanent resident. 5Thus, during three 

of the seven yearn during which he now claims Lo have been a 

domiciliary, he was in nonimmigrant student status. 

The term "domicile" is not defined in the Act itself. However, courts 

have consistently held that domicile is established upon proof of residence, combined with the "intent to make [that residence] a fixed and 

permanent home." Johansen v. Confederation Life Association, 447 

F.2d 175, 180 (2 Cir. 1971); Gilbert v. David, 235 U.S. 561, 569-570 

(1915); illitchell v. United States, 21 Wall. (88 U.S.), 350, 353 (1875); 

Matter of Carron°, Interim Decision 2579 (BIA 1977); Matter 

of Garcia., Interim Decision 2366 (BIA 1975). 

A_ student may establish that he is domiciled at his place of instruction_ Stiel v. Hopkins, 477 F.2d 1116 (6 Cir. 1973). However, an alien 

student, admitted as a nonimmigrant under section 101(a)(15)(F), is 

subj ect to special restrictions with respect to domicile_ Section 

101(.a)(15)(F) defines a nonimmigrant student as one "who seeks to enter 

the -United States temporarily and solely for the purpose of pursuing 

... a course of study at an established institution of learning. . . ." 

(Ern phasis supplied). The alien student is admitted to the United 

The record does not reveal whether the respondent remained in student status until 

his adjustment in 1973. If he did not, and that status lapsed, his domicile was clearly not 

lawful], and he is preelmled from obtaining seetion212(c) relief. However, we shall assume 

for tine purpose of our discussion that the respondent's student status at no time lapsed. 

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States, therefore, under the express condition that he depart at the 

expiration of his nonimmigrant visa. Any contrary intent will render his 

nonimmigrant student status unlawful. Matter of Gallares, 14 I. & N. 

Dec. 250 (BIA 1972). By definition, the fixed intent to remain which is 

necessary to establish domicile necessarily involves a violation of lawful 

nonimmigrant student status. Therefore, to the extent that the respondent has established, by his intent to remain indefinitely in the United 

States, a domicile in this country, this domicile was unlawful. The 

respondent is therefore ineligible for relief under section 212(c) even 

under the interpretation of that provision enunciated by the court in Tim 

Lok v. INS, supra. 

The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

299