that arguably repealed its habeas corpus jurisdiction by implication.
The federal courts have had the power to grant writs of habeas corpus since enactment of the Judiciary Act of 1789.
Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82 (the "1789 Act"). See Felker, 116 S. Ct. at 2338. In 1867, Congress expanded the Supreme Court's statutory appellate jurisdiction while also expanding the power of the federal courts to issue writs of habeas corpus, permitting the issuance of such writs "in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Act of Feb. 5, 1867, ch. 28, 14 Stat. 385 (the "1867 Act").
In 1868, Congress revoked the appellate jurisdiction it had given with the 1867 Act. Act of Mar. 27, 1868, ch. 34, § 2, 15 Stat. 44 (the "1868 Act"). In Yerger, the Court considered whether the 1868 Act also deprived the Court of the power to hear an appeal from a lower court's decision on a habeas petition or to entertain a habeas petition under the 1789 Act. The Court held that it did not because the 1868 Act made no reference to habeas jurisdiction under the 1789 and 1867 Acts. The Court rejected the argument that the 1868 Act had repealed its habeas power by implication, and ruled that "repeals by implication are not favored." 75 U.S. at 105; see Felker, 116 S. Ct. at 2338.
More recently, in Felker, the Supreme Court re-visited the issue of repeals by implication of its habeas power, specifically in the context of the AEDPA and section 2241. The Court held that Title I of the AEDPA did not repeal the Court's authority to entertain original habeas petitions filed pursuant to section 2241. 116 S. Ct. at 2337-38. Title I was intended to limit Supreme Court review of successive habeas petitions deemed to be non-meritorious by the courts of appeals. It does not, however, make mention of section 2241, and the Court held that Title I of the AEDPA did not repeal section 2241 by implication. 116 S. Ct. at 2338-39 (citing Yerger).
Third, the language of the amendments enacted by the AEDPA is at best ambiguous. Sections 401 and 440 of the AEDPA do not state that they repeal or amend section 2241; indeed, they do not mention section 2241 at all. Cf. Felker, 116 S. Ct. at 2338 ("no provision of Title I mentions our authority to entertain original habeas petitions"). The amended section 106 of the INA is now "utterly silent on the question of habeas jurisdiction." Powell, 937 F. Supp. at 1252. Seeking to distinguish Felker, the Government argues that the plain language of the AEDPA repeals habeas jurisdiction under section 2241 not implicitly but "expressly," pointing, among other things, to the heading to section 401(e): "Elimination of Custody Review by Habeas Corpus." (Govt. Mem. at 24, 29) (citing AEDPA §§ 401(e), 440(a), 110 Stat. 1268, 1276-77 (1996)). The Government is simply incorrect. The plain language does not expressly repeal section 2241. Nor does the heading to section 401(e) carry much weight, for other headings contradict the Government's argument. Section 401 is entitled "Alien Terrorist Removal" and is part of Subtitle A, "Removal of Alien Terrorists." In contrast, section 440 is entitled "Criminal Alien Removal" and is part of Subtitle D, "Criminal Alien Procedural Improvements." 110 Stat. at 1357, 1367, 1372, 1375-76. Hence, one could reasonably argue, on the basis of the headings, that section 401 has-no application to Yesil at all, as no suggestion has been made that he was an "Alien Terrorist."
Finally, the Supreme Court has made it clear that Congress cannot eliminate habeas corpus review over final deportation orders unless there is some alternative avenue for review. In Heikkila v. Barber, 345 U.S. 229, 234, 97 L. Ed. 972, 73 S. Ct. 603 (1953), the Supreme Court noted that under the Immigration Act of 1891, 26 Stat. 1084, as well as the Immigration Act of 1917, 39 Stat. 890, Congress intended to make administrative deportation decisions "nonreviewable to the fullest extent possible under the Constitution." See also id. at 235 ("Clearer evidence that for present purposes the Immigration Act of 1917 is a statute precluding judicial review would be hard to imagine."). Yet, the Court observed, aliens had historically been able to attack deportation orders by petitions for writ of habeas corpus. Id. (See also cases cited in Pet. Mem. at 14-16; Amicus Mem. at 15-18). Since the AEDPA has now stripped the courts of appeals of the jurisdiction to hear petitions for review, section 106 of the INA, as amended, and section 2241 must be interpreted to permit habeas review of deportation orders in the district courts.
For all these reasons, I hold that section 2241 has not been repealed by the AEDPA.
2. Constitutional v. Non-Constitutional Claims
The conclusion that section 2241 has not been repealed does not end the inquiry, for the issue remains as to whether the district courts' jurisdiction to hear habeas petitions is limited to "substantial constitutional claims." In an effort to balance Congress's evident intent in enacting sections 401(e) and 440(a) of the AEDPA to limit habeas review of deportation orders against the "grave constitutional issues" that would be raised by the conclusion that habeas relief is no longer available to deportable aliens, the district courts that have addressed the issue have held that review must be limited situations where there is a threat of "a fundamental miscarriage of justice." Eltayeb v. Ingham, 950 F. Supp. 95, 1997 WL 5906, at *2, 4; accord Powell, 937 F. Supp. at 1252-53; Mbiya, 930 F. Supp. at 612. On the other hand, section 2241, by its terms, is not limited to constitutional claims; rather, it provides for habeas review where a prisoner is "in custody in violation of the Constitution or laws or treaties of the United States. " 28 U.S.C. § 2241(c)(3) (emphasis added).
I need not decide this issue, however, for in the present case there is the threat of a fundamental miscarriage of justice and Yesil has presented substantial constitutional claims.
The Government argues that no constitutional claim is implicated because an alien has no substantive due process right not to be deported (Govt. Mem. at 33) (citing Linnas v. INS, 790 F.2d 1024, 1031 (2d Cir.), cert. denied, 479 U.S. 995, 93 L. Ed. 2d 600, 107 S. Ct. 600 (1986)) and because "'no judicial review [of deportation orders] is guaranteed by the Constitution.'" (Govt. Mem. at 33) (quoting Carlson v. Landon, 342 U.S. 524, 537, 96 L. Ed. 547, 72 S. Ct. 525 (1952)). It is true that the federal government is entitled to great deference in the area of immigration. See Reno v. Flores, 507 U.S. 292, 305, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993) ("over no conceivable subject is the legislative power of Congress more complete") (citations omitted). Yet, it is equally true that aliens within this country who face expulsion are entitled to the procedural safeguards of due process. As the Supreme Court has held,
once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present alien is entitled to a fair hearing when threatened with deportation, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation.
Landon v. Plasencia, 459 U.S. 21, 32-33, 74 L. Ed. 2d 21, 103 S. Ct. 321 (1982) (citations omitted); accord Galvan v. Press, 347 U.S. 522, 531, 98 L. Ed. 911, 74 S. Ct. 737 (1954) ("In the enforcement of these policies [pertaining to the entry of aliens and their right to remain], the Executive Branch of the Government must respect the procedural safeguards of due process."); Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 97 L. Ed. 576, 73 S. Ct. 472 (1953) (resident aliens enjoy constitutional protection); Carlson v. Landon, 342 U.S. 524, 537, 96 L. Ed. 547, 72 S. Ct. 525 (1952) (Congress's power over immigration is "subject to judicial intervention under the 'paramount law of the Constitution'") (quoting Fong Yue Ting v. United States, 149 U.S. 698, 713, 37 L. Ed. 905, 13 S. Ct. 1016 (1893)).
For an alien who has chosen to make this country his home, there are few things more important than his ability to remain or more devastating than banishment by deportation. Deportation involves "issues basic to human liberty and happiness." Wong Yang Sung v. McGrath, 339 U.S. 33, 50, 94 L. Ed. 616, 70 S. Ct. 445, modified, 339 U.S. 908 (1950). Deportation of a permanent resident is "the equivalent of banishment or exile," Delgadillo v. Carmichael, 332 U.S. 388, 391, 92 L. Ed. 17, 68 S. Ct. 10 (1947), and when an alien is ordered deported, "the liberty of an individual is at stake." Bridges v. Wixon, 326 U.S. 135, 154, 89 L. Ed. 2103, 65 S. Ct. 1443 (1945). In view of the importance of these rights and the harshness of the potential consequences, any error in the interpretation of the deportation statutes is magnified.
Yesil contends that the BIA and the IJ erred in their interpretation of section 212(c). As a consequence of that alleged error, Yesil was deprived of the opportunity to be heard with respect to whether he should be granted relief from what is the equivalent of banishment or exile. Yet, the Government contends that even if the BIA and the IJ were wrong in their interpretation of the law, Yesil has no due process right to judicial review -- that he can be deprived of his "human liberty and happiness" without any judicial recourse. This contention is untenable and I reject it. If Yesil is being deprived of the right to be considered for relief from deportation because of an error of law, due process requires that the error be corrected.
3. The Appropriate Forum for Review
The Government also contends that to the extent Yesil may seek judicial relief, he may do so only by presenting a petition for review to the Second Circuit. (Govt. Mem. at 37-41). The Government writes: "Section 440(a) of the AEDPA must be read as permitting judicial review of substantial constitutional claims under section 106(a) of the INA, but then only in the courts that hear appeals from final deportation orders: the courts of appeals . . . ." (Id. at 38).
At the very least, the Government's argument is inconsistent with other positions it has taken in the case. Section 106(a)(10), as amended, now provides that final deportation orders against aliens convicted of aggravated felonies "shall not be subject to review by any court." Section 106(a)(10), as amended, has been interpreted by seven circuit courts as requiring them to dismiss petitions for review of deportation orders for lack of jurisdiction. It is difficult to understand, then, how section 106(a) could be a basis for arguing, as the Government now does, that constitutional claims must be presented to the courts of appeal by petition for review. In any event, since I have now held that section 2241 has not been repealed, I may hear this case pursuant to section 2241(a).
In sum, the Court has subject matter jurisdiction to consider Yesil's petition for habeas relief from the BIA's final order of deportation. I will reach the merits.
D. The Merits
The critical issue on the merits is whether Yesil had a "lawful unrelinquished domicile" in the United States of at least seven consecutive years. If so, Yesil was eligible to be considered for a waiver of deportation under section 212(c) of the INA. 8 U.S.C. § 1182(c). If not, as the IJ and BIA concluded in the administrative proceedings below, he could not have been considered for the discretionary relief.
Yesil advances two arguments to support his contention that he accumulated seven years of "lawful unrelinquished domicile." First, he contends that the period from the time he applied for lawful permanent status (November 17, 1987) until he was granted that status (March 25, 1988) should be included. If that period of four months and eight days is included, he would have been a lawfully unrelinquished domicile for seven years, counting from the date of his initial application until the date of the BIA's final order of deportation (March 17, 1995). Second, he argues that, even if only his time as a lawful permanent resident is included, under Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), he continued to accrue time as a lawful permanent resident even after the BIA issued its final decision. If he is correct, even if one does not begin counting his time until March 25, 1988, when his application for lawful permanent resident status was granted, he would have accrued seven years as a lawful permanent resident on March 25, 1995 -- just eight days after the BIA's final decision.
I will address both of Yesil's arguments.
1. The Period from November 17, 1987 to March 25, 1988
The BIA and the IJ essentially equated "lawful unrelinquished domicile" with "lawful permanent residence status," as they concluded that only Yesil's time as a lawful permanent resident could count toward his time as a "lawful unrelinquished domicile." While the BIA has long held that "the acquisition of lawful domicile time must be subsequent to the date of admission as a lawful permanent resident" (R. 149) (citing BIA decisions), this is an issue that has split the circuits.
At least two circuits have squarely rejected the BIA's interpretation. In Lok I, the Second Circuit held that the BIA's "equation of the terms 'lawfully admitted for permanent residence' and 'lawful unrelinquished domicile'" for purposes of section 212(c) was "untenable." 548 F.2d at 40; see also Rosario v. INS, 962 F.2d 220, 222-23 (2d Cir. 1992). In Castellon-Contreras v. INS, in the context of the Immigration Reform and Control Act of 1986 ("IRCA"), the Seventh Circuit held that given that lawful domicile has a meaning distinct from LPR, we find no reason to equate the two terms." 45 F.3d 149, 153 (7th Cir. 1995).
Although the Eleventh Circuit has not yet decided the issue, it has observed that "the INS interpretation . . . appears to be inconsistent with the language of section 212(c), the policy underlying the section, and a holding of the Supreme Court." Melian v. INS, 987 F.2d 1521, 1525 n.6 (11th Cir. 1993) (citing Elkins v. Moreno, 435 U.S. 647, 55 L. Ed. 2d 614, 98 S. Ct. 1338 (1978)). The Third, Fifth and District of Columbia Circuits have "neither rejected nor upheld the BIA's interpretation." Hussein v. INS, 61 F.3d 377, 380 (5th Cir. 1995); accord Graham v. INS, 998 F.2d 194, 195-96 (3d Cir. 1993) (same); Anwo v. INS, 197 U.S. App. D.C. 121, 607 F.2d 435, 437 (D.C. Cir. 1979) (same); see also Kolster v. INS, 101 F.3d 785, 787 (1st Cir. 1996) (noting split in circuits).
The Ninth Circuit has, in essence, ruled both ways. In an IRCA case, the Ninth Circuit recently rejected INS's contention that the period of "lawful unrelinquished domicile" for purposes of section 212(c) begins accruing only after an alien gains lawful permanent residence status. Ortega de Robles v. INS, 58 F.3d 1355, 1358-59 (9th Cir. 1995). On the other hand, in Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979), the Ninth Circuit held that "aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence." The Ortega de Robles Court distinguished Castillo-Felix by holding that it did not apply to aliens obtaining legal status under IRCA. 58 F.3d at 1358-59.
The only circuit other than the Ninth Circuit to have accepted the BIA's interpretation is the Fourth Circuit. In Chiravacharadhikul v. INS, 645 F.2d 248, 250-51 (4th Cir.) (en banc), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 389 (1981), a 2-to-1 decision that relied heavily on the Ninth Circuit's decision in Castillo-Felix, the Court deferred to the BIA's construction.
The BIA's view that only time as a lawful permanent resident can count toward the required period of "lawful unrelinquished domicile" must be rejected, for at least four reasons.
First, the plain language of section 212(c) belies the BIA's interpretation. The statute uses the words "lawful unrelinquished domicile," not the words "lawful permanent residence." As the Second Circuit observed in Lok I, if Congress had wanted to limit section 212(c) relief to individuals with seven years of lawful permanent residence, it could have done so explicitly by using that language. 548 F.2d at 41; accord Castellon-Contreras, 45 F.3d at 153. Instead, it chose other language.
Second, the terms "lawful unrelinquished domicile" and "lawful permanent residence" have different meanings. See Rosario, 962 F.2d at 224 ("The terms resident and domicile, though sometimes synonymous, have different common law meanings."). It is possible for an alien to have a lawful domicile in this country without being lawfully admitted for permanent residence." Lok I, 548 F.2d at 40; accord Elkins v. Moreno, 435 U.S. 647, 666, 55 L. Ed. 2d 614, 98 S. Ct. 1338 (1978) (some non-immigrants may establish lawful domicile without lawful permanent resident status); Castellon-Contreras, 45 F.3d at 153-54. The Second Circuit in Lok I specifically cited as an example a student who, after residing in the United States for several years, married an American citizen and obtained an appropriate visa for admission to permanent residence. 548 F.2d at 40. This is precisely Yesil's situation. He entered the United States on a student visa, resided here for a number of years, married an American citizen, and applied for and was granted an adjustment in status to lawful permanent resident. When he applied, on November 17, 1987, for status as a lawful permanent resident on the basis of his marriage, he had both elements required for "lawful domicile": (1) he was present lawfully (2) with the intent to remain. Castellon-Contreras, 45 F.3d at 153; Melian v. INS, 987 F.2d 1521, 1524 (11th Cir. 1993); Lok v. INS, 681 F.2d 107, 109-10 (2d Cir. 1982).
Third, the legislative history supports the conclusion that an alien can accrue time toward section 212(c) eligibility without being a lawful permanent resident. The Senate Report states: "The subcommittee recommends that the proviso should be limited to aliens who have the status of lawful permanent residence who are returning to a lawful domicile of 7 consecutive years after a temporary absence abroad." Sen Rep. No. 1515, 81st Cong., 2d Sess. 384 (1950) (quoted in Lok I, 548 F.2d at 40). That language certainly suggests that the two concepts are different. Moreover, in Lok I, the Second Circuit noted that Congress had considered, but apparently rejected, a proposal that would have limited the discretionary waiver in the manner suggested by INS. 548 F.2d at 41. In addition, section 212(c) should be construed to effectuate its "obvious purpose . . . to mitigate the hardship that deportation poses for those with family ties in this country." Lok I, 548 F.2d at 41. See also Castellon-Contreras, 45 F.3d at 153 ("Section 212(c) was designed to help 'aliens who are likely to have established strong ties to this country,' . . . something not requiring LPR status.") (citations omitted).
Finally, the Second Circuit has long recognized that any ambiguities in the deportation statutes should be construed in favor of the alien. Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975) ("It is settled doctrine that deportation statutes must be construed in favor of the alien."). Because "deportation is a sanction which in severity surpasses all but the most Draconian criminal penalties," Lok I, 548 F.2d at 39, and because the "interests at stake" for a permanent resident alien are "high and momentous," Rosenberg v. Fleuti, 374 U.S. 449, 458, 10 L. Ed. 2d 1000, 83 S. Ct. 1804 (1963) (quoting Di Pasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir. 1947)), any doubt as to the correct interpretation of section 212(c) should be resolved in favor of the alien. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (recognizing "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien"); INS v. Errico, 385 U.S. 214, 225, 17 L. Ed. 2d 318, 87 S. Ct. 473 (1966) ("Even if there were some doubt as to the correct construction of the statute [INA § 241(f)], the doubt should be resolved in favor of the alien."); Rosario v. INS, 962 F.2d 220, 225 (2d Cir. 1992) ("in light of the harshness of deportation, ambiguous deportation provisions should be construed in favor of the alien"). A rule of lenity is particularly appropriate when the issue is eligibility, that is, not whether Yesil will be granted the waiver, but simply whether he will be able to apply for it. Rosario, 962 F.2d at 223 ("Congress' policy, at least as regards waiver eligibility, is tolerant rather than strict, and accordingly does not envision barriers in addition to those already found in § 212(c)").
The Government argues that Yesil could not have had the lawful intent to remain in the United States permanently while he was here on a student visa. (Govt. Mem. at 44-45). Because a non-immigrant student in the United States "has no intention of abandoning" his foreign residence as a matter of law, the Government argues, Yesil was not lawfully domiciled in this country prior to receiving his legal permanent resident status. (Id.) (citing 8 U.S.C. § 1101(a)(15)(F)(i)). I disagree.
In essence, the Government is arguing that the moment Yesil applied for an adjustment of his status on November 19, 1987, his presence became unlawful. That simply was not the case. First, INS surely did not believe his status had become unlawful when he applied for a change in status. A few days later, INS granted him authorization to work and eventually, of course, the requested adjustment in status was approved. INS would not have granted either the work authorization or the adjustment in status if Yesil's presence had become unlawful. Upon receipt of the application, INS wrote him as follows:
Your application for status as a permanent resident has been retained for processing. You will be notified when further action has been taken in your case. Your request to accept employment has been adjudicated and the result is shown below [APPROVED]. This employment application is valid only for the time necessary to decide your application for permanent residence.
(R. 112). This language unambiguously shows that INS believed that Yesil's continued presence in the United States was lawful, at least until his application for permanent residence was decided.
Second, Yesil's status as a non-immigrant student effectively terminated when he applied for an adjustment in status. At that time, it became his intent to lawfully remain indefinitely in the United States. If his application had eventually been denied, he would have had to depart the United States. While his application for adjustment was pending, he was permitted by law to remain in the United States.
In United States v. Brissett, 720 F. Supp. 90, 91 (S.D. Tex. 1989), a criminal case, the defendant was an alien who had remained in the United States after his visitor's visa had expired but who had applied for permanent resident status. He was charged with possession of a weapon at a time when he was an alien illegally in the United States. The court dismissed the indictment, holding that "an alien applicant for adjustment of status to permanent resident is not 'without authorization' to remain in the United States, and thus is not 'illegally' or 'unlawfully' in the country." The court cited as authority 8 C.F.R. § 274a.12 (1988). Although that regulation does not explicitly state that an alien who applies for adjustment to lawful permanent resident status is lawfully in the United States during the pendency of the application, the regulation certainly implies it, as it provides that such an alien may obtain employment authorization "in increments not exceeding one year during the period the application is pending." 8 C.F.R. § 274a.12(c)(9) (1997). See also United States v. Hernandez, 913 F.2d 1506, 1513 (10th Cir. 1990) ("Because aliens applying for legalization of their immigration status may not be deported . . . ., they are not unlawfully in the United States . . . .") (citations omitted), cert. denied, 499 U.S. 908, 113 L. Ed. 2d 220, 111 S. Ct. 1111 (1991).
Yesil's continued presence did not become unlawful simply because he chose, as was his right, to apply for an adjustment in status. As Board Member Rosenberg stated in her dissent from the BIA's July 3, 1996 decision below:
Rather, the lawful or sanctioned character of [Yesil's] domicile from on and after the filing of his application is plain in light of § 241(i) of the [INA], as well as 8 C.F.R. § 245. Consequently, I would find that by virtue of terminating his nonimmigrant status and applying for a § 245 adjustment, there was no bar to him forming a lawful domiciliary intent.
In short, I hold that the BIA erred in concluding that the period between November 17, 1987, when Yesil applied for an adjustment in status, and March 25, 1988, when that adjustment was granted, did not accrue toward his seven years of "lawful unrelinquished domicile." Hence, the BIA also erred in concluding that Yesil was not eligible to be considered for section 212(c) relief.
2.The Period after March 17, 1995
Yesil argues that even if one looks only at his time as a lawful permanent resident, he acquired the necessary seven years on March 25, 1995 -- just eight days after the BIA's final order of deportation was issued on March 17, 1995. Yesil contends that he continued to accrue time as a lawful permanent resident even after the BIA's order because he sought judicial review to contest both the finding of deportability and the finding of ineligibility for section 212(c) relief. The issue presented, then, is whether the lawful permanent resident status ends, for purposes of the seven-year requirement, when the administrative process is completed and deportation is ordered but judicial review of deportability is sought.
Again, there is a split in the circuits. Most of the circuits that have addressed the issue of eligibility for section 212(c) relief after the issuance by the BIA of a final order of deportation have rendered decisions that do not support Yesil's position. Some have held that, where the alien had not met the seven-year requirement at the time of the final order of deportation, he could not continue to accrue time towards the required seven years as he pursued judicial review.
Others have held, more broadly, that an alien loses his lawful permanent resident status, and hence his eligibility for section 212(c) relief, upon the entry of a final order of deportation, even where that order was entered after more than seven years of "lawful unrelinquished domicile."
The only circuit to hold that the seven-year clock continues to tick after a final BIA order and pending judicial review is the Ninth Circuit. In Wall v. INS, 722 F.2d 1442, 1444-45 (9th Cir. 1984), the Court held that an alien who challenged the BIA's finding of deportability by petition for review became statutorily eligible for section 212(c) relief when he attained seven years of lawful domicile -- even though that point was not reached until after the BIA had issued its final order of deportation. Accord Ortega de Robles v. INS, 58 F.3d 1355, 1361 n.7 (9th Cir. 1995) ("Because Petitioner made a nonfrivolous challenge to her deportability, she has continued to accrue time since 1988 [toward the seven years] during the pendency of this appeal.") (citing Wall).
The Second Circuit has not directly addressed the question. Yesil relies heavily on Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), but that case is not controlling. Vargas did not involve the precise issue of whether the alien continued to accrue time as a lawful permanent resident after the BIA's final order of deportation and pending proceedings for judicial review. Rather, the alien in Vargas had accumulated substantially more than seven years time as a lawful permanent resident when the BIA issued its final deportation order. 938 F.2d at 358-59. The issue was whether the alien could file a motion to reopen the proceedings on the denial of section 212(c) relief to submit new evidence. Id. at 360. INS argued that the alien could not move to reopen the proceedings because he had lost his status as a lawful permanent resident when the BIA issued its final order of deportation. The Second Circuit rejected the argument and held that a final order of deportation did not bar an alien from requesting reopening of a properly filed section 212(c) request for relief. Id. at 363; accord Goncalves v. INS, 6 F.3d 830 (1st Cir. 1993) (BIA's rule barring motions to reopen deportation proceedings to seek reconsideration of BIA's order denying section 212(c) relief was arbitrary).
At best, Vargas is not inconsistent with Yesil's contention that the seven-year clock continues to run after the BIA's final order of deportation. Vargas simply does not, however, hold that the clock in fact continues to run.
Yesil also relies on Anderson v. McElroy, 953 F.2d 803 (2d Cir. 1992), and two unreported BIA decisions, In re Veloso-Erbetta, A 37 465 465 (BIA Jan. 24, 1990) (see R. 67-70), and In re Pichardo, A 40 077 409 (BIA Apr. 5, 1993) (see R. 83-84). Those decisions involved situations where INS or the BIA agreed to remand a case to the IJ to consider a section 212(c) application where the alien acquired the necessary seven years after the IJ's initial decision but before the BIA issued a final order of deportation. Anderson, 953 F.2d at 806; Veloso-Erbetta, slip op. at 4 (see R. 70); Pichardo, slip op. at 2 (see R. at 84). These cases are therefore distinguishable from the present situation, for the required seven years were accrued in those cases before the BIA issued its final order of deportation.
I am not persuaded that Yesil continued to accrue time toward the seven-year requirement after the BIA issued its final order. Although I agree that Yesil did not lose his permanent resident status after issuance of the BIA's order to the extent that (i) he could file a motion to reopen and (ii) he would be eligible for relief in the event he otherwise prevailed,
the BIA's view that an alien cannot continue to accrue time toward the seven years after issuance of a final order of deportation is not unreasonable. See Jaramillo, 1 F.3d at 1154 (finding to be "reasonable and permissible" Board's reasoning that "permitting lawful residence time to accrue pending review by the court of appeals would be unacceptable, because the appellate courts' scope of review is limited to errors of law or unfairness in procedure," and because "spurious appeals" would be encouraged). It should also be noted that in Vargas the Second Circuit cited as a reason for its ruling that the alien could file a motion to reopen that it did not have before it the concern that an alien was manipulating deportation proceedings "so as to acquire the seven years of domicile." 938 F.2d at 361.
In sum, Yesil's alternative argument on the merits is rejected.
I discuss venue briefly only to make the following observations. I am reluctant to second-guess the IJ and BIA on the question of venue, for issues such as administrative convenience and the availability of witnesses are matters committed to their discretion. The IJ, however, did not decide the venue question because he wanted to resolve the issues of deportability and Yesil's eligibility for section 212(c) relief first. Once he determined that Yesil was deportable and was not eligible for section 212(c) relief, he denied the venue motion essentially as moot, without ever considering the venue question on the merits. The BIA affirmed.
The IJ's refusal to consider the venue motion on the merits might very well have determined the outcome of the case, given the lack of consensus in the circuits on different important legal issues. The IJ engaged in circular reasoning in such a manner as to deprive Yesil of the right to have his venue motion decided on the merits, possibly to his great detriment. The IJ declined to rule on the venue question because he wanted first to rule on deportability and eligibility for the waiver. Yet, he declined to apply Second Circuit law because, in his view, the case arose outside the Second Circuit. (R. 206). Moreover, because he did not apply Second Circuit law, he found that Yesil was not eligible for the waiver. Finally, because he concluded that Yesil was not eligible for the waiver, he found that it was unnecessary to decide the venue question. If, of course, the IJ had decided the venue question first and agreed with Yesil that a change in venue to New York was appropriate, Second Circuit law would have been applied and there could very well have been a different result.
For the foregoing reasons, the petition is granted. This case is remanded to the BIA for consideration on the merits of Yesil's application for section 212(c) relief and for further proceedings not inconsistent with this opinion. The venue question is to be resolved before the application for section 212(c) relief is decided.
Dated: New York, New York February 27, 1997
United States District Judge