Francisco Valencia-enriquez, Petitioner, v. Immigration and Naturalization Service, Respondent, 87 F.3d 1325 (9th Cir. 1996)

Before: REINHARDT and HALL, Circuit Judges, and MERHIGE, District Judge.^** 

MEMORANDUM^*** 

Francisco Valencia-Enriquez petitions us to review a decision of the Board of Immigration Appeals (BIA) summarily affirming the Immigration Judge's conclusion that Valencia-Enriquez was ineligible for relief from deportation under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). Because we find Valencia-Enriquez eligible for this relief, we grant his petition, reverse the BIA's decision, and remand so that the IJ may exercise his discretion whether to grant relief under § 212(c).

Valencia-Enriquez last entered the United States in 1979. He applied for amnesty under § 245A of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a, and was granted temporary resident alien status on June 6, 1987. On October 18, 1989, his status was adjusted and he became a lawful permanent resident. On November 17, 1993, Valencia-Enriquez was convicted of conspiracy to possess with intent to distribute 100 to 400 kilograms of marijuana under 21 U.S.C. §§ 841(a) (1), 846. He was sentenced to 63 months imprisonment, to be followed by 60 months of supervised release. On July 5, 1994, the Service issued an Order to Show Cause seeking to deport him as an aggravated felon under 8 U.S.C. § 1251(a) (2) (A) (iii). At his November 9, 1994 hearing before the IJ, Valencia-Enriquez conceded deportability but requested discretionary relief under Section 212(c) of the INA, 8 U.S.C. § 1182. The IJ found him ineligible for § 212(c) relief because Valencia-Enriquez had been a lawful permanent resident for only five years at the time of his hearing, two years short of the seven years of lawful permanent residence required by Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979); the IJ ordered his deportation. The BIA summarily dismissed his appeal. This timely petition followed.¹ 

An alien facing deportation may request discretionary relief from deportation under § 212(c) of the INA. To be eligible for such relief, the alien must show: (1) that he is "lawfully admitted for permanent residen [ce]"; and (2) that he has "a lawful unrelinquished domicile of seven consecutive years." 8 U.S.C. § 1182(c).²  Valencia-Enriquez satisfies the first requirement, as he was admitted as a lawful permanent resident on October 18, 1989. He also meets the second. In Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir. 1995), we held that "a lawful permanent resident who gained such status under IRCA § 245A by first becoming a 'temporary' resident established 'lawful domicile' for purposes of § 212(c) as of the date of his or her application for amnesty (if a prima facie application was presented at that time)." Under de Robles, Valencia-Enriquez may trace his "lawful unrelinquished domicile" back to June 6, 1987--the date he was granted temporary resident alien status; because that was more than seven years before the November 9, 1994 hearing, Valencia-Enriquez can establish "lawful unrelinquished domicile of seven consecutive years." Valencia-Enriquez is therefore eligible for § 212(c) relief.

In the hope that we might nevertheless reach a contrary result, the Service urges us to reconsider de Robles on the grounds that: (1) it did not, as is required by Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), properly defer to the BIA's prior interpretation of the "lawful unrelinquished domicile" requirement;³  (2) it contradicts Congressional policy and will yield absurd results;⁴  (3) it did not consider 8 C.F.R. § 212.3(f) (2), which expressed the Attorney General's intent that seven years of lawful permanent residence be required even of amnesty applicants;⁵  and (4) it overruled without authority a prior Ninth Circuit case, Castillo-Felix, 601 F.2d 459, which had held that § 212(c) required all aliens to accrue seven years after becoming a lawful permanent resident.

It is well settled that " [t]his panel is 'bound by [the] decision [ ] of [a] prior panel [ ] unless an en banc decision, Supreme Court decision, or subsequent legislation undermines [that] decision [ ].' " Visness v. Contra Costa County, 57 F.3d 775, 778 (9th Cir. 1995), cert. denied, 116 S. Ct. 828 (1996) (citing United States v. State of Washington, 872 F.2d 874, 880 (9th Cir. 1989) (internal quotations omitted)); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1285 (9th Cir.), cert. denied sub nom. Hoffi v. City of Seattle, 506 U.S. 953 (1992) (" [I]t is well-established that we may reconsider earlier Ninth Circuit precedent only by en banc review or after an intervening Supreme Court decision.") (citation omitted). Because no en banc decision, Supreme Court decision, or subsequent legislation has been handed down since de Robles, we are obligated to follow it.⁶ 

For this reasons, we GRANT Valencia-Enriquez's petition, REVERSE the decision of the BIA, and REMAND to the IJ for him to exercise his discretion to grant or deny relief under § 212(c).