On Petition for Review of an Order of the Board of Immigration Appeals
(INS No. A42-267-305) Argued March 25, 1996
Before: SLOVITER, Chief Judge, GREENBERG and ROTH, Circuit Judges
(Opinion filed July 26, 1996)
Eleazar Morel petitions for review of the decision of the Board of Immigration Appeals (BIA) because he was declared ineligible to apply for relief from deportation under section 212(c) of the Immigration and Nationality Act (INA). Our review requires that we consider two legal issues, neither of which this circuit has previously addressed: whether the INS erred in imposing a requirement of seven consecutive years' domicile after the alien was admitted to the United States as a lawful permanent resident and whether the domicile of a parent may be imputed to his or her child in appropriate cases for purposes of meeting the seven-year domicile requirement.
Morel is a native and citizen of the Dominican Republic, born there on June 13, 1972. *fn1 He was admitted to the United States as a lawful permanent resident on December 20, 1989 *fn2 when he was seventeen years old. He resided in Paterson, New Jersey with his mother, who had preceded him to this country by approximately four years.
Morel was arrested on August 24, 1991, and later pled guilty to possession of cocaine, rendering him deportable under 8 U.S.C. 1251(a)(2)(B)(i). The Order to Show Cause issued by the Immigration and Naturalization Service (INS) states, and the immigration judge (IJ) found, that Morel was also convicted of "employing a juvenile in a drug distribution scheme," App. at 48, 13, an offense which would be classified as an "aggravated felony" for purposes of the immigration laws, see 8 U.S.C. Section(s) 1101(a)(43). However, the state court record is to the contrary. The Judgment of Conviction issued by the New Jersey Superior Court states that Morel was convicted only of one count of possession of a controlled dangerous substance, and that the other offense with which Morel was originally charged, possession of a controlled dangerous substance within 1,000 feet of school property, was dismissed. App. at 37.
After serving his sentence in New Jersey, Morel was transferred to an INS detention facility in Oakdale, Louisiana, where the INS initiated deportation proceedings. At a hearing held on January 17, 1994, Morel requested relief from deportation pursuant to section 212(c) of the INA, 8 U.S.C. Section(s) 1182(c). The immigration judge denied Morel's request on the ground that he did not meet the requirements of section 212(c), and ordered him deported to the Dominican Republic. App. at 24. On April 10, 1995, the BIA affirmed the order and dismissed Morel's appeal. Morel filed his petition for review to this court on May 11, 1995.
We have plenary review over questions of law, but must defer to an agency's reasonable construction of ambiguities in the statutes it is charged with administering. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45 & n.11 (1984); Katsis v. INS, 997 F.2d 1067, 1069-70 (3d Cir. 1993), cert. denied, 114 S.Ct. 902 (1944). We will uphold the agency's findings of fact to the extent that they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. Section(s) 1105a(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
We must first consider a matter of this court's jurisdiction, an issue over which we have plenary review. Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 834 (3d Cir. 1995). The INS initially filed a motion to dismiss the petition for review on the ground that Morel filed his petition one day late. A motions panel of this court referred the matter to the merits panel. However, in the brief the INS subsequently filed with us on the merits of the petition for review, it conceded that the appeal was timely. See Appellee's Brief at 1 ("The petition for review was filed on May 11, 1995, and therefore is timely under Section 106(a)(1) of the INA, 8 U.S.C. Section(s) 1105a(a)(1)").
The time for filing a petition for review differs, depending on whether the petitioner was convicted of an aggravated felony or a lesser offense. See 8 U.S.C. Section(s) 1105a(a)(1) ("[A] petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order, or, in the case of an alien convicted of an aggravated felony . . ., not later than 30 days after the issuance of such order."). Thus, had Morel been convicted of an "aggravated felony," we would indeed lack jurisdiction to consider this appeal because Morel did not file his petition for review within thirty days, as required in the case of an aggravated felony. Although at his deportation hearing Morel's attorney answered "yes" to the immigration judge's question "do you admit [the] allegations [of the Order to Show Cause] on behalf of your client?" and those allegations included the conviction on both charges, see App. at 27, 48, Morel now argues that because the only crime of which he was convicted, drug possession, is not an aggravated felony under the INA, the 90-day time limit governs and his petition for review was timely filed.
In response to an inquiry from this court following oral argument, the INS once again reversed its position on the issue of our jurisdiction. It now insists that Morel's appeal is untimely, and that he is estopped from asserting that he was not convicted of an aggravated felony because he conceded this point at his deportation hearing. We are not persuaded that this is an appropriate case for estoppel.
Because Morel would have been deportable for possession of a controlled substance, there was no reason for Morel to have focused on whether he had also been convicted of any other charge at the deportation hearing. Morel could not then have anticipated that conviction of an aggravated felony would later become relevant to the timeliness of his petition to this court. Therefore, we will not now estop him from arguing that he was not convicted of an aggravated felony. See Restatement (Second) of Judgments Section(s) 27, 28(2)(a) & (5)(b)(1980) (issue preclusion successfully invoked only when issue was actually litigated and essential to previous judgment, and not when issue's reappearance involves substantially unrelated claim or was not sufficiently foreseeable).
The judgment of conviction in Morel's criminal case clearly shows that he was convicted only of drug possession, see App. at 37, and the government does not argue otherwise. That offense is not an aggravated felony under the immigration laws. To the extent the IJ should be viewed as having made a factual finding that Morel was convicted of an aggravated felony, that finding was not supported by substantial evidence. It follows that Morel had 90 days within which to file his notice of appeal under 8 U.S.C. Section(s) 1105a(a)(1), and accordingly his appeal is timely.
The INS does not dispute that venue is proper in this court, although this is an appeal from the BIA in Louisiana. Under the applicable statute, a petitioner may seek judicial review in either the circuit in which the hearing took place or the circuit of his residence. 8 U.S.C. Section(s) 1105a(a)(2). Morel's residence prior to his arrest was in Paterson, New Jersey, and apparently he returned to his home in New Jersey following his release from INS custody.
The INS nonetheless suggests that this court should review the reasonableness of the BIA's decision in light of Fifth Circuit law, because that was the jurisdiction in which the case arose. While it may be anomalous that there could be differing circuit law governing a federal agency's application of a uniformly applicable federal statute where two circuits have potential connection with the case, all of the other appellate courts confronted with a similar situation have applied the law of their own circuits. See Rosendo-Ramirez v. INS, 32 F.3d 1085, 1091-94 (7th Cir. 1994)(holding court was obliged to apply its own law despite problems created by lack of uniformity in application of immigration laws); Maldonado-Cruz v. Dept. of Imm. & Naturalization, 883 F.2d 788, 790-91 (9th Cir. 1989)(applying Ninth Circuit law where alien's detention and hearings occurred in ...