1 United States Court of Appeals,

Fifth Circuit.

No. 94-40440.

Yassin Hassan HUSSEIN, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Aug. 17, 1995.

Petition for Review of an Order of the Board of Immigration

Appeals.

Before POLI TZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

The Immigration and Naturalization Service ("INS") initiated

deportation proceedings against Yassin Hassan Hussein, a citizen of

Egypt and, at the time, a lawful permanent resident ("LPR"). An

immigration judge ("IJ") ordered Hussein deported, and he appealed

to the Board of Immigration Appeals ("BIA"). The BIA dismissed his

appeal, and Hussein petitions this Court for review of the BIA's

dismissal. We deny his petition.

I

H ussein began residing in the United States unlaw fully

sometime before January 1, 1982. He has continued to reside in the

United States since that time. On December 10, 1988, Hussein

obtained lawful permanent resident ("LPR") status under the amnesty

provisions of the Immigration Reform and Control Act ("IRCA"), 81 In pertinent part, IRCA provided for the adjustment from

illegal status to lawful permanent residence for aliens who could

prove, inter alia, that they had resided in the United States

illegally since sometime before January 1, 1982, through the date

on which they filed an application for LPR status. 8 U.S.C. §

1255a(a)(2)(A). An alien who met the statutory requirements

under § 1255a(a) was granted lawful temporary residence, which

could subsequently be adjusted to lawful permanent residence.

See 8 U.S.C. § 1255a(b).

2 Subsection (a) designates classes of excludable aliens

based on health, criminal, security, and other grounds. See 8

U.S.C. § 1182(a).

3 We explained the origin of this extension in Ghassan:

2 U.S.C. § 1255 a (1994). 1 Hussein was subsequently convicted of

theft, theft by check, and injury to a child, and the INS initiated

deportation proceedings against him.

At his deportation hearing, Hussein conceded de portability

and sought to apply for a waiver of deportation under section

212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §

1182(c) (1994). Section 212(c) provides:

Aliens lawfully admitted for permanent residence who

t emporarily proceeded abroad voluntarily and not un der an

order of deportation, and who are returning to a lawful

unrelinqu ished domicile of seven consecutive years, may be

a dmitted in the discretion of the Attorney General without

regard to the provisions of subsection (a) of this section. [ 2 ]

8 U.S.C. § 1182(c). Although by its terms, section 212(c) applies

to the admission of aliens returning to the United States after a

temporary departure, we have interpreted it to apply to LPR's who

face deportation. S ee Prichard-Ciriza v. I.N.S., 978 F.2d 219, 222

(5th Cir.1992) (citing Ghassan v. I.N.S., 972 F.2d 631, 633-34 & n.

2 (5th Cir.1992), cert. denied,

--- U.S. ----, 113 S.Ct. 1412, 122

L.E d.2d 783 (1993)). 3 This means that if an alien meets theBy its terms the statute seems to apply only to aliens

who temporarily left the country voluntarily, but the

Second Circuit has held that the Equal Protection

Clause forbids distinguishing between aliens who

briefly left and reentered the country and are facing

deportation proceedings and those who have not left and

are being deported. See Francis v. INS, 532 F.2d 268,

272-73 (2d Cir.1976). The BIA applies the Second

Circuit's ruling nationwide. See Ashby v. INS, 961

F.2d 555, 557 n. 2 (5th Cir.1992); Mantell v. United

States Dep't of Justice, 798 F.2d 124, 125 (5th

Cir.1986).

Ghassan, 972 F.2d at 633-64 n. 2.

4 See Matter of Anwo, 16 I. & N. Dec. 293 (B.I.A.1977)

(holding that seven-year period in § 212(c) begins to run only

when alien attains lawful permanent resident status); accord

Matter of Kim, 17 I. & N. Dec. 144 B.I.A.1979); Matter of S, 5

I. & N. Dec. 516 (B.I.A.1953).

3 criteria of section 212(c), that is, if he has attained lawful

permanent residence and has maintained a "lawful unrelinquished

domicile of seven consecutive years," he is eligible to apply for

a waiver of deportation. The decision to grant a waiver of

deportation remains within the discretion of the Attorney General.

8 U.S.C. § 1182(c).

The IJ pretermitted Hussein's application for section 212(c)

relief on the grounds that Hussein was ineligible for such a

waiver. The IJ applied the BIA's longstanding interpretation of

section 212(c), which equates "lawful unrelinquished domicile" with

lawful permanent residence, 4 and she held that because Hussein had

become a lawful permanent resident on December 10, 1988, he could

not establish that he had maintai ned a lawful unrelinquished

domicile for seven consecutive years.

Hussein appealed the IJ's decision to the BIA, challenging the5 In Chevron, "the Supreme Court established a two-step

method for judicial review of an agency's interpretation of a

statute that it administers." Mississippi Poultry Ass'n, Inc. v.

Madigan, 31 F.3d 293, 299 (5th Cir.1994) (en banc). First,

courts "use "traditional tools of statutory construction' to

ascertain whether "Congress has directly spoken to the precise

question at issue.' " Id. (quoting Chevron, 467 U.S. at 842-43 &

n. 9, 104 S.Ct. at 2781 & n. 9). "If, but only if, the language

of the statute is determined to be either ambiguous or silent on

the particular issue is the reviewing court to proceed to the

second Chevron inquiry: "whether the agency's answer is based on

a permissible construction of the statute.' " Id. (quoting

Chevron, 467 U.S. at 843, 104 S.Ct. at 2782).

4 IJ's interpretation of section 212(c) and arguing that his lawful

domicile in the United States began on November 6, 1986, the

effective date of IRCA. The BIA affirmed the IJ's interpretation

of section 212(c) and dismissed Hussein's appeal, r endering his

deportation order final. Hussein now petitions this Court for

review of the BIA's decision, arguing that the BIA and IJ

erroneously interpreted section 212(c).

II

Hussein argues th at the BIA erroneously interpreted section

212(c) of the INA by equating "lawful unrelinquished domicile" with

lawful permanent residence. The Attorney General argues that

because § 212(c) is ambiguous, the BIA's interpretation is entitled

to deference under Chevron U.S.A. , Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984). 5

Prior to the enactment of IRCA, the circuit courts of appeals

were split over the validity of the BIA's interpretation of the

seven-year domicile requirement of sect ion 212(c). The Fourth

Circuit and the Ninth Circuit deferred to the BIA's interpretation5

of § 212(c), see Chiravacharadhikul v. I.N.S., 645 F.2d 248, 250-51

(4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d

207 (1981); C astillo-Felix v. I.N.S., 601 F.2d 459, 464-67 (9th

Cir.1979), and the Second Circuit rejected the BIA's interpretation

as inconsistent with congressional intent , as evidenced by the

plain language of the statute and its legislative history. S ee Lok

v. I.N.S., 548 F.2d 37, 40-41 (2d Cir.1977). Since the enactment

of IRCA, the Ninth Circuit has limited its holding in CastilloFelix a nd held that an alien who gains LPR status under IRCA's

a mnesty provisions establishes lawful domicile as of the date of

his or her application for temporary resident status. See Robles

v. I.N.S., 58 F.3d 1355, 1360-61 (9th Cir.1995). The Fourth

Circuit has not revisited its holding in Chiravacharadhikul since

the enactment of IRCA.

In Castellon-Contreras v. I.N.S., 45 F.3d 149 (7th Cir.1995),

the Seventh Circuit joined the Second Circuit's position in Lok and

held that the BIA's interpretatio n of section 212(c) is

inconsistent with the plain language of the statute. Id. at 153.

The Seventh Circuit held that the term "domicile" should be given

its common law meaning and defined "lawful domicile" with reference

to the le gality of an alien's status and his "intent to remain."

Id. The court stated that an alien who gained LPR status would be

considered lawfully domiciled in the United States beginning on the

date of his application for temporary resident status. I d. at 154;

accord Robles, 58 F.3d at 1360-61. However, because the court

determined that the petitioner in Castellon-Co ntreras could not6 See also Avelar-Cruz v. INS, 58 F.3d 338, 341 (7th

Cir.1995) (reversing BIA decision and holding that alien "became

a lawful domiciliary on [the date on which] he became a lawful

temporary resident under IRCA's amnesty provisions").

6 have applied for an adjustment to temporary resident stat us more

than seven years before his deportation order became final, it

affirmed the BIA's determination that he was ineligible for a

section 212(c) waiver. Castellon-Contreras, 45 F.3d at 154. 6

This Court, like the D.C., Third, and Eleventh Circuits, has

noted the split in the circuits but has neither rejected nor upheld

the BIA's interpretation. S ee, e.g., Madrid-Tavarez v. I.N.S., 999

F.2d 111, 112-13 (5th Cir.1993) (noting circuit split but declining

to decide issue because alien entered country i llegally without

immigrant visa and therefore had no legal status and could not

establish lawful domicile even under Second Circuit's

interpretation of section 212(c) in Lok ); Graham v. I.N.S., 998

F.2d 194, 195-96 (3d Cir.1993) (same, holding that alien could not

establish lawful domicile during time spent a s nonimmigrant

temporary worker); M elian v. I.N.S., 987 F.2d 1521, 1524-25 (11th

Cir.1993) (same, holding that alien could not establish lawful

domicile during time spent on temporary tourist visa); A nwo v.

I.N.S., 607 F.2d 435, 437 (D.C.Cir.1979) (same, holding that alien

could not establish lawful domicile during time spent on temporary

student visa).

Thus, no circuit has upheld the BIA's view that an alien who

attains LPR status through IRCA's amnesty provisions does not

become lawfully domiciled until he attains LPR status. Indeed, the7 Compare Madrid-Tavarez v. I.N.S., 999 F.2d at 112 (not

reaching statutory interpretation question because petitioner

could not establish lawful domicile under Lok during time spent

as illegal alien).

7 only two courts that have addressed the validity of the BIA's

restrictive view of section 212(c) as it applies to aliens granted

amnesty under IRCA have rejected it. See Castellon-Contreras, 45

F.3 d at 153-54; R obles, 58 F.3d at 1360-61. The only circuit

authority generally supporting the BIA's position is

Chiravacharadhikul v. I.N.S., 645 F.2d 248 (4th Cir.1 981), a

pre-IRCA case that the Fourth Circuit has neither revisited since

the passage of IRCA nor applied to an alien who attained LPR status

through IRCA's amnesty provisions.

We do not reach the validity of the BIA's interpretation of

section 212(c) in this case, however, because even if we assume

that "lawful domicile" is not limited to lawful permanent

residence, Hussein has not established that he maintained a lawful

domicile in the United States for seven years preceding his

deportation. 7

Hussein applied for and received temporary and then permanent

resident status under the amnesty provisions of IRCA, 8 U.S.C. §

1255a. Under IRCA, the earliest date that Hussein could have

a pplied for temporary residency was May 5, 1987. S ee 8 U.S.C. §

1255a(a)(1)(A) (establishing application period as beginning on

date designated by Attorney General); 8 C.F.R. § 245a.2(a)(1)

(1995) (designating May 5, 1987 as beginning date for amnesty

application period). Therefore, the earliest date his lawful8 Hussein's deportation became final, and his lawful

permanent resident status ended, on April 22, 1994, because that

is the date on which the BIA dismissed Hussein's appeal of the

IJ's order of deportation. See Prichard-Ciriza v. I.N.S., 978

F.2d 219, 223 (5th Cir.1992) (holding that alien's deportation

became final, and his lawful permanent residence ended, on date

BIA dismissed alien's appeal of IJ's order of deportation);

Rivera v. I.N.S., 810 F.2d 540, 541-42 (5th Cir.1987) (holding

that alien's deportation became final, and his lawful permanent

residence ended, on date BIA affirmed IJ's order of deportation);

accord Castellon-Contreras, 45 F.3d at 155 & n. 8.

9 Because Hussein would not be eligible for a § 212(c) waiver

even assuming he applied on the first possible date for amnesty,

we need not, as Hussein argues we must, remand for a factual

determination of when he actually applied for and received lawful

temporary and permanent resident status.

8 temporary resident status could have become effective was May 5,

1987. S ee 8 C.F.R. § 245a.2(s) (providi ng that status of alien

whose application for tempo rary residency is approved shall be

adjusted to lawful temporary residence as of filing date of

application). However, Hussein's deportation became final on April

22, 1994, le ss than seven years later. 8 Consequently, even

assuming Hussein's status had been a djusted to lawful temporary

resident on the earliest possible day, May 5, 1987, he would not be

eligible for a waiver of deportation under section 212(c). 9

Hussein argues that he became a lawful domiciliary on the

date that IRCA became effective, November 6, 1986, because after

that date the INS could not freely deport him. S ee 8 U.S.C . §

1255a( e)(1). Under section 1255a(e), titled "temporary stay of

deportation and work authorization for certain applicants," an

alien who was appreh ended before the beginning of the amnesty

application period and who established "a prima facie case of

eligibility to have his status adjusted under subsection (a)...."10 The Seventh Circuit is the only court to have addressed

the argument that the effective date of IRCA started the

seven-year clock.

11 We note that we have assumed for purposes of argument that

because Hussein's status was adjusted to lawful permanent

residency under the amnesty provisions of IRCA, he has resided in

the United States since before January 1, 1982. However, we note

that in the INS' Order to Show Cause, in which it initiated

deportation proceedings against Hussein, the INS alleged that

Hussein entered the United States as a nonimmigrant visitor on a

six-month temporary stay visa on August 19, 1987, almost a year

after IRCA's effective date. Hussein admitted this allegation

during his deportation proceeding. If it is true that Hussein

has resided in the United States continually only since August

9 was not deportable and was entitled to an authorization to work.

8 U.S.C. § 1255a(e)(1). Hussein argues that because of this

l imitation on his deportability, he resided in the United States

"under color of law" and with the "incidents of lawful domicile"

beginning on the effective date of IRCA. However, we agree with

the Seventh Circuit, which rejected an identical claim in

Castellon-Contreras, that IRCA's limitation on an illegal alien's

deportability did not change the alien's previously illegal status

into a lawful status. C astellon-Contreras, 45 F.3d at 154.

"Rather, in order to gain LPR status under IRCA, [the alien] had to

establish that from before sometime before January 1, 1982, he "has

resided continuously in the Unit ed States in an u nlawful status

since such date and through the date the application is filed under

this subsection.' " I d. (quoting 8 U.S.C. § 1255a(a)(2)(A)). 1 0

Because under IRCA itself, an alien retains his illegal status at

least until he files an application for amnesty under § 1255a(a),

we reject Hussein's argument that he became lawfully domiciled in

the United States on the effective date of IRCA. 1 1 Therefore,19, 1987, he would have failed to establish seven years of

domicile, let alone lawful domicile, in the United States.

However, because the entry date alleged in the Order to Show

Cause is inconsistent with his status adjustment under IRCA,

because the INS does not argue this issue, and because Hussein's

§ 212(c) claim fails even assuming he has resided in the United

States since before 1982, we assume the more favorable facts as

he describes them on appeal.

10 because Hussein remained an illegal resident alien until he filed

his application, which was necessarily less than seven years before

his deportation became fina l, he cannot satisfy the seven-year

lawful domicile requirement. See Madrid-Tavarez, 999 F.2d at 113

(holding that alien could not count time spent in United States

illegally without an immigrant visa toward seven year lawful

domicile requirem ent); P richard-Ciriza, 978 F.2d at 223 ("Since

[petitioner] could not have been lawfully domiciled in the United

States when he was in the United States illegally, the time he

spent here as an illegal alien, even if it immediately preceded

time spent as a lawful resident alien, could not count toward the

seven-year requirement.").

In s um, Hussein cannot demonstrate that he has maintained a

lawful domicile continuously for seven years because the earliest

date on which his status could have been adjusted to a legal status

was May 5, 1987, less than seven years before the BIA's final order

o f deportation. Because Hussein cannot satisfy the seven-year

do micile requirement, we hold that the BIA correctly determined

that Hussein was ineligible to apply for a section 212(c) waiver of

deportation. Consequently, we do not decide whether the BIA has

properly limited "lawful unrelinquished domicile" to lawful11

permanent residence, and we leave for another day the question of

whether an alien may became lawfully domiciled when his status is

adjusted to lawful temporary resident under IRCA.

III

For the foregoing reasons, Hus sein's petition for review of

the BIA's final order of deportation is DENIED.