Eleazar Morel v. Immigration and Naturalization Service , 90 F.3d 833 ( 1996 )

OPINION OF THE COURT

SLOVITER, Chief Judge.

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.

I.

Morel is a native and citizen of the Dominican Republic, born there on June 13, 1972.¹ He was admitted to the United States as a lawful permanent resident on December 20, 1989² 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. § 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. § 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, 104 S.Ct. 2778, 2781-83 & n. 11, 81 L.Ed.2d 694 (1984); Katsis v. INS, 997 F.2d 1067, 1069-70 (3d Cir.1993), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994). 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. § 1105a(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992).

II.

We must first consider a matter of this court’s jurisdiction, an issue over which we have plenary review. Copian 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. § 1105a(a)(l)”).

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. § 1105a(a)(l) (“[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 deporta-ble 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 §§ 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. § 1105a(a)(l), 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. § 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 Fifth Circuit based on “the general policy of preventing forum shopping by the INS” and fact that alien’s only contact with Fifth Circuit was his detention there). We will likewise apply the law of our own jurisdiction.

III.

A.

At issue in this appeal is whether the BIA erred in determining that Morel was ineligible for a waiver of inadmissibility under section 212(c) of the INA. Section 212(a) identifies those classes of aliens who are ineligible to receive visas and are excluded from admission to the United States. Section 212(c), however, authorizes the Attorney General to waive the restrictions of section 212(a) where an alien satisfies certain conditions. That section provides:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General....

8 U.S.C. § 1182(c).

We note in passing that the language of section 212(e) appears on its face to apply only to aliens who seek to re-enter the country. Nonetheless, the provision has been uniformly extended to apply to deportation proceedings as well.³ See Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994); Tapia-Acuna v. INS, 640 F.2d 223, 224-25 (9th Cir.1981); Francis v. INS, 532 F.2d 268, 271-73 (2d Cir.1976); Matter of Silva, 16 I & N Dec. 26, 30 (BIA 1976). Even if we were inclined to reconsider this issue, we are bound by our previous determination in Katsis that we would follow the uniform construction. Moreover, we note that the INS does not now dispute the applicability of section 212(c) to deportation proceedings, and thus this issue is not before us. Instead, we turn to Morel’s challenge to the BIA’s ruling.

B.

Morel’s argument is twofold. First, he contends that the BIA has erroneously interpreted section 212(c) to require seven years of domicile subsequent to admission as a lawful permanent resident, a requirement Morel maintains is not imposed by the statute. Second, although Morel concedes that he had not resided in this country for seven consecutive years at the time of his deportation hearing, he contends that the domicile of his mother, who he claims became a permanent resident on May 27, 1985, should be attributed to him for the period before he joined her in 1989. He bases the latter argument on the accepted common-law principle that a minor child’s domicile is that of his or her parent.

The IJ recognized that Morel claimed the requisite domicile based on his mother’s permanent resident status, but held that “the respondent is not eligible for the relief in this Circuit or in this Court of 212(c) waiver based upon his mother’s date of the issuance of the green card. Therefore, it has not [sic] choice.” App. at 24. The BIA affirmed the IJ’s decision and dismissed the appeal in a per curiam opinion. The BIA noted that the Fifth Circuit had not addressed the imputation-of-domicile issue, and expressly declined to apply the reasoning of the other courts which had imputed the domicile of a parent to the parent’s minor child for purposes of determining whether the child had satisfied the seven-year domicile requirement of section 212(c). App. at 3 n. 1. Of course, the possibility of imputing a parent’s domicile to his or her child will ordinarily be relevant only if the BIA erred in its reading of section 212(c) as requiring seven years of permanent residency status. Thus, we turn to the latter issue first.

C.

While the BIA has long held that the seven years of domicile required by section 212(c) must follow admission as a lawful permanent resident, see Matter of S., 5 I & N Dec. 116, 117-18 (BIA 1953), the courts of appeals have read the statute differently. It was the Second Circuit that held initially, based on both the statutory language and the legislative history, that the seven years of domicile need not occur after attainment of permanent residency status. See Lok v. INS, 548 F.2d 37, 39 — 41 (2d Cir.1977). Recently, the Seventh Circuit has agreed with the Second Circuit’s approach. See Castellon-Contreras v. INS, 45 F.3d 149, 152-54 (7th Cir.1995). Just this year, the Fifth Circuit ruled in accord with the Second and Seventh Circuits on this issue. See White v. INS, 75 F.3d 213 (5th Cir.1996).

The Ninth Circuit has wavered. In Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979), it deferred to the BIA’s interpretation, but it has since modified this position somewhat, creating an exception for children of aliens in a ease analogous to this one, see Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir.1994) (holding that aliens who, as minor children, lived with permanent resident parents before independently attaining permanent resident status may count that period toward section 212(c)’s seven-year domicile requirement). Most recently, that court held that aliens granted temporary resident status under the amnesty provisions of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a, may count the period as a temporary resident toward the seven-year domicile requirement. Section 212(c), Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir.1995).

The Fourth Circuit is the only court of appeals to have accepted the BIA’s interpretation of section 212(c) in all respects. See Chiravacharadhikul v. INS, 645 F.2d 248 (4th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981). When this issue previously arose before us, we recognized the differing interpretations but declined to resolve the issue at that time. See Graham v. INS, 998 F.2d 194, 195 (3d Cir.1993). In this ease, the matter is squarely before us.

Morel’s argument, and one which the government has never satisfactorily answered in this case, is based on the distinction made in the statute itself between “admi[ssion] for permanent residence” and “lawful ... domicile.” The INA defines “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20). The INA does not define “domicile,” but the term is ordinarily understood to mean physical presence with an intent to remain in that place indefinitely. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989); Graham, 998 F.2d at 195. Therefore, in order for an alien to establish a “lawful” domicile, the alien must be legally capable of forming an intent to remain in the United States indefinitely. See Castellon-Contreras, 45 F.3d at 153.

Aliens such as those admitted as temporary visitors, students or workers may not lawfully form an intent to remain in the United States because they have visas that require that the holder have “a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101(a)(15). This excludes them as lawful “domiciliaries.” See Graham, 998 F.2d at 196; see also Melian v. INS, 987 F.2d 1521, 1525 (11th Cir.1993)(alien on temporary visitor visa cannot lawfully establish intent to remain since maintenance of foreign domicile required); Brown v. INS, 856 F.2d 728, 731 (5th Cir.1988)(alien on student visa cannot lawfully establish intent to remain since maintenance of foreign domicile required); Anwo v. INS, 607 F.2d 435, 437 (D.C.Cir.1979)(same). Likewise, an alien who enters the country illegally cannot have a lawful intent to remain here. Castellon-Contreras, 45 F.3d at 153.

It does not follow that the two statutory phrases — admission for permanent residence and lawful domicile — are co-extensive. Certain categories of aliens may lawfully form an intent to remain here without having been admitted for permanent residence. For example, aliens holding G-4 visas, which are issued to nonimmigrants who are “officers, or employees of ... international organizations [recognized under the International Organizations Immunities Act, 22 U.S.C. §§ 288-288j], and the members of their immediate families,” 8 U.S.C. § 1101(a)(l5)(G)(iv), may legally intend to remain in this country. See Elkins v. Moreno, 435 U.S. 647, 666, 98 S.Ct. 1338, 1349-50, 55 L.Ed.2d 614 (1978). Similarly, certain foreign businesspersons and investors, see 8 U.S.C. § 1101(a)(15)(E), and refugees granted admission to escape persecution in their home countries, see 8 U.S.C. § 1101(a)(42), may legally establish a domicile in the United States.. The Seventh and Ninth Circuits have also noted that aliens granted temporary resident status under the amnesty provisions of the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a, may intend to remain indefinitely in the United States. See Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir.1995); Castellon-Contreras v. INS, 45 F.3d 149, 154 (7th Cir.1995).

The INS concedes that there are categories of aliens who may legally intend to remain in the United States without being admitted as permanent residents, but nevertheless insists that section 212(e) requires seven years of lawful domicile following admission as a permanent resident. But the two requirements of section 212(c) are distinct and independent conditions. Nothing in the statute suggests that these requirements qualify or limit one another in a way that would require that all seven years of “lawful domicile” have been in a “permanent resident” status. See Castellon-Contreras, 45 F.3d at 153; Rosario v. INS, 962 F.2d. 220, 223 (2d Cir.1992); see also Mark A. Hall, Comment, Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act, 47 U.Chi.L.Rev. 771, 775-76 (1980). The INS’ interpretation is thus inconsistent with the plain reading of the language of section 212(c).

The plain language' of a statute “should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). The plain language of section 212(c) is consistent with its purpose, which is to permit application for a waiver of deportation for individuals who have established significant ties to this country. See Castellon-Contreras, 45 F.3d at 153 (“[T]he plain meaning of the term ‘lawful unrelinquished domicile’ .... does not lead to either an absurd result, or one at odds with Congressional policy.”). Although, as the Lok court noted, the legislative history of section 212(c) also supports the more liberal interpretation, see 548 F.2d at 40-41 (quoting Senate Report excerpt suggesting that Judiciary Committee had considered but rejected proposal to limit waiver eligibility to aliens accumulating seven years’ domicile after admission as permanent residents), we need not attempt to construe legislative history when the provision itself is clear. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984)(“Where ... resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.”).⁴

The INS argues that we should defer to the BIA’s interpretation under the rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), because the BIA’s position represents that of the agency charged with the statute’s administration. Of course we recognize that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Id. at 844, 104 S.Ct. at 2782. However, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43,104 S.Ct. at 2781.

We believe that in this case the intent of Congress is explicit, and the BIA’s interpretation of section 212(e) is manifestly contrary to both the provision’s language and purpose. By imposing a requirement that an alien have completed the entire seven years permanent residency before his or her application for relief from deportation may be considered, the BIA has created an additional obstacle to relief which Congress did not include in the statute.

D.

That conclusion leads us to consider whether Morel can establish the requisite seven years of lawful domicile by relying in part upon the domicile of his mother prior to his reaching the age of majority. We know of only two courts that have directly addressed whether the domicile of a parent may be imputed to his or her child for determination of the child’s eligibility for section 212(c) relief, and both have answered this question in the affirmative.

In Rosario v. INS, 962 F.2d 220 (2d Cir.1992), the court explained that because the legislative history of the INA does not define “domicile,” it would look to the common-law meaning of that term. Citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), the Rosario court concluded that “[a] minor’s domicile is the same as that of its parents, since most children are presumed not legally capable of forming the requisite intent to establish their own domicile.” Rosario, 962 F.2d at 224.

Similarly, the Court of Appeals for the Ninth Circuit in Lepe-Guitron v. INS, 16 F.3d 1021 (9th Cir.1994), held that children obtaining permanent resident status before reaching majority may count their parents’ period of lawful domicile toward their own. Although in its earlier decision in Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979), that court had upheld the INS interpretation of “lawful unrelinquished domicile” as accumulating only after the alien acquires permanent residence, in Lepe-Guitron the court adopted a more expansive interpretation of “domicile” for children. The court relied upon both the common-law notion that a child’s domicile follows that of her parents and its belief that “section 212(c)’s core policy concerns would be directly frustrated by the government’s proposal to ignore the parent’s domicile in determining that of the child.” 16 F.3d at 1025.

The reasoning that guided the courts in Rosario and Lepe-Guitron leads us to a similar conclusion. In Holyfield the Supreme Court considered whether children born out of wedlock to parents who were members of the Choctaw Indian Tribe and residents and domiciliaries of the Choctaw Reservation were “domiciled” on that reservation within the meaning of the Indian Child Welfare Act, although they had never been physically present on the reservation. The Court concluded that the children were in fact domicili-aries of the reservation, based on the generally accepted meaning of the term “domicile” and because applying that definition would be consistent with the purpose of the statute. In light of the fact that Congress had neither defined “domicile” in the Indian Child Welfare Act nor demonstrated an intent that its definition should be a matter of state law, the Court “start[ed] with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used,” viewed “in the light of the object and policy of the statute.” 490 U.S. at 47, 109 S.Ct. at 1607-08 (citations omitted).

The Holyfield court explained that for adults, domicile is established by physical presence in a particular place plus an intent to remain there. Id. at 48, 109 S.Ct. at 1608. One acquires a “domicile of origin” at birth, and retains that domicile until s/he chooses a new one. However, because “most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents.” Id. Thus, it follows that “[o]n occasion, a child’s domicile of origin will be in a place where the child has never been.” Id. (quoting Restatement (Second) of Conflict of Laws § 14 cmt. b (1988)).

Based on the reasoning in Holyfield, we too conclude that the domicile of a parent may be imputed to his or her child for purposes of determining whether the child has met the seven year domicile requirement of section 212(c). As with the Indian Child Welfare Act construed in Holyfield, Congress neither defined “domicile” in the INA nor indicated that it should be interpreted by reference to state law. Moreover, application of the common-law definition of “domicile” here is consistent with the “object and policy” of section 212(c), which is to provide relief to aliens for whom deportation “would result in peculiar or unusual hardship,” S.Rep. No. 355, 63d Cong., 2d Sess. 6 (1914)(diseussing purpose of the 7th Proviso to section 3 of the Immigration Act of 1917, the precursor to section 212(c)).

Various provisions of the INA reflect Congress’s intent to prevent the unwarranted separation of parents from their children. For example, the INA provides an immigration preference for the alien children of permanent residents and United States citizens, 8 U.S.C. §§ 1152(a)(4), 1153(a)(1) & (2), and children applying for permanent residency status from outside the United States receive the same priority date and preference category as that of their parents, 8 C.F.R. § 245.1(e)(2)(vi)(B)(l) (1996). The INA also waives excludability for certain aliens who have helped their children enter the country illegally. 8 U.S.C. § 1182(a)(6)(E)(ii). See Lepe-Guitron, 16 F.3d at 1025.

The BIA’s interpretation of “domicile” as it applies to children is plainly inconsistent with the term’s customary meaning. Moreover, the BIA’s restrictive interpretation violates the principle that ambiguous deportation provisions should be construed in favor of the alien. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987); Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 585, 11 L.Ed.2d 559 (1964); Rosario, 962 F.2d at 225. We therefore decline to defer to its construction in this instance.

Having concluded that the domicile of a minor child may follow that of his or her parents in appropriate circumstances, the issue arises as to which parent’s domicile should be determinative. At common law, the domicile of a child born in wedlock followed that of the father, while an “illegitimate” child assumed the domicile of the mother. See Restatement (Second) of Conflict of Laws § 14(2) (1988); Holyfield, 490 U.S. at 48, 109 S.Ct. at 1608. In Rosario, the court of appeals declined to follow the common-law definition of “domicile” to the extent that it relied upon the marital status of the child’s parents for purposes of section 212(c), and decided instead that a minor should be permitted “to establish domicile through a parent with whom he had a significant relationship during the time in question.” 962 F.2d at 224. We agree with the Rosario court that such an approach better serves “the ameliorative purpose of § 212(e).” Id. It is more consistent with Congress’ concern with keeping families intact, reflected in the other provisions referred to above, to have the imputation of a child’s domicile turn on the nature of the relationship between parent and child rather than on the status of the parents’ relationship.

Of course, it does not follow that satisfaction of the seven year domicile requirement through the imputation of domicile of a parent to a minor child will alone warrant the waiver authorized by section 212(c). The waiver power given by Congress to the Attorney General and delegated by the Attorney General to the BIA is a discretionary one. Undoubtedly, the BIA will take various factors into consideration, such as the length of the alien child’s stay in this country, the child’s age, the reasons for the child’s failure to satisfy independently the seven year lawful domicile requirement, and the nature of the child’s relationship with the domiciliary parent. For example, a child prevented from rejoining his or her parent in this country because of the outbreak of hostilities abroad may be treated differently than one who was separated from the domiciliary parent for a substantial period of the time at issue for other reasons.

In this case, there is no indication that the BIA exercised any discretion. In addition, the record is insufficient to permit us to determine if Morel even established the requisite period of domicile through his mother. Because the IJ and BIA decided that the date from which Morel’s mother established a lawful unrelinquished domicile in this country was irrelevant for purposes of Morel’s case, Morel was not given an opportunity to present evidence establishing the period of his mother’s domicile or the nature of his relationship with her. We will therefore remand for determination of these issues.

IV.

For the reasons set forth above, we will grant Morel’s petition for review and remand the matter to the BIA for further proceedings consistent with this opinion.

1 . Because of the manner in which this case reaches us, there are almost no record facts and we rely in part on information given by counsel and in the briefs. We proceed nonetheless as the issues raised in this petition are legal ones. On remand, the BIA or the immigration judge will be free to ascertain the relevant facts.

2 . The date indicated in the opinion issued by the BIA is December 29, but other portions of the record, including the opinion of the Immigration Judge, suggest that the date was actually December 20.

3 . The Second Circuit was the first court to apply § 212(c) to deportation proceedings in Francis v. INS, 532 F.2d 268, 271-73 (2d Cir.1976), holding that the distinction between lawfully admitted aliens who had temporarily left the country and those who had never left violated equal protection because it was "wholly unrelated to any legitimate governmental interest.” 532 F.2d at 273.

4 . It is significant that where Congress .intended to adopt a restriction in the INA similar to that the INS suggests here, it did so explicitly. See, e.g., 8 U.S.C. § 1427(a)(limiting naturalization to applicants who have resided continuously in the United States for at least five years “after, being lawfully admitted for permanent residence”); § 1430(a) (limiting naturalization of spouses of United States citizens to those who have resided continuously in the United States for at least three years "after being lawfully admitted for permanent residence”). See also Lok, 548 F.2d at 41.