Matter of F-P-R-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided November 5, 2008
24 I&N Dec. 681 (BIA 2008)
Interim Decision #3630
FOR RESPONDENT: Judith A. Marty, Esquire, Fullerton, California
BEFORE: Board Panel: FILPPU, PAULEY, and HESS, Board Members.
PAULEY, Board Member:
In a decision dated February 6, 2007, an Immigration Judge granted the respondent‘s application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act,
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who initially arrived in the United States in 1983 without inspection. Later that year he returned to Mexico, where he stayed until returning without inspection to the United States in 1989. The respondent remained in the United States without lawful status until he returned to Mexico on June 17, 2005, to attend the funeral of his stepfather. Most recently, he came to the United States on July 20, 2005, when he was apprehended near the southern border and was
The Immigration Judge received evidence, mainly consisting of the respondent‘s testimony, at the stipulated merits hearings held on July 6, and July 25, 2006, in accordance with Grava v. INS, 205 F.3d 1177, 1180-81 (9th Cir. 2000). After giving the parties a final opportunity to submit briefs on the issues of the respondent‘s eligibility for asylum and withholding of removal, the Immigration Judge issued an oral decision granting the respondent‘s application for withholding of removal, but finding him ineligible for asylum as a result of his failure to file the Form I-589 within 1 year of his “last arrival” in the United States, as required by
With respect to the 1-year filing deadline, the Immigration Judge stated that “applicants should not be able to reset the asylum clock by taking a short excursion abroad,” and that “such an interpretation would undermine the [1-year] deadline‘s clear purpose of focusing the asylum process on those who have recently fled persecution in their home countries.” Thus, the Immigration Judge calculated the respondent‘s 1-year period of eligibility to apply for asylum from his second arrival in the United States in 1989 instead of his most recent coming to this country on July 20, 2005. In the absence of any controlling decisions on the issue from either the United States Court of Appeals for the Ninth Circuit or the Board, the Immigration Judge substantially adopted the rationale set forth by the Second Circuit in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006). On March 5, 2006, the respondent filed a timely appeal challenging the Immigration Judge‘s adverse asylum eligibility determination. The Department of Homeland Security has not filed a brief on appeal.
On appeal we must determine the meaning of the phrase “last arrival” in the
III. ANALYSIS
When construing the Attorney General‘s regulations, we abide by the canons of construction that generally apply to the interpretation of statutory texts. See Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001) (citing Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999)). We recognized in Matter of Artigas that “there is ‘no more persuasive evidence of the purpose of a [regulation] than the words by which the [Attorney General] undertook to give expression to [her] wishes.‘” Id. (quoting Perry v. Commerce Loan Co., 383 U.S. 392, 400 (1966)). Furthermore, the Board and the Immigration Judges, which are the adjudicative bodies within the Executive Office for Immigration Review, “‘must give effect to the unambiguously expressed intent’ of the Attorney General.” Id. (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)); see also Matter of W-F-, 21 I&N Dec. 503, 506 (BIA 1996).
Accordingly, in ascertaining executive intent, we look to the ordinary meaning of the words used in the regulation. Cf. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 993 (BIA 1999) (citing INS v. Phinpathya, 464 U.S. 183, 189 (1984)). “Arrival” is defined as the “act of arriving,” and “arrive” is defined as “to come to a certain point in the course of travel; reach one‘s destination” and “to come to a place after traveling.” The Random House Dictionary of the English Language 83 (unabridged ed. 1973). “Last” is defined as “occurring or coming after all others, as in time, order, or place” and “most recent, next before the present, latest.” Id. at 809.
These definitions make clear that the words “last arrival” refer to an alien‘s most recent coming or crossing into the United States after having traveled from somewhere outside of the country. Thus, we conclude that for purposes of calculating the period of time between the alien‘s arrival in the United States and the date on which an application for asylum was filed pursuant to section 208(a)(2)(B) of the Act, the term “last arrival” referred to in the regulation should, subject to a possible narrow exception discussed subsequently, be given its natural and literal meaning, i.e., the alien‘s most
Moreover, the regulation states that the 1-year filing period ”shall be calculated from the date of the alien‘s last arrival.”
In rendering his decision, the Immigration Judge relied on Joaquin-Porras v. Gonzales, supra, the only published decision to date from the courts of appeals construing the term “last arrival.” In that case the Second Circuit held that “the term ‘last arrival in the United States’ should not be read to include an alien‘s return to the United States after a brief trip abroad pursuant to a parole explicitly permitted by United States immigration authorities.” Id. at 179. While noting that this interpretation “seemed to disregard the words of the applicable regulation,” the court ultimately concluded that this selective manner of interpreting “last arrival” “best accords with the purpose of the statute as a whole.” Id. The Second Circuit based its conclusion principally on a survey of the legislative history behind the rewriting of section 208 of the Act by section 604(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of
We disagree with Joaquin-Porras v. Gonzales in that we discern no basis for construing the regulation as not taking into account entries that occurred after brief absences from the United States. Cf. Matter of Collado, 21 I&N Dec. 1061 (BIA 1998) (noting the demise of the so-called “Fleuti doctrine” as a result of the enactment of the IIRIRA). Whatever might be the policy advantages of the construction adopted by the Second Circuit, and whether or
We understand the concern that appears to underlie the Second Circuit‘s decision in Joaquin-Porras v. Gonzales, supra. Indeed, a literal construction of the term “last arrival” may have the potential to permit certain aliens to defeat the purpose of the 1-year asylum filing deadline by making a brief trip abroad for the sole or principal purpose of evading the time bar and resuscitating the ability to seek asylum. However, it is not disputed that the respondent‘s trip, although brief, was for the legitimate purpose of attending a relative‘s funeral. Thus, we need not here examine whether the regulation should be read to embody an implicit exception in a case where it is found that an alien‘s trip abroad was solely or principally intended to overcome the 1-year time bar.2
In light of the above, we will remand the record of proceedings to the Immigration Judge. Inasmuch as the Immigration Judge determined that the respondent has met his burden of proof for withholding of removal under section 241(b)(3) of the Act, it necessarily follows that he has met his burden of proof for asylum under section 208(a). Compare INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), with INS v. Stevic, 467 U.S. 407 (1984). Thus, the purpose of our remand is limited to determining whether the respondent merits asylum in the exercise of discretion, as the Immigration Judge did not make
ORDER: The respondent‘s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.