NIAYESH
(2) The District Director has exclusive jurisdiction to parole an alien into the United States pursuant to
(3) An alien who is paroled into the United States is not subject to a deportation proceeding.
(4) Pursuant to
In a decision dated August 29, 1979, the immigration judge found the applicant excludable under section 212(a)(20) of the Immigration and Nationality Act,
The applicant is a 20-year-old native and citizen of Iran. He was admitted to the United States on March 24, 1978, as a nonimmigrant student to attend the University of Tennessee. On or about January 5, 1979, the applicant moved from Tennessee to Los Angeles, California,
On August 12, 1979, the applicant and some friends visited Tijuana, Mexico. In attempting to return to the United States, the applicant was refused admission by an immigration officer in San Ysidro, California, for presenting a student visa when employed full time as a machinist. The immigration officer cancelled the applicant‘s student visa, finding that he was no longer a bona fide nonimmigrant student.1 The applicant testified that he was told to go back to the American Consulate in Mexico and obtain another visa (Tr. p. 16). Apparently, the Consul refused the applicant‘s request. An exclusion hearing was held on August 29, 1979, in San Ysidro, California.
On appeal, the applicant, through his attorney of record, argues that 1) the decision of the immigration judge, denying the applicant entry into the United States and finding him excludable and deportable, was arbitrary and capricious in that the applicant was admissible and entry should have been granted by the immigration judge in exercise of his administrative discretion; 2) should there have been a question as to the applicant‘s student visa, the applicant should have been paroled into the United States and set up for a deportation proceeding in that the applicant‘s departure was brief, innocent, and casual under Rosenberg v. Fleuti, 374 U.S. 449 (1963); 3) the applicant should have been paroled into the United States in order to apply for political asylum in that the applicant would be willing to demonstrate his unwillingness to return to Iran because of the current unsettled conditions there; and 4) the applicant should have been allowed to submit an application for political asylum at the exclusion proceeding as provided in the new amendments to the Code of Federal Regulations.
An immigration judge‘s authority in exclusion proceedings is set forth as follows in
In determining cases referred for further inquiry as provided in section 235 of the Act, immigration judges shall have the powers and authority conferred upon them by the Act and this chapter. Subject to any specific limitation prescribed by the Act and this chapter, immigration judges shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases. (Emphasis added.)
A “nonimmigrant student” is defined by the Act as an alien having a
Pursuant to
At the time the applicant applied for admission to return to the United States, he was working full time in Los Angeles (Tr. p. 10). He testified at the exclusion proceeding that although he never intended to leave school, he did so in order to support himself as of January 1, 1979, when he failed to receive money from Iran (Tr. p. 17, 18). He admitted that he never went to the Service to seek permission to work at any time (Tr. p. 7). On August 12, 1979, he attempted to return to the United States to a full-time job by presenting a student visa. Inasmuch as the applicant was without a valid visa as required by section 212(a)(20), the immigration officer cancelled the visa pursuant to the applicant‘s withdrawal of his application for admission.2
Insofar as the applicant‘s contention that the immigration judge failed to comply with Commissioner Castillo‘s memorandum of March 1, 1979, instructing all field offices to give sympathetic consideration to all Iranian students, we find that the instruction does not preclude the immigration judge from disposing of an exclusion case in a manner which he feels is appropriate.3
In response to the applicant‘s second argument, the District Director has exclusive jurisdiction to parole an alien into the United States pursuant to
In the alternative, even if the applicant had been paroled, he would not necessarily have been “set up for a deportation hearing” or admissible under the ”Fleuti doctrine“, as the applicant would have us believe. An alien may be paroled into the United States temporarily pending a final determination of admissibility in accordance with
The applicant, a nonimmigrant student returning from a two-hour visit in Mexico, was not an alien lawfully admitted for permanent residence returning to an unrelinquished domicile, or a person whose deportation would have resulted in extreme hardship to himself, his spouse, or child who is a citizen of the United States. See generally Rosenberg v. Fleuti, supra; Wadman v. INS, 329 F.2d 812 (9 Cir. 1964).
In response to the applicant‘s third and fourth arguments,
We are in complete agreement with the immigration judge‘s findings. Accordingly, the appeal will be dismissed.
ORDER
The appeal is dismissed.
DISSENTING OPINION: Ralph Farb, Board Member
I dissent from so much of the Board‘s decision as holds that the applicant may not prosecute his application for political asylum in this exclusion proceeding. I agree that he is not admissible as a returning nonimmigrant student following his two-hour departure to Mexico because he lost that status by dropping out of school and by taking unauthorized employment in the United States. Accordingly, it is correct to declare him excludable as an immigrant without an immigrant visa.
The regulations have not been interpreted reasonably and correctly in accordance with fairness and their, to me, manifest purpose. I would remand this case to the immigration judge with a direction to entertain an asylum application.