Delgado-Sobalvarro v. Attorney General of the United States
625 F.3d 782
3rd Cir.2010Background
- Delgado-Sobalvarro and her daughter are Nicaragua natives who entered the U.S. illegally and were released on conditional parole under INA § 236 while removal proceedings were pending.
- Removal proceedings charged them with being present without admission or parole; they were detained and later released on conditional parole on their own recognizance.
- An Immigration Judge (IJ) ruled they were ineligible to adjust status under § 245(a) because conditional parole is not parole into the U.S. for § 245 purposes and because marital status and lack of valid entry documents barred eligibility.
- The petitioners appealed to the Board of Immigration Appeals (BIA), which affirmed the IJ, holding that conditional parole does not render one eligible to adjust status and that due process violations were not shown.
- Petitioners argue that their § 236 conditional parole makes them eligible for adjustment, and they seek review of the BIA order denying adjustment of status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §236 conditional parole equals parole into the U.S. for §245 eligibility. | Delgado-Sobalvarro argues §236 conditional parole should qualify as parole into the U.S. | Government argues conditional parole is not parole into the U.S. and thus not §245 eligible | Not eligible for adjustment under §245 based on §236 conditional parole. |
| Do petitioners have due process merit based on transcripts, delay, and continuances. | Delgado-Sobalvarro contends procedural flaws prejudiced the case. | Government contends no substantial prejudice from alleged errors. | No due process violation established; insufficient prejudice shown. |
Key Cases Cited
- Zheng v. Gonzales, 422 F.3d 98 (3d Cir.2005) (paroled aliens are not admitted to the United States)
- Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010) (conditional parole under §236(a)(2)(B) is distinct from §212 parole; not §245 eligible)
- In re Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010) (stated above; basis for BIA interpretation (cited within))
- Khan v. Att'y Gen., 448 F.3d 226 (3d Cir.2006) (due process requires prejudice; continuances denied if no prima facie case)
- Pinho v. Gonzales, 432 F.3d 193 (3d Cir.2005) (plenary review of BIA if statutory eligibility disputed)
- Tineo v. Ashcroft, 350 F.3d 382 (3d Cir.2003) (Chevron deference to BIA interpretations of immigration law)