Practice Advisory - St. Cyr and Accrual of Lawful Unrelinquished Domicile

 by

J. Traci Hong, Staff Attorney, American Immigration Law Foundation

 October 25, 2001

 

This practice advisory is another in the series of practice advisories following up on the Supreme Court's decision in INS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001).  The information in this advisory is accurate and authoritative, but does not substitute for individual legal advice supplied by a lawyer familiar with a client's case.

 

Since the Supreme Court issued its decision in St. Cyr, the Immigration and Naturalization Service (INS) has been arguing that lawful permanent residents (LPRs) who had not accrued at least seven years of lawful unrelinquished domicile at the time that they entered into plea agreements are not eligible to apply for 212(c) relief under St. Cyr.  However, this is a clearly erroneous argument which does not comport with the law governing accrual of lawful unrelinquished domicile for 212(c) or the Supreme Court's retroactivity analysis in St. Cyr.  While several unpublished Board of Immigration Appeals (BIA) decisions have rejected the INS's argument that an LPR must have accrued the requisite seven years of lawful unrelinquished domicile at the time of the plea in order to be eligible to apply for 212(c) relief under St. Cyr[1], the Board has yet to issue a precedent decision on accrual of lawful unrelinquished domicile in light of St. Cyr.

 

This practice advisory discusses the law governing accrual of lawful unrelinquished domicile for 212(c) and responses to INS's arguments regarding accrual of lawful unrelinquished domicile and St. Cyr.

 

Law Governing Accrual of Lawful Unrelinquished Domicile

 

In order to be eligible for a waiver of deportation under the now-repealed 212(c) of the Immigration and Nationality Act (INA), an LPR must have had at least seven consecutive years of lawful unrelinquished domicile in the United States.  The implementing regulations require 212(c) applicants to have accrued at least seven consecutive years in LPR status and/or temporary resident status under INA 245A or 210 immediately preceding the filing of the 212(c) application.  8 CFR 212.3(f)(2).

 

The regulations allow respondents to continue accruing the requisite seven years of lawful unrelinquished domicile until the completion of the administrative deportation or removal proceedings.  8 CFR 1.1(p) states that LPR status "terminates upon entry of a final order of exclusion or deportation."  Since 8 CFR 212.3(f)(2) equates lawful unrelinquished domicile with LPR or temporary resident status, an LPR continues to accrue lawful unrelinquished domicile until his or her LPR status is terminated by the final deportation or removal order.

 

The continual accrual of lawful unrelinquished domicile until the entry of a final deportation or removal order is also reflected in 8 CFR 3.2(c)(1), which states that "a motion to reopen proceedings for consideration or further consideration of an application for relief under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates that he or she was statutorily eligible for such relief prior to the entry of the administratively final order of deportation."  (emphasis added).  In other words, respondents can apply for 212(c) relief even after the conclusion of their deportation or removal proceedings, as long as they accrued the requisite seven years of lawful unrelinquished domicile at any time before they receive their final order of deportation or removal.  The BIA considers a deportation or removal order to be final when "the Board renders its decision in the case upon appeal or certification or, where no appeal to the Board is taken, when appeal is waived or the time allotted for appeal has expired."  Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981).

 

Furthermore, respondents may be able to argue that they have accrued lawful unrelinquished domicile in status other than LPR status.  Several circuit courts of appeals have held that one can accrue lawful unrelinquished domicile in status other than LPR status.  See e.g. Lok v. INS, 548 F.2d 37 (2nd Cir. 1977); Graham v. INS, 998 F.3d 194 (3rd Cir. 1993); Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995); Robles v. INS, 58 F.3d 1355 (9th Cir. 1995); Melian v. INS, 987 F2d 1521 (11th Cir. 1993).  This argument was successfully used in the 1990s to include time spent in temporary resident status under INA 245A or 210 towards lawful unrelinquished domicile for 212(c).  Robles v. INS, 58 F.3d 1355 (9th Cir. 1995); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995).  After losing this issue in several circuits, the government changed the regulations to reflect that time spent as temporary residents under INA 245A or 210 should count towards the accrual of lawful unrelinquished domicile for 212(c) eligibility.  61 Fed. Reg. 59824 (November 25, 1996); 62 Fed. Reg. 43466 (August 14, 1997) (Amending 8 CFR 212.3(f)(2) to include time spent in temporary resident status under INA 245A or 210 towards lawful unrelinquished domicile for 212(c) eligibility).

 

This argument may also be used to argue that time spent in other lawful status in the United States should count towards lawful unrelinquished domicile for 212(c).  Generally, in order to establish lawful unrelinquished domicile, the person must 1) be physically present in the United States; 2) intend to reside in the United States permanently; and 3) his or her presence in the United States must comply with U.S. immigration laws.  Matter of Lok, 18 I&N Dec. 101, 108 (BIA 1981).  Therefore, time spent as a parolee, asylee or refugee, or in nonimmigrant status such as E, H, K or L which are not irreconcilable with a immigrant intent may count toward time in lawful unrelinquished domicile.  However, time spent in nonimmigrant categories such as visitor or student status which require the maintenance of a domicile abroad will not count toward lawful unrelinquished domicile, because people in these status cannot lawfully form an intent to reside in the United States permanently.  See Melian v. INS, 987 F2d 1521 (11th Cir. 1993); Anwo v. INS, 607 F.2d 435 (D.C. Cir. 1975).

 

In addition, individuals may also be able to continue accruing time spent in lawful unrelinquished domicile during the pendency of a petition for review of grounds for deportability, at least in the Ninth Circuit.  Wall v. INS, 722 F.2d 1442, 1444 (9th Cir. 1984).  However, INS may attempt to limit Wall, as the decision was at least in part predicated on the now-repealed automatic stay of deportation under former INA 106(a)(3).  Nonetheless, Wall can be used to argue that respondents continue to accrue time spent in lawful unrelinquished domicile where the federal court grants a stay of deportation or removal.

 

Finally, individuals who resided with LPR parents as children and later became LPRs themselves can include their LPR parents' time in lawful unrelinquished domicile (up to when they reached the age of majority) towards their seven years of lawful unrelinquished domicile, because children's domicile follow their parent's.  Rosario v. INS, 962 F.2d 220 (2nd Cir. 1992); Lepe-Guiltron v. INS, 16 F.3d 1021 (9th Cir. 1994).

 

Because what constitutes lawful unrelinquished domicile varies from circuit to circuit in situations where an individual does not have at least seven years in LPR or temporary resident status, you should check the circuit case law to determine whether he or she has accrued the requisite seven years of lawful unrelinquished domicile in such cases.

 

St. Cyr and Lawful Unrelinquished Domicile

 

Despite the relatively clear state of the law on accrual of lawful unrelinquished domicile discussed above, some INS District Counsels have been arguing that LPRs who did not have at least seven years of lawful unrelinquished domicile at the time that they entered into plea agreements are not eligible to apply for 212(c) relief under St. Cyr.  However, such an interpretation of St. Cyr does not comport with the law governing accrual of lawful unrelinquished domicile or with the Supreme Court's retroactivity analysis in St. Cyr.

 

St. Cyr held that "212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect."  (emphasis added).  St. Cyr, 121 S. Ct. at 2293.  By arguing that LPRs who did not have at least seven years of lawful unrelinquished domicile at the time of their plea are not eligible to apply for 212(c) relief under St. Cyr, INS misinterprets the holding of St. Cyr by focusing on the phrase "eligible for 212(c) relief at the time of their plea" and by ignoring the rest of the sentence - "under the law then in effect."

 

The law then in effect, and the law now, includes the law governing accrual of lawful unrelinquished domicile discussed above.  Under the law governing accrual of lawful domicile, LPRs who entered into plea agreements prior to April 24, 1996 continued to accrue lawful unrelinquished domicile until the completion of their deportation or removal proceedings (and possibly through the judicial review process, if it took place in the Ninth Circuit).

 

The conclusion that LPRs continue to accrue lawful unrelinquished domicile until they receive a final order of deportation or removal is also supported by 8 CFR 1.1(p).  This regulation states that LPR status only "terminates upon entry of a final order of exclusion or deportation."  As the BIA has observed, "it is illogical to conclude that the domicile of one who retains his lawful permanent resident status could be anything but lawful."  Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981).  Therefore, LPRs who enter into plea agreements before they have accrued more than seven years in lawful unrelinquished domicile clearly continue to accrue lawful unrelinquished domicile until the completion of their deportation or removal proceedings, when their LPR status is terminated.

 

The continued accrual of lawful unrelinquished domicile also comports with the Supreme Court's retroactivity analysis in St. Cyr.  In examining the retroactive effect of the limitation and subsequent elimination of INA 212(c) by Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), the Court focused on the fact that LPRs such as Mr. St. Cyr relied upon "settled practice, the advice of counsel, and perhaps even assurances in open court that then entry of the plea would not foreclose 212(c) relief."

 

The regulations as it existed then and now allowed LPRs to continue accruing lawful unrelinquished domicile until the completion of administrative deportation or removal proceedings.  Furthermore, it was settled practice that LPRs were often not placed in deportation or removal proceedings until years after the completion of their criminal sentences.  Also, deportation or removal proceedings through the Immigration Court and the BIA sometimes take years to conclude.  Finally, as long as they accrued the requisite seven years of lawful unrelinquished domicile before they received a final order of deportation or removal, regulations allowed them to move to reopen or remand their deportation or removal case in order to apply for 212(c) relief.  8 CFR 3.2(c)(1).

 

LPRs considering a plea offer before April 24, 1996 would have been advised of this state of the law and settled practice by their attorneys and perhaps even by the court.  Therefore, these LPRs had reasonable expectations that they would continue to accrue the requisite seven years of lawful unrelinquished domicile and become eligible to apply for 212(c) relief, even if they did not have seven years of lawful unrelinquished domicile at the time of their plea.  As the Court correctly observed in St. Cyr, "[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation."

 

The BIA has not issued a precedent decision on accrual of lawful unrelinquished domicile in light of St. Cyr.  However, several unpublished decisions from the Board based on the Second Circuit St. Cyr decision as well as the subsequent Supreme Court decision have rejected the INS's argument that an LPR must have accrued the requisite seven years of lawful unrelinquished domicile at the time of the plea in order to be eligible to apply for 212(c) relief under St. Cyr.  See e.g. In re Asircatham, A40 104 383 (BIA June 15, 2001); In re Montas, A43 846 854 (BIA July 19, 2001); In re Vasquez, A91 674 569 (BIA August 9, 2001).