Criminal Defense of Immigrants

(F)  Lawful Domicile Requirement.  Seven years lawful unrelinquished domicile is required to be eligible for relief under former INA § 212(c).  This period ends upon entry of a final order of removal.[422]  A parent’s domicile in the United States is imputed to the parent’s unemancipated minor child for purposes of this requirement.[423]

While a noncitizen must be a lawful permanent resident to obtain a waiver under INA § 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal conviction occurring while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from denying that they are lawful permanent residents now.[424]  If the government mistakenly granted lawful temporary residence, the government’s remedy was to terminate the LTR status.[425]  Having failed to terminate, the person is a resident.[426]  Under the rescission cases and statute, the U.S. can rescind at any time if a noncitizen received LPR status by fraud.  After the noncitizen has held LPR status for five years, the government cannot rescind it in the absence of fraud.  Even if a noncitizen gets LPR status by fraud, s/he can still apply for 212(c) if s/he obtains an INA § 237(a)(1)(H) waiver to forgive the fraud.[427]

[422] See § 24.28(G), infra.

[423] Lepe-Guitron v. INS, 16 F.3d 1021, 1025-1026 (9th Cir. 1994) (because a child’s domicile follows that of his or her parents, the parents’ domicile in the United States is imputed to the parents’ unemancipated minor child for purposes of the seven years “lawful unrelinquished domicile” required for discretionary waiver under the now-repealed INA § 212(c), 8 U.S.C. § 1182(c)); accord, Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) (even if child is outside of the United States).

[424] But see Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. 2005).

[425] See INA § 245A(b)(2)(A); Matter of Medrano, 20 I. & N. Dec. 216(BIA 1990).

[426] See INA § 246, 8 U.S.C. § 1256; Matter of Belenzo, 17 I. & N. Dec. 374 (BIA 1981) (creating parallel structure for rescinding LPR status granted under INA § § 245 or 249, 8 U.S.C. § § 1255 or 1259).

[427] Matter of Sosa-Hernandez, 20 I. & N. Dec. 758 (1993).  See also Perez-Enriquez v. Gonzales, 411 F.3d 1079 (9th Cir 2005).  Thanks to Dan Kesselbrenner.