## Facts

- Ernest Francis, a Jamaican citizen, was admitted to the United States as a lawful permanent resident in 1961 and maintained an unrelinquished domicile for more than seven years.
- He lived in New York with substantial U.S.-citizen family ties and worked as a handyman.
- In 1971, he pleaded guilty in New York state court to criminal possession of marijuana and received probation.
- The INS initiated deportation proceedings under INA § 241(a)(11) based on the narcotics conviction.
- Francis sought discretionary relief under INA § 212(c), which the agency treated as available only to lawful permanent residents who had “temporarily proceeded abroad” and returned.
- Because Francis had not departed the United States after his conviction, the immigration judge and the BIA held him categorically ineligible for § 212(c) consideration and entered a final deportation order.
- Francis petitioned for judicial review, arguing the agency’s “departure and return” limitation violated the equal-protection component of the Fifth Amendment.

## Issues

1. Whether the Fifth Amendment permits the government to deny § 212(c) eligibility to a lawful permanent resident with seven years’ unrelinquished domicile solely because he never traveled abroad, while allowing similarly situated residents who traveled and returned to seek discretionary relief.
2. Whether the agency’s “departure and return” distinction for § 212(c) relief has a rational basis related to a legitimate governmental interest.

## Decision

- The court granted the petition for review.
- It held unconstitutional, as applied, the agency’s interpretation and application of § 212(c) that made eligibility turn on a temporary post-conviction departure and return.
- It set aside the deportation order to the extent it rested on Francis’s categorical ineligibility for § 212(c).
- It remanded so immigration authorities could consider Francis for § 212(c) relief on the same terms as similarly situated lawful permanent residents who had traveled abroad and returned.

## Legal Principles

- The Fifth Amendment’s Due Process Clause contains an equal-protection component that constrains federal immigration adjudication.
- Even in immigration, a classification affecting a resident alien’s ability to remain in the United States must satisfy rational-basis review.
- The government may not condition access to discretionary relief on a distinction that is unrelated to the relief’s purpose and treats similarly situated lawful permanent residents differently without a rational justification.
- A statutory or administrative scheme that grants eligibility for discretionary relief to otherwise identical residents based solely on the fortuity of travel abroad violates equal protection.
- The appropriate remedy for an unconstitutional eligibility restriction may be to extend access to the discretionary process to the excluded, rather than eliminate the relief.

## Conclusion

The Second Circuit held that limiting § 212(c) eligibility to lawful permanent residents who briefly left the United States and returned, while denying the same opportunity to otherwise identical nontraveling residents, lacked a rational basis and violated equal protection; the case was remanded for discretionary consideration without the departure requirement.


Francis v. I.N.S., 532 F.2d 268 (2d Cir. 1976)