Summary Calendar JAIRO ANTONIO GONZALES-BUITRAGO v. Immigration and Naturalization Service

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
Nos. 92-4769 & 92-5241
Summary Calendar
_____________________
JAIRO ANTONIO GONZALES-BUITRAGO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Immigration and Naturalization Service
(A39 263 328)
_________________________________________________________________
September 24, 1993
Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
PER CURIAM:*
The Board of Immigration Appeals ("BIA") dismissed Gonzales-
Buitrago's appeal from the Immigration Judge's ("IJ") decision to
deny him relief from deportation under sections 212(c) (providing
for waiver of inadmissibility), 208(a) (providing for asylum),
and 243(h) (providing for withholding of deportation) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1182(c), 1158(a),

-- 1 of 10 --

1The IJ stated that, although his actual time served was not
reflected in the record, petitioner had certified that his actual
time served was twenty-seven months.
2
and 1253(h) (1988 and Supp. 1990) and to deport him. After the
BIA denied the appeal, he moved to reopen proceedings because he
claimed that he had acquired the requisite seven years lawful,
unrelinquished domicile required to be eligible for section
212(c) relief. The BIA denied petitioner's motion, which he
appeals. He also challenges, based on claims of due process
violations, the BIA's dismissal of his appeal from the IJ's order
to deport him. His two separate appeals have been consolidated.
Jurisdiction is proper because decisions of the BIA are
appealable directly to this court. 8 U.S.C. § 1105a(a)(2). We
affirm the decisions of the BIA.
I. Background
Jairo Antonio Gonzales-Buitrago is a 40-year-old citizen of
Colombia who claims to have lived and worked in the United States
since 1979. He also claims that he has been married to a U.S.
citizen since 1980, although this is not reflected in the record
on appeal. In addition, he is the father of a four-year-old
girl, who is a U.S. citizen. On September 4, 1985, he was
granted permanent resident alien status.
On February 7, 1990, he was convicted of possession with
intent to deliver cocaine and was sentenced to twenty-two years
confinement. He only served twenty-seven months of this
sentence.1 On March 20, 1990, an order to show cause was issued
against Gonzales-Buitrago, charging that he was a citizen of

-- 2 of 10 --

3
Colombia and had been convicted of knowingly possessing cocaine
with intent to deliver. This conviction rendered him deportable
under section 241(a)(11) of the Immigration and Nationality Act,
which has subsequently been amended and codified at 8 U.S.C. §
1251(a)(2)(B). On September 3, 1991, an additional charge of
deportability was lodged against him, stating that he had been
convicted of an aggravated felony. This conviction rendered him
deportable under section 241(a)(4)(B).
In a short hearing on the show cause order on September 25,
1991, petitioner admitted the allegations of the order and the
additional charge and conceded deportability. At the hearing, he
requested asylum and withholding of deportation eligibility and
was granted time to file an application and brief. On November
14, 1991, the IJ issued a written order finding that petitioner
was ineligible for asylum, withholding, or section 212(c) relief
because of his twenty-two year sentence for possession with
intent to deliver cocaine. Gonzales-Buitrago appealed from this
order, claiming that the IJ had erred by using the sentence
rather than the actual time served for the determination that he
was ineligible for section 212(c) relief and that a conviction
for possession should not render him ineligible for asylum or
withholding. On March 11, 1992, the IJ amended the original
order to change the reasons for denying section 212(c) relief
from the sentence imposed for cocaine possession to the lack of
seven years consecutive lawful residence.

-- 3 of 10 --

4
On appeal, petitioner challenged the amended order and
claimed that his appeal had deprived the IJ of jurisdiction to
make the amended order. On June 30, 1992, the BIA issued a
decision stating that the IJ's first order was in error and the
amended order was without effect because the appeal deprived the
judge of jurisdiction. However, after an independent and de novo
review, the BIA found that the error in the first order was
harmless and did not result in prejudice or render the
proceedings fundamentally unfair. The BIA dismissed petitioner's
appeal.
On September 9, 1992, Gonzales-Buitrago filed a motion to
reopen with the BIA, claiming that he had acquired the requisite
seven consecutive years lawful residence for section 212(c)
relief and challenging the BIA's and the IJ's decisions. The BIA
denied this motion because petitioner's lawful domicile ended
when it dismissed the appeal, which happened less than seven
years after he was granted permanent resident status. Thus,
according to the BIA, Gonzales-Buitrago was no longer eligible
for section 212(c) relief.
II. ANALYSIS
There are two different issues presented in this appeal:
whether the BIA erred in denying Gonzales-Buitrago's motion to
reopen the deportation proceedings so that he could apply for
relief under section 212(c); and whether the BIA violated due
process by affirming the IJ's decision based on an allegedly

-- 4 of 10 --

2The charge that petitioner admitted to states: "Any alien
who has engaged, is engaged, or at any time after entry engages
5
incomplete record and a finding that petitioner had not acquired
seven years of lawful residence.
The only statute really at issue before the Court is section
212(c), which provides:
Aliens lawfully admitted for permanent resident [sic]
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 without regard to the provisions of
subsection (a) of this section [governing classes of
excludable aliens]. . . .
8 U.S.C. § 1182(c). This provision has been interpreted to allow
aliens to apply for a discretionary waiver after an order of
deportation regardless of whether they have departed and returned
to the United States. See, e.g., Francis v. INS, 532 F.2d 268,
273 (2d Cir. 1976) (holding that the distinction between aliens
who had returned to the country after an absence and those who
had never left was irrational and thus unconstitutional); Mantell
v. United States Dep't of Justice, INS, 798 F.2d 124, 125 (5th
Cir. 1986) (adopting the interpretation that section 1182 allows
a permanent resident alien who has resided in the United States
for seven consecutive years to apply to the discretion of the
Attorney General for a waiver of deportability).
Gonzales-Buitrago admitted to an additional charge lodged
against him, stating that he had been convicted of an aggravated
felony and was subject to deportation pursuant to section
241(a)(4)(B) of the Immigration and Nationality Act.2 This

-- 5 of 10 --

in any terrorist activity (as defined in section
1182(a)(3)(B)(iii) of this title) is deportable." 8 U.S.C. §
1251(a)(4)(B). The applicable subsections of section 1182 define
terroristic activities as unlawful activities that involve
highjacking or sabotage; seizing or detaining and threatening to
kill, injure or continue to detain another individual to compel a
third person to do or not to do an act; and other similarly
violent activities. 8 U.S.C. § 1182(a)(3)(B)(ii).
6
section would ordinarily exclude him from eligibility for a
section 212(c) waiver. 8 U.S.C. § 1182(c). However, because
neither party has briefed or even raised this as an issue, we
decline to consider it on appeal. Friou v. Phillips Petroleum
Co., 948 F.2d 972, 974 (5th Cir. 1991).
A. Motion to reopen
The BIA has discretion to grant or deny a motion to reopen.
INS v. Rios-Pineda, 471 U.S. 444, 449 (1985). Thus, the standard
of review of the denial of a motion to reopen is abuse of
discretion. Ghassan v. INS, 972 F.2d 631, 637 (5th Cir. 1992),
cert. denied, 113 S. Ct. 1412 (1993). If the BIA's denial is
based on a finding of statutory ineligibility, the appellate
court should also review for errors of law. Id. Also, the
appellate court should give great weight to the BIA's
interpretation of immigration regulations; however, the court may
discount the BIA's interpretation if it is plainly unreasonable.
Id.; Ka Fung Chan v. INS, 634 F.2d 248, 252 (5th Cir. 1981).
The BIA deems decisions to deport final after it has made a
determination on appeal. When the BIA makes this determination,
the individual's status as a permanent resident alien has ended.
Ghassan, 972 F.2d at 637. Gonzales-Buitrago became a permanent

-- 6 of 10 --

7
resident alien on September 4, 1985. The BIA's final decision
occurred on June 30, 1992, less than seven years after he became
a permanent resident alien.
To warrant a reopening, petitioner must make a prima facie
showing that he is entitled to the relief sought. Id. He seeks
section 212(c) relief, which requires him to have been a
permanent resident alien who has lawfully resided in this country
for seven consecutive years before the order of deportation.
Mantell, 798 F.2d at 125. Thus, unless petitioner can establish
his permanent residence for more than seven years before the
order, he is not entitled to reopening.
Gonzales-Buitrago challenges the BIA's decision as to both
the point at which the seven year period begins to run and the
point at which it stops. For support, petitioner cites Lok v.
INS, 548 F.2d 37 (2d Cir. 1977), which held that the court could
consider time spent legally in the United States before becoming
a permanent resident alien for purposes of calculating the seven
year period. However, the Second Circuit is apparently the only
Circuit to recognize this rule. Prichard-Ciriza v. INS, 978 F.2d
219, 223 n.6 (5th Cir. 1992) (stating that only the Second
Circuit has accepted this rule). This court does not. See,
e.g., id. at 223; Ghassan, 972 F.2d at 634; Mantell, 798 F.2d at
125 (all stating that to be eligible for section 212(c) relief,
the individual must have resided in the United States as a
permanent resident alien for seven consecutive years). Thus, in

-- 7 of 10 --

3In addition, even applying a rule like the Second
Circuit's, Gonzalez-Buitrago has not established that he was
lawfully in the United States before he became a resident alien.
Although he claims that he worked in the United States from 1979
to 1981 and from 1984 to the present, he does not assert the
legality of his work during this time. In addition, he claims in
his brief that he married a United States citizen in 1980, but in
his answers to his application for asylum, pursuant to 8 CFR
208.11, he responded that he had no wife and no former wife. In
his brief, petitioner also claims that "at some point prior to
1985," he was the recipient of an approved relative visa
petition, which would give him the right to work in the United
States, pending approval of permanent resident status. However,
there is no evidence in the record to support this, and
petitioner does not give the date in his brief. Thus, in
reviewing the record, there is no evidence that petitioner was
legally employed during the period prior to 1985 or that he was
married in 1980. In addition, his answers are internally
inconsistent. Even applying the Second Circuit's rule,
petitioner has not established lawful residence before he became
a permanent resident alien.
8
this court, the time begins with the permanent resident alien
status and not before.3
Because the date on which the seven year period begins to
run is the receipt of permanent resident alien status, Gonzales-
Buitrago must show that his permanent resident alien status
continued after the final decision by the BIA to be eligible for
section 212(c) relief. However, this court has clearly held that
an alien's lawful status ends when the BIA rules him to be
deportable. Ghassan, 972 F.2d at 637; Rivera v. INS, 810 F.2d
540, 541 (5th Cir. 1987). Thus, petitioner is not eligible for
212(c) relief because he was not in the United States for seven
years from the beginning of his permanent resident status to the
final order by the BIA.

-- 8 of 10 --

9
Gonzales-Buitrago failed to establish his prima facie case
for entitlement to section 212(c) relief. Therefore, the BIA's
denial of his motion to reopen is not an abuse of discretion.
B. Affirmation of the decision to deport petitioner by the
BIA
When a petitioner requests section 212(c) relief, he bears
the burden of establishing that his application merits
consideration. Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir.
1992). In addition, the appellate court should give the BIA's
interpretation of the Act deference, unless there are "persuasive
indicators" of error. Id. Also, the court should review the
BIA's denial of the petition for 212(c) relief for abuse of
discretion. Villarreal-San Miguel v. INS, 975 F.2d 248, 250 (5th
Cir. 1992). The denial should be upheld unless it is arbitrary,
irrational, or not in accordance with the law. Diaz-Resendez,
960 F.2d at 495; Villarreal-San Miguel, 975 F.2d at 250.
Petitioner correctly states that the BIA's decision may be found
arbitrary if it fails to address meaningfully or consider all of
the material factors. Diaz-Resendez, 960 F.2d at 495; Luciano-
Vicente v. INS, 786 F.2d 706, 708 (5th Cir. 1986); Zamora-Garcia
v. INS, 737 F.2d 488, 490-91 (5th Cir. 1984).
However, the only meaningful factor relevant to Gonzales-
Buitrago's application for 212(c) relief was how long he has been
a permanent resident alien before the final order by the BIA.
Any additional information would have been extraneous to the
BIA's decision. Thus, because the extraneous factors regarding

-- 9 of 10 --

10
his residence in the United States before he was granted
permanent resident alien status are not relevant, the BIA did not
abuse its discretion by not taking evidence on them. For these
reasons, the record is not incomplete. The BIA did not abuse its
discretion or violate due process by dismissing his appeal and
ordering him deported.
III. Conclusion
For the foregoing reasons, we find that the BIA was correct
in dismissing petitioner's appeal and denying his motion to
reopen. The orders of the BIA are AFFIRMED.

-- 10 of 10 --