1 Distric t Judge of the Northern District of California,

sitting by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-60170.

Raymond WHITE, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Feb. 16, 1996.

Petition for Review of Order of the Board of Immigration Appeals.

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and SCHWARZER 1

, District Judge.

DUHÉ, Circuit Judge:

Petitioner Raymond White seeks review of the Board of

Immigration Appeals' ("BIA") decision denying his application for

discretionary relief from deportation under § 212(c) o f the

Immigration and Nationality Act ("INA"). The BIA determined that

White was ineligible for § 212(c) relief because he did not

maintain seve n years of lawful unrelinquished domicile in this

country. Because we hold that the Immigration and Naturalization

Service's ("INS") interpretation of "domicile" is inconsistent with

the statute's plain meaning, we reverse the decision of the BIA and

remand for a determination of White's eligibility for a § 212(c)

waiver.

BACKGROUND

Raymond White, a Jamaican citizen, entered the U.S. in 1978 as

a nonimmigrant agricultural worker. In September 1987, White was2 Although Section 212(c) by it s terms applies to returning

residents only, courts and the BIA have interpreted the provision

to apply to residents who have no t left the country but face

deportation. S ee, e.g., Mantell v. U.S. Dep't of Justice, INS, 798

F.2d 124, 125 n. 2 (5th Cir.1986); M atter of Silva, 16 I & N Dec.

26, 30 (BIA 1976).

2 granted lawful temporary resident status under the Special

Agricultural Workers ("SAW") program of the Immigration Reform and

C ontrol Act of 1986 ("IRCA"). S ee 8 U.S.C. § 1160. Pursuant to

this IRCA program, White obtained lawful permanent resident status

in December 1990.

In May 1990, before becoming a permanent resident, White was

convicted of distributing and con spiring to distribute crack

cocaine. As a result, the INS initiated deportation proceedings

against White in March of 1994. White sought a waiver of

deportation under § 212(c) of the INA. That provision states in

part:

Aliens lawfully admitted for permanent residence who

temporarily proceeded abroad voluntarily and not under an

ord er of deportation, and who are returning to a lawful

unr elinquished domicile of seven consecutive years, may be

admitted in the discretion of the Attorney General....

8 U.S.C. § 1182(c). 2 White claimed that he met the requirements of

§ 212(c) because he became a temporary resident (and domiciliary)

pursuant to IRCA in September 1987; he intended to remain

permanently in the United States since that time; he confirmed

that intent by becoming a permanent resident in December 1990; and

he maintained the same domicile for at least seven years.

The Immigration Judge ("IJ") held that White could not receive

this discretionary relief because he had not accumulated the3

required seven years of lawful domicile. The IJ relied on an INS

regulation providing that an "Immigration Judge shall deny an

a pplication ... under section 212(c) of the Act if ... the alien

has not maintained lawful permanent status in the United States for

at least seven consecutive years immediately preceding the filing

of the application." 8 C.F.R. § 212.3(f)(2) (promulgated in 1991

as interim final rule). Because White did not become a permanent

resident until 1990, the IJ found t hat he did not meet this

seven-year requirement.

The BIA affirmed this decision, concluding that it was bound

by 8 C.F.R. § 212.3(f)(2) and its own precedent.

DISCUSSION

White argues that the IJ and BIA erred in computing his years

of "unrelinquished domicile" by reference only to his years of

"permanent residence." The INS, on the other hand, argues that we

should de fer to its regulation implementing § 212(c), which

provides that lawful domicile does not begin until an alien becomes

a lawful permanent resident. 8 C.F.R. § 212.3(f)(2).

Because the B IA urges that it is bound by this regulation,

the precise issue is whether the INS's interpretation of § 212(c)

passes muster under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104

S.Ct. 2778, 81 L.Ed.2d 694 (1984) . An agency is entitled to

Chevron defer ence in construing statutory language only when

congressional intent is unclear. "If the intent of Congress is

clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent4

of Congress." Id. at 842-43, 104 S.Ct. at 2781-82. Only "if the

statute is silent or ambiguous with respect to the specific issue

. .. [does a court ask] whether the agency's answer is based on a

permissible construction of the statute." I d. at 843, 104 S.Ct. at

2781-82. Under C hevron 's first step, the plain language of the

statute is the most reliable indicator of congressional intent. In

determining a statute's plain meanin g, we assume that "Congress

intends the w ords in its enactments to carry their ordinary,

contemp orary, common meaning." P ioneer Investment Services v.

Brunswick Associates, 507 U.S. 380, ----, 113 S.Ct. 1489, 1495, 123

L.Ed.2d 74 (1993) (internal quotation marks omitted).

Domicile has a well-developed meaning in the common law, as

the Supreme Court recently recognized: " "Domicile' is, of course,

a concept widely used in both federal and state courts for

jurisdiction and conflict-of-laws purposes, and i ts meaning is

generally uncontroverted." M ississippi Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.E d.2d 29

(1989). To establish domicile, one must show: (1) physical

presence within the United States; and (2) intent to remain in the

United States indefinitely. "For adults, domicile is established

by physical presence in a place in connection with a certain state

of mind concerning one's intent to remain there." Id.

By contrast, the INA defines "lawfully admitted for permanent

residence" as "the status of having been lawfully accorded the

privilege of residing permanently in the United States as an

immigrant in accordance with the immigration laws, such status not3 SAW provides: "The Attorney General shall adjust the status

of any alien provided lawful temporary resi dent status under

paragraph (1) to that of an alien lawfully admitted for permanent

residence" after either one or two years of temporary residency

(depending on the length of the alien's prior agricultural labor).

8 U.S.C. § 1160(a)(2).

5 having changed." 8 U.S.C. § 1101(a)(20). Being accorded this

status does not by itself establish a domicile, nor is it a

prerequ isite for becoming a lawful domiciliary. C astellonContreras v. INS, 45 F.3d 149, 153-54 (7th Cir.1995).

Consequently, for a domicile to be lawful, an alien need not obtain

lawful permanent residency but must "have the ability under the

immigration laws, to form the intent to remain in the United States

indefinitely." I d. at 153. A person may form the requisite intent

when she becomes a "lawful temporary resident" under IRCA because

the statute provides for her eventual adjustment to permanent

resident status. 3 Therefore, it is entirely consistent with IRCA

for an alien to maintain a "lawful unrelinquished domicile" without

first having been "lawfully admitted for permanent residence."

In addition to the distinction between "permanent residence"

and "domicile," a plain reading of the text reveals yet another

reason why the INS's statutory interpretation is misguided. The

textual structure of the statute does not require both seven years

of domicile and permanent residency. The statute establishes two

separate and independent conditions, neither of which attempts to

limit or qualify the other: (1) lawful admission as a permanent

resident; and (2) return to a lawful unrelinquished domicile of

seven consecutive years. The additional requirement, advanced by4 The BIA acknowledged that it is bound by de Robles in cases

arising in the Ninth Circuit. In re Carlos Cazares-Alvarez, 1996

WL 23410 (BIA January 3, 1996).

6 the INS, that permanent resi dence be a prerequisite for

establishing domicile is not in the text of the statute. By adding

eligibility requirements without textual authority, the agency is

exceeding its delegated authority.

Despite the very plain meaning of the statute, the INS argues

that "domicile" is a term of art with a specialized meaning in the

§ 212(c) context, and that Congress's enactment of IRCA was

predicated on its acquiescence in this long-s tanding INS

interpretation. However, "[n]othing indicates that Congress

intended to alter this "time-tested definition [of domicile] when

it enacted § 212(c).' " C astellon-Contreras, 45 F.3d at 153

(quoting Melian v. INS, 987 F.2d 1521, 1524 (11th Cir.1993)).

The INS also contends that the Fourth and Ninth Circuits have

deferred to its construction of § 212(c). See Chiravacharadhikul

v. INS, 645 F.2d 248, 250-51 (4th Cir.), c ert. denied, 454 U.S.

893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); C astillo-Felix v. INS,

601 F.2d 459, 464-67 (9th Cir.1979). B ut cf. Lok v. INS, 548 F.2d

37, 40-41 (2d Cir.1977) (rejecting BIA reading of § 212(c)). These

cases, however, were decided before IRCA's enactment, and the Ninth

Circuit recently limited Castillo-Fel ix by holding that an alien

who gains lawful permanent resident status under I RCA's amnesty

provisions establishes lawful domicile when she adjusts to

temporary resident status. S ee de Robles v. INS, 58 F.3d 135 5

,

1360-61 (9th Cir.1995). 4 In addition, the Seventh Circuit rejected7

the INS's position in an IRCA case, holding that "lawful

unrelinquished domicile" in § 212(c) cannot be equated with "lawful

p ermanent residence." C astellon-Contreras, 45 F.3d at 153; s ee

also Avelar-Cruz v. I NS, 58 F.3d 338, 340 (7th Cir.1995).

Moreover, we recently observed in Hussein v. INS, 61 F.3d 377 (5th

Cir.1995), that "no circuit has upheld the BIA's view that an alien

who attains LPR [lawful permanent resident] status through IRCA's

amnesty provisions does not bec ome lawfully domiciled until he

attains LPR status." Id. at 380.

Finding no ambiguity in § 212(c), we hold that the INS

impermissibly construed the plain meaning of the statute. Thus, we

will not equate "domicile" and "permanent residence" unless failing

to do so would defeat the statutory scheme or create an absurd

result. C astellon-Contreras, 45 F.3d at 153. Applying the common

law definition of "domicile" does not defeat Congress's statutory

scheme. In fact, it actually helps execute it. By creating the §

212(c) waiver process, Congress authorized the Attorney General to

protect aliens with close ties to this country from suffering

extreme hardship as a result of deportation. Melian, 987 F.2d at

1525 n. 6. Adopting the INS's interpretation would restrict the

Attorney General's ability to exercise this important discretion by

restricting the class of persons eligible for relief. Indeed, "the

agency's interpretation

... frustrates the legislative scheme

because it works to prevent those who have developed close ties to

the United States ... from being able to seek a waiver." Rosario

v. INS, 962 F.2d 220, 225 (2d Cir.1992). Therefore, we will not8

defer to the agency's interpretation, which is contra ry to

congressional intent, common law principles and common sense.

CONCLUSION

Accordingly, we reverse the decision of the Board of

Immigration Appeals and r emand for consideration of Mr. White's

eligibility for a § 212(c) waiver.

REVERSED and REMANDED.