FLETCHER, Circuit Judge:
Petitioner, a deportable alien, appeals a decision of the Board of Immigration Appeals ("BIA"), finding him statutorily ineligible for the discretionary waiver of deportation provided for in 8 U.S.C. § 1182(c) ("section 212(c)"). The BIA held that the time during which petitioner lived as a minor child with his permanent resident parents in the United States, prior to himself independently attaining permanent residency, did not count toward the seven years of "lawful unrelinquished domicile" required to make him eligible for discretionary relief under section 212(c).
We have jurisdiction to review orders of deportation pursuant to 8 U.S.C. § 1105a(a). This case requires us to decide whether, under section 212(c), a parent's lawful unrelinquished domicile is imputed to his or her minor children. We hold that it is.
Benjamin Lepe-Guitron is a native and citizen of Mexico. He states that his parents immigrated to the United States on September 16, 1976, and successfully applied to immigrate Lepe-Guitron, his sister, and one of his brothers. He further states that his parents and sister attained permanent resident status within two years thereafter, but that due to a processing error attributable to the Immigration and Naturalization Service ("INS") he did not attain that status until
On September 1, 1989, Lepe-Guitron pled guilty and was convicted in California Superior Court of possession of marijuana for sale, and was sentenced to 120 days in county jail. On December 5, 1989, the INS instituted deportation proceedings pursuant to 8 U.S.C. § 1251(a)(11) (1988).
Lepe-Guitron appealed to the BIA, arguing that because he was a child at the time, his seven-year period of "lawful unrelinquished domicile" should begin on the date his parents attained permanent resident status (in 1976), rather than on the date he himself independently attained such status. On July 2, 1992, the BIA rejected this argument, holding that Lepe-Guitron's "lawful unrelinquished domicile" must be counted from the date he himself first attained permanent resident status.
Enacted in 1952 as part of a wide-ranging revision of the Immigration and Nationality Act ("INA"), section 212(c) provides:
8 U.S.C. § 1182(c). Although this section applies by its terms only to exclusion proceedings under subsection (a) of § 1182, judicial decisions have extended its reach to deportation proceedings. Butros v. INS, 990 F.2d 1142, 1143 (9th Cir.1993); Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir.1981).
We interpreted the phrase "lawful unrelinquished domicile" in Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979). There, petitioner entered the country illegally in 1963, was deported in 1969, re-entered illegally, married a permanent resident in 1970, and was granted permanent resident status in 1972. In 1975 he was convicted of knowingly inducing the illegal entry of two aliens into the United States, and the INS began deportation proceedings against him. He conceded deportability, but asked for section 212(c) relief. The IJ and the BIA both found that he was ineligible for relief because his period of lawful domicile did not begin until 1972, when he attained permanent resident status. He appealed to this court, arguing that the
601 F.2d at 463 (emphasis added).
The Castillo-Felix court rejected petitioner's argument, holding,
Id. at 467 (emphasis added).
The court's opinion was an exercise in deference to the INS's interpretation of its own statute, the INA. The court first noted that section 212(c) was ambiguous as to whether an alien could establish "lawful domicile" without having "permanent resident" status, and that the legislative history was not helpful in clarifying the matter. Id. at 464-65.
Lepe-Guitron admits he was not granted permanent residence in his own name until 1986 (only three years before his deportation hearing), but claims that his parents' permanent residence prior to that date should be imputed to him, as he was a minor at the time. The BIA rejected this claim, instead interpreting section 212(c) to require children to themselves accrue seven years of permanent residence after being formally accorded that status. We review the BIA's interpretation of section 212(c) de novo. Abedini v. INS, 971 F.2d 188, 190 (9th Cir. 1992); see also Wong v. Ilchert, 998 F.2d 661, 663 n. 3 (9th Cir.1993); Butros, 990 F.2d at 1144.
Castillo-Felix presented facts substantially different from Lepe-Guitron's situation. Castillo-Felix entered the country illegally, married, and only subsequent to his marriage did he acquire permanent resident status. Castillo-Felix, 601 F.2d at 461. Here, on the other hand, Lepe-Guitron, a child, legally entered the United States with his parents, was always legally within the country, was domiciled here, but acquired permanent resident status, still as a minor, many years after his parents achieved it.
The BIA was mistaken in automatically applying the rule in Castillo-Felix— that lawful domicile accrues from the date an alien him- or herself acquires permanent residency—to Lepe-Guitron without considering the crucial differences between the two cases. There are a number of persuasive reasons to hold that a child's "lawful unrelinquished domicile" under section 212(c) is that of his or her parents.
The position espoused by the government would subvert the fundamental policies animating section 212(c). What could be more frustrating to the section's "just and humane" goal of providing relief to those for whom deportation "would result in peculiar or unusual hardship," S.Rep. No. 355, 63d Cong., 2d Sess. 6 (1914),
This conclusion is strengthened by a closer examination of Congress' chosen statutory term, "domicile."
Under this definition we are impelled to the conclusion—unremarkable at common law—that a child's domicile follows that of his or her parents. See Restatement (Second) Conflict of Laws § 14(2) (1969); 25 Am.Jur. 2d, Domicil § 69 (1966). This is because children are, legally speaking, incapable of forming the necessary intent to remain indefinitely in a particular place. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989) ("Since most minors are incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents"). The force of this rule is highlighted by the corollary that "`[o]n occasion, a child's domicil of origin will be in a place where the child has never been.'" Id. (quoting Restatement (Second) Conflict of Laws § 14, Comment b).
Thus, while we have held it reasonable for the INS to interpret an adult's "lawful unrelinquished domicile" to begin on the day he or she acquires permanent residence, Castillo-Felix, 601 F.2d at 467, both the common law definition of domicile and the policies of section 212(c) preclude this interpretation when applied to children.
Other sections of the INA giving a high priority to the relation between permanent resident parents and their children lend strength to our analysis. Sections 1152 and 1153, which allocate the annual quota of immigrant visas, provide a preference for the alien children of United States residents and citizens. 8 U.S.C. §§ 1152(a)(4), 1153(a)(1) & (2). In considering applications for permanent resident status, a child residing outside the United States is given the same priority date and preference category as that of his or her parents. 8 C.F.R. 245.1(d)(vi)(B)(1). The Act even provides a waiver of excludability for certain immigrants who have helped their alien children enter the United States illegally. 8 U.S.C. § 1182(a)(6)(E)(ii) (family reunification waiver). Conversely, the BIA has held that when a parent abandons his or her permanent resident status, minor children of the parent also lose permanent resident status. Matter of Zamora, 17 I & N Dec. 395 (BIA 1980).
Finally, we find support for our analysis in the one Court of Appeals case to have considered the issue before us now: Rosario v. INS, 962 F.2d 220 (2d Cir.1992).
The Second Circuit agreed. The court first embarked on an extended discussion of the common law definition of domicile, Rosario, 962 F.2d at 223-24 (citing Holyfield); see also Melian, 987 F.2d at 1524 (similar discussion of domicile; also citing Holyfield), and held, as do we, that
Rosario, 962 F.2d at 224 (citing Holyfield). On this basis, the court concluded that Rosario might have been domiciled in the United States during the ten months when his mother was allegedly domiciled here but he still lived in the Dominican Republic. The issue of law having been resolved in Rosario's favor, a factual question remained as to whether his mother was, as claimed, domiciled in the United States as of February, 1983.
The BIA's interpretation of section 212(c), which would require children to themselves obtain permanent resident status before their lawful domicile could accrue, ignores the common law and common sense definitions of "domicile," and subverts section 212(c)'s core policy. We therefore hold that parents' "lawful unrelinquished domicile" should be imputed to their minor children under section 212(c).
In Lepe-Guitron's case, as in Rosario's, the record does not show whether his parents have accrued seven years of lawful unrelinquished domicile. We remand for such determination with instructions that if his parents are found to have the requisite lawful unrelinquished domicile, he should be considered eligible for section 212(c) relief.
Lepe-Guitron's petition is GRANTED, and the matter is REMANDED with instructions.
However felicitous the majority's result appears to be in the case of children, we have previously ratified the BIA's long-standing policy that "to be eligible for [§ 212(c)] relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence." Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979). It is undisputed that, at the time of the hearing before the IJ, Lepe-Guitron had accumulated less than four years of "lawful unrelinquished domicile after [his] admission for permanent residence." Id. This should end the matter and we should deny the petition for review.
Instead, the majority accepts the reasoning of Rosario v. INS, 962 F.2d 220 (2d Cir.1992), which took the view that "lawfully admitted for permanent residence" and "lawful unrelinquished domicile of seven consecutive years," as used in § 212(c), "are separate and independent conditions, neither [of which] purports to limit or qualify the other." Id. at 223. On this reading of the statute, the Second Circuit has long held "that Congress planned for a permanent resident alien to be eligible for § 212(c) relief, provided that person can meet the domicile condition." Id. (emphasis added) (citing Lok v. INS, 548 F.2d 37, 41 (2d Cir.1977)).
In Castillo-Felix, however, we parted company with the Second Circuit's statutory interpretation, expressly rejecting Lok's conclusion that Congress did not intend the seven years of lawful domicile to follow admission for permanent residence. 601 F.2d at 467.
The BIA's consistent reading of § 212(c) has tied the word "lawful," as Congress used it to qualify "domicile," to the requirement that the alien be "lawfully admitted for permanent residence." Castillo-Felix approves the BIA's interpretation, and there is no reason to undo that rule in this case. I therefore dissent.
We note that Lepe-Guitron has put into the record 12 declarations from employers, friends, and a school principal. Also in the record is his diploma from a California middle school, dated June 14, 1985.