Unpublished Disposition, 902 F.2d 39 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 39 (9th Cir. 1989)


No. 89-70197.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1990.Decided May 11, 1990.

Before KOELSCH, ALARCON and RYMER, Circuit Judges.


Rene Frias-Sanchez (Frias) appeals from a final deportation order entered by the U.S. Department of Immigration and Naturalization (INS) after his state court conviction on felony drug charges. Specifically, Frias argues that denial of his application for relief from deportation under 8 U.S.C. § 1182(c) was improper. Frias maintains that the two years he spent in the United States pursuant to the Stateside Criteria Program while awaiting permanent resident status should be credited toward the seven years of "lawful unrelinquished domicile" required for relief under section 1182(c). We have jurisdiction to hear this appeal under 8 U.S.C. § 1105a and we affirm.

Frias, a native and citizen of Mexico, initially entered the United States in 1977. He met his future wife, an American citizen, in 1978 and married her in May 1979. On August 21, 1980, Mrs. Frias filed a Petition for Immediate Relative. The petition was granted on October 6, 1980 and processed through the Stateside Criteria Program. Under the Stateside Criteria Program, which was discontinued in 1987, persons entitled to immigrant status on the basis of a close relationship to a United States citizen were allowed to remain in the United States while their visa applications were processed at consulate posts in Canada or Mexico.1  52 Fed.Reg. 19443 (May 22, 1987). Frias was granted permanent resident status through the United States Consulate in Vancouver, Canada, and formally entered the United States as a permanent resident on August 12, 1982.

After Frias was convicted of a felony drug offense in 1988, the INS issued an Order to Show Cause, charging Frias with deportability under section 241(a) (11) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1251(a) (11), for his conviction. Frias applied for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c), asserting that the time he had spent in this country as a lawful permanent resident, together with the time he had been involved with the Stateside Criteria Program, added up to at least the seven years of lawful domicile necessary for section 1182(c) relief. On December 5, 1988, an immigration judge found that Frias was not eligible for section 1182(c) relief, based on the fact he had only a little more than six years of domicile as a permanent resident in this country at the time of the hearing. The Board of Immigration Appeals (BIA) affirmed on April 13, 1989.

Issues regarding statutory interpretation are questions of law that we review de novo. Rodriguez-Rivera v. United States Dep't of Immigration & Naturalization, 848 F.2d 998, 1001 (9th Cir. 1988) (per curiam). " 'The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.' " INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9 (1984)). In the process of filling any gap left by Congress, "the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program." Id. at 448.

The INS has consistently applied section 1182(c) only to aliens domiciled in this country for seven or more years after their admission for permanent residence. Matter of Anwo, Interim Decision No. 2604 (BIA 1977), aff'd sub nom. Anwo v. INS, 607 F.2d 435 (D.C. Cir. 1979); Matter of S, 5 I & N Dec. 116 (BIA 1953). The INS maintains that "lawful unrelinquished domicile" does not begin until an alien is "lawfully admitted for permanent residence."2  Although the Second Circuit has held that lawful unrelinquished domicile may begin before admission for permanent residence, Lok v. INS, 548 F.2d 37, 40-41 (2d Cir. 1977), the INS has applied its rule consistently in cases arising outside the Second Circuit. Brown v. INS, 856 F.2d 728, 730 & n. 4 (5th Cir. 1988); Castillo-Felix, 601 F.2d at 467.

In Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979), we affirmed the INS' rule of eligibility for section 1182(c) relief. We held that, "to be eligible for Sec. 1182(c) relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence." Id. at 467 (emphasis added); see also Avila-Murrieta v. INS, 762 F.2d 733, 734 (9th Cir. 1985) ("The seven-year period runs from the date when the alien is admitted for permanent residence." (citing Castillo-Felix)); Wall v. INS, 722 F.2d 1442, 1444 (9th Cir. 1984) (same); Chiravachardhikul v. INS, 645 F.2d 248, 250 (4th Cir.) (agreeing with the Ninth Circuit in affirming the INS' construction of Section 1182(c)), cert. denied, 454 U.S. 893 (1981). We are bound by the law of the circuit absent en banc review or an intervening Supreme Court decision. Landreth v. Commissioner, 859 F.2d 643, 648 (9th Cir. 1988).

Frias argues that Castillo-Felix is inconsistent with the Supreme Court's opinion in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). He contends that Cardoza-Fonseca mandates a statutory analysis more searching than that undertaken in Castillo-Felix. We disagree.

In Cardoza-Fonseca, the Supreme Court reaffirmed previous decisions by holding that, whenever an INS interpretation is contrary to the plain language of the statute, courts need not defer to the agency. Id. at 446-48. Yet, because the Court undertook a complex analysis of the history and purposes of the statute at issue, id. at 432-43, its decision rested as much upon its own statutory analysis as upon its characterization of the statutory language as "clear." The case has thus been read to limit deference to agency interpretations even when those interpretations are not clearly contrary to congressional intent. See, e.g., The Supreme Court, 1986 Term--Leading Cases, 101 Harv. L. Rev. 119, 349 (1987) (Cardoza-Fonseca indicates that "administrative interpretations of statutes play, at most, an advisory role for the courts in setting forth legal standards.").

Even under this expansive reading, the Castillo-Felix opinion is entirely consistent with the Cardoza-Fonseca standards. The panel in Castillo-Felix first found section 1182(c) ambiguous. 601 F.2d at 464. Then, however, the panel did not blindly defer to the INS interpretation, but rather undertook the same type of statutory analysis employed by the Court in Cardoza-Fonseca. Compare 601 F.2d at 463-67 with 480 U.S. at 432-43.

Because the panel in Castillo-Felix found section 1182(c) ambiguous and undertook its own statutory analysis, its decision is consistent with the requirements of Cardoza-Fonseca. The time Frias spent in this country under the Stateside Criteria Program is not included in measuring his "lawful unrelinquished domicile."



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


The regulations governing the program provided in part:

(2) Authorization. Voluntary departure may be granted to any alien who is statutorily eligible: ... (vi) who is admissible to the United States as an immigrant and: (A) who is an immediate relative of a U.S. citizen

* * *

(3) Periods of time. ... Classes (vi) (A), (B), and (C) may be granted voluntary departure until the American consul is ready to issue an immigrant visa....


C.F.R. Sec. 242.5 (repealed 1987)


This circuit has not determined whether an alien's lawful domicile terminates when the INS commences deportation proceedings or when the deportation order is administratively final. Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985). As in Avila-Murrieta, the facts here do not require such a determination