607 F.2d 435

Mohammed Taoheed ANWO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 77-1879.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 17, 1978.

Decided June 19, 1979.

Lois E. Bruckner, Rockville, Md., for petitioner.

Lauri Steven Filppu, Atty., Dept, of Justice, Washington, D. C., with whom Richard I. Chaifetz, Atty., Dept, of Justice, Washington, D. C., was on the brief, for respondent.

Before BAZELON and McGOWAN, Circuit Judges, and GASCH,* United States District Judge for the United States District Court for the District of Columbia.

Opinion PER CURIAM.

PER CURIAM:

Petitioner, a citizen of Liberia who has resided in this country since 1969, seeks a determination that he is eligible to ask the *436Attorney General for discretionary relief from an order of deportation. Petitioner’s eligibility for relief turns on whether he has established a “lawful unrelinquished domicile of seven consecutive years” in accordance with § 212(c) of the Immigration and Nationality Act.1 Because we find that the petitioner cannot satisfy this condition, we must affirm the deportation order of the Board of Immigration Appeals.

I.

Mohammed Taoheed Anwo entered the United States on a student visa in 1969. In 1971 he married Edith Lewis, also from Liberia, who was then a resident alien but is now an American citizen. Two years later, pursuant to § 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1976), Anwo’s immigration status was adjusted to permanent resident. Petitioner now lives in Washington, D. C., separated from his wife and son in New Jersey.

On September 29, 1975, Anwo appeared before a federal magistrate, pleaded guilty to a charge of possessing five pounds of marijuana, and was placed on probation for two years. Shortly thereafter, in November, 1975, the Immigration and Naturalization Service (INS) began deportation proceedings under § 241(a)(ll) of the Immigration Act, which permits deportation of an alien “who at any time has been convicted of a violation of any law or regulation relating to the illicit possession of marihuana.”2 In January, 1976, the Immigration Judge found Anwo deportable, and Anwo took an administrative appeal.

On August 4, 1977, the Board of Immigration Appeals issued its decision, rejecting petitioner’s argument that he would be eligible for discretionary relief under § 212(c) and sustaining the order of deportation. A final deportation to Liberia was therefore issued on September 23, 1977, and this appeal followed.

II.

Section 212(c) applies only to “[ajliens lawfully admitted for permanent residence who are returning to a lawful unrelinquished domicile of seven consecutive years.”3 Since the incorporation of this provision in the Immigration and Nationality Act of 1952, the Board of Immigration Appeals has consistently interpreted the “lawful unrelinquished domicile” requirement to mean that the alien must have maintained a domicile in this country for seven consecutive years after his lawful admission for permanent residence. See, e. g., Matter of S, 5 I&N Dec. 116 (1953). In Tim Lok v. Immigration & Naturalization Service,4 however, the Second Circuit recently rejected this interpretation. The court concluded that the phrase “lawful unrelinquished domicile” does not imply that the alien must hold permanent resident status for all seven years; rather he only need show that he has been lawfully domiciled in *437this country for seven years and that he is a permanent resident at the time he applies for discretionary relief.

Despite the Second Circuit’s decision in Tim Lok, the Board of Immigration Appeals denied Anwo’s request to remand his case to permit him to develop evidence on his eligibility for relief under § 212(c).5 The Board reiterated its view that the enactment of § 212(c) in 1952 evidenced a specific congressional intent to narrow the scope of discretionary relief from that which had previously been available under the Seventh Proviso to section 3 of the Immigration Act of 1917.6 Consistent with its reading of the statute and the legislative history, the Board, declined to accept Tim Lok’s interpretation of § 212(c) and instead adhered to its position that § 212(c) is available only to one who has both (a) established a lawful permanent residence, and (b) maintained it for seven consecutive years.

We need not now choose between the conflicting interpretations of the Board and the Second Circuit, for we are convinced that even under the more permissive Tim Lok standard, Anwo has failed to satisfy § 212(c)’s requirement of a “lawful unrelinquished domicile of seven consecutive years.” Although the word “domicile” is nowhere defined in the Immigration & Nationality Act, it is generally accepted that domicile is not established unless an individual intends to reside permanently or indefinitely in the new location.7 For at least three of the seven years during which petitioner claims to have been lawfully domiciled in this country, he held the status of a non-immigrant student. In order to qualify for a student visa, however, the alien must “enter the United States temporarily and solely for the purpose of pursuing such a course of study” and must maintain “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101-(a)(15)(F)(i)(1976). Thus Anwo could not have established a “lawful domicile” in the United States during the period in which he held a student visa. On the one hand, if Anwo complied with the terms of his visa and did not intend to abandon his residence in Liberia, then he was not “domiciled” in this country; on the other hand, if Anwo did intend to make the United States his permanent home and domicile, then he violated the conditions of his student visa and was not here “lawfully.”8 Under either *438hypothesis, Anwo cannot satisfy the eligibility requirements of § 212(c).9

Accordingly, the order of the Board of Immigration Appeals is

Affirmed.

Anwo v. Immigration & Naturalization Service
607 F.2d 435

Case Details

Name
Anwo v. Immigration & Naturalization Service
Decision Date
Jun 19, 1979
Citations

607 F.2d 435

Jurisdiction
United States

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