Julio Garcia Rivera v. Immigration and Naturalization Service

810 F.2d 540, 1987 U.S. App. LEXIS 7654

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 23, 1987
• Docket: 85-4100
• Status: Published

Opinions

W. EUGENE DAVIS, Circuit Judge:

Upon reconsideration and for reasons that follow, we are persuaded that the Board’s interpretation of the Immigration and Naturalization Act is not unreasonable; given the “great deference” we must accord the Board of Immigration Appeals’ (BIA) interpretation of that Act, we accept its interpretation and affirm its order. See Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).

In our original opinion, we defined the narrow issue presented for decision in this case: Whether Garcia was a lawful permanent resident of this country in August 1984, when he sought section 212(c) relief. Rivera v. INS, 791 F.2d 1202, 1204 (5th Cir.1986). The answer to this question depends upon when, following the immigration judge's order that Rivera be deported, Rivera’s status changed so that he was no longer a lawful resident of the United States.

The BIA in this case relied upon In Re Lok, where it considered four possible steps in the deportation process when lawful residence might terminate: (1) when the immigration judge ordered Rivera’s deportation; (2) when the deportation order was affirmed by the BIA or otherwise became administratively final; (3) when the BIA is affirmed by the court of appeals or when the time for appeal of the BIA order expires; or (4) upon execution of the deportation order. In Re Lok, 18 I. & N. Dec. 101, 105 (BIA 1981).

The Board carefully considered all of these possible answers. Because of the statutory obligation of the BIA to make a de novo review of the immigation judge’s findings of fact and conclusions of law, it concluded that the alien’s lawful status should not terminate upon the initial deportation order. Id. at 106. The BIA found it incongruous, however, that an alien under an administratively final deportation order could continue to maintain lawful resident status. Id. The Board concluded that the alien should not be considered a lawful resident of the United States while he appealed the adverse administrative determination to the court of appeals. The Board reasoned that:

Authority to adjudicate an alien’s deport-ability is vested primarily in the Attorney General and his delegates, the immigration judge and the Board____ In contrast to the Board’s de novo review powers, the appellate court’s scope of review is limited. Assuming no error of law or unfairness in procedure, the court must affirm the administrative order of deportation if the order is supported by reasonable, substantial, and probative evidence of record.

To hold that an alien under a final administrative order of deportation remains a lawful permanent resident throughout the judicial proceedings would encourage spurious appeals to the courts, made solely for the purpose of accumulating more time toward eligibility for section 212(c) relief. The termination of lawful permanent resident status upon the entry of a final administrative order of deportation, on the other hand, would result in no ultimate prejudice to the alien. In those relatively rare instances where the court determines that the Board erred, as a matter of fact or law, with respect to its deportability finding, reversal of the Board’s order nullifies the order and restores the alien’s lawful permanent resident status.

Id. at 107 (citations omitted).

The Lok opinion, which the Board followed in the instant case, reflects careful consideration of the solution to the problem of when lawful residence in this country should terminate. We find nothing unreasonable about the BIA’s rationale or its conclusion.

Moreover, we see nothing unfair about terminating lawful resident status after an adverse decision by the initial factfinder and an affirmance by the BIA following de novo review. Acceptance of appellant’s position that he should retain lawful resident status through the judicial appeal would create more work for an already beleaguered Board. Requiring the alien to assert his claim for discretionary relief from deportation while his deportation order is on appeal to the Board permits the Board to consider both claims together; this in turn prevents the alien from stringing out his claims and delaying the ultimate disposition of his case.

Upon reconsideration we are persuaded that terminating lawful status when the deportation order becomes administratively final will not prejudice the alien. Contrary to the assertion in our initial opinion, the applicable regulations do not require an alien to admit deportability as a condition to applying for section 212(c) relief: “An application ... shall be made only during the [deportation] hearing and shall not be held to constitute a concession of alienage or deportability in any case in which the [alien] does not admit his alienage or de-portability.” 8 C.F.R. § 242.17(e) (1986).

Also, we are now convinced that no “Catch-22” is created for the alien by the rule adopted in Lok and in this case. The regulations allow the alien to apply for section 212(c) relief and fully reserve all of his arguments that he is not deportable. Litigants in both criminal and civil proceedings in this country are frequently required to join alternative claims and defenses in a single proceeding and lay jurors routinely decide such claims. No reason is suggested why an immigration judge or the BIA cannot fairly consider an alien’s alternate claim for section 212(c) relief.

In sum, the conclusion of the BIA as to when the alien’s lawful resident status terminates is a sensible one. It gives the alien ample time to assert his claim for section 212(c) relief and prevents him from litigating his various claims in a piecemeal fashion. The rule the appellant would have us adopt encourages an alien to wait until after he appeals the deportation order to the court of appeals before filing his petition for section 212(c) relief. This would require the immigration judge and the BIA to again review the alien’s case to rule on the claim for section 212(c) relief. Such a rule would allow the alien to string out his claims, unnecessarily increase the Board’s work load and delay the ultimate disposition of the case.

Upon reconsideration, we conclude that the BIA's interpretation of the Act is reasonable and affirm its order. To the extent our previous opinion is in conflict with the above, it is vacated.

AFFIRMED.