Case Information
*1 Interim Decision #3282 Interim Decision #3282
In re Sukwinder SINGH, Applicant
Decided June 14, 1996
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A returning applicant for legalization under section 245A of the Immigration and Nationality
Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991), may not, by virtue of his membership in the
class action suit of
Catholic Social Services v. Meese
,
FOR IMMIGRATION AND NATURALIZATION SERVICE: Wendi Lazar, General Attorney BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG, Board Member.
DUNNE, Vice Chairman:
In a decision dated December 13, 1994, an Immigration Judge granted the applicant’s motion to terminate exclusion proceedings based upon her deci- sion that the applicant had made a brief, casual, and innocent departure from the United States. The Immigration and Naturalization Service filed a timely appeal from that decision. The appeal will be sustained and the record will be remanded to the Immigration Court.
I. PROCEDURAL HISTORY
The applicant is a native and citizen of India. The record indicates that he originally entered the United States without inspection in 1980. The appli- cant contends, and the Service does not dispute, that in 1991, the applicant applied for adjustment of status under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991). While his appli- cation was pending, the applicant departed for India without securing The applicant received representation at the hearing.
advance parole as required under 8 C.F.R. § 245a.2(m)(1) (1991). On April 15, 1994, the applicant applied for admission into the United States. The *2 record reflects that upon arrival, the applicant presented himself for inspec- tion and confessed to immigration officials that he possessed a fraudulent passport. On April 16, 1994, the Service served the applicant with a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (Form I-122), alleging that he is inadmissible due to his alleged fraud and lack of proper immigration documents.
At an exclusion hearing held October 27, 1994, the applicant requested
leave to file a motion to terminate proceedings based upon the Supreme
Court’s decision in
Rosenberg v. Fleuti
,
II. THE SERVICE’S APPEAL On appeal, the Service argues that the Immigration Judge did not have the authority to terminate the applicant’s exclusion proceedings under the Fleuti doctrine. Alternatively, the Service argues that the applicant’s departure does not fall within the ambit of Rosenberg v. Fleuti, supra . Because we agree with the Service’s initial argument, we will not analyze whether the appli- cant’s departure constituted a brief, casual, and innocent departure from the United States.
III. RELEVANT LEGAL HISTORY In order to address the Service’s appellate contentions, we must first examine the statutory and regulatory provisions regarding section 245A legalization applicants. We stress, however, that while the applicant claims entitlement to a determination due to his status as a legalization appli- cant, we have no authority to consider the applicant’s eligibility for legaliza- tion. See section 245A(f) of the Act. By statute, Congress has prevented us from even reviewing his legalization file. sections 245A(c)(4), (5) of the Act; see also 8 C.F.R. § 245a.2(t) (1995). Our jurisdiction is limited solely to the consideration of the Service’s charges of excludability.
A. Section 245A of the Act
Section 245A of the Act allows an alien to adjust his status to that of an
alien lawfully admitted for temporary residence if the alien meets certain
requirements, including, but not limited to, his continuous unlawful resi-
dence and continuous physical presence in the United States since 1982.
See
section 245A of the Act. Federal regulations further state that an alien must
apply for temporary residence “within the twelve month period beginning on
May 5, 1987, and ending on May 4, 1988.” 8 C.F.R. § 245a.2(a). Subsequent
to the institution of the legalization program, various lawsuits arose arguing
against the closing of the application period on May 4, 1988.
See, e.g., Catho-
lic Social Services v. Meese,
B. The District Court’s Injunction
More specifically, the court in Catholic Social Services v. Reno, supra , slip op. at 7, ordered that the Attorney General of the United States, her agents and employees
shall not detain, exclude or deport any subclass 1 member applicant solely because he or she
departed the United States without INS permission (advance parole) and returned after a
“brief, casual and innocent” absence. . . . Any subclass 1 members held in detention solely
Both class action suits were filed on behalf of applicants who had departed the United
States after 1982 and who thereafter appeared ineligible for legalization due to these absences
from the country. Specifically, the litigation surrounding the district court's injunction in CSS
and the Service's May 18, 1993, policy relates to 8 C.F.R. §§ 245a.2(g) and (b)(8), regarding the
"continuous unlawful residence" and "continuous physical presence" requirements necessary
to demonstrate eligibility for section 245A relief. The Supreme Court joined these two lawsuits
in
Reno v. Catholic Social Services
,
C. Service Policy Regarding Section 245A Applicants As a result of the injunction, the Service issued a memorandum on May 18, 1993, instructing its officers to cease placing into exclusion proceedings certain CSS class members who had travelled abroad without the protection of advance parole. Pursuant to the order, Service agents were also required to determine to which class action suit an alien belonged. If the alien belonged to the CSS class action suit, the agent was to determine the nature of the applicant’s departure from the United States. If the agent found the alien’s departure to be “brief, casual, and innocent” as that term has been defined *4 under the immigration laws, the Service directed the officer to parole the alien into the United States for a period of 1 year. Moreover, the directive contained the following provisions:
Effective immediately, any exclusion proceedings against a CSS class member which com- menced solely because the alien sought admission without advance parole are to be termi- nated and the alien is to be paroled into the United States. . . . However, if the alien’s absence was not brief, casual, and innocent, or if the alien is excludable under a non-waivable ground, proceedings and detention may proceed. 70 Interpreter Releases, No. 22, June 7, 1993, at 744. Lastly, the memoran- dum clearly specified that termination of exclusion proceedings upon a find- ing of brief, casual, and innocent departures should extend only to CSS class members, and not to any other 245A applicant or class litigant. Specifically, in its May 18, 1993, memorandum, the Service explained that the status of an alien seeking admission as a CSS class member may be checked through its The Ninth Circuit analyzed the phrase in section 210(d)(2)(A) of the Act, 8 U.S.C. § 1160(d)(2)(A) (1988), which provides that an alien “may not be excluded or deported.”
Central Indexing System (“CIS”), and “is indicated by the class of admission CS1.” Id. at 744.
D. Applicability to Exclusion Proceedings We have held that while such policy guidelines are not binding on the Board, we will nonetheless adopt a Service policy when appropriate. See Matter of M/V Saru Meru , 20 I&N Dec. 592 (BIA 1992); Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cazavos, 17 I&N Dec. 215 (BIA 1980). We have no authority to investigate the motivation behind the Ser- vice’s policy decisions, but we may use such policy as guidance within the context of our exclusion and deportation powers. Clearly, the Service policy included those applicants who were already in exclusion proceedings, and at the time of the Service’s release of this policy memorandum, many of these class members had filed appeals of their exclusion orders. Under these cir- cumstances, we found it appropriate to remand those cases to the Office of the Immigration Judge so that the Service could examine the status of these class members and terminate proceedings in those cases aligned with their May 18, 1993, policy memorandum. We found this to be particularly appro- priate in light of the preferential treatment afforded those applicants who had been designated CS1 class members.
Thereafter, we continued to receive appeals from aliens who claimed membership in the CSS class action suit. However, as previously noted, the statute and regulations prevent us from reviewing any information regarding the alien’s legalization application. sections 245A(c)(4), (5), (f) of the Act; see also 8 C.F.R. § 245a.2(t). The evidence needed to review such claims remained in the exclusive possession of the Service. Thus, in order to insure that the Service followed its policy in individual cases, we began to request that the Service provide a copy of that portion of its Central Indexing System which applied to the alien’s designation for class membership. We found this both appropriate and necessary in order to adjudicate the exclusion proceedings in accordance with the Service’s May 18, 1993, memorandum. However, due to the regulatory limitations on our access to such information, We recognize the fundamental rule of law that the issuance of a charging document and the institution of exclusion proceedings is within the sole jurisdiction of the Service. Moreover, the burden in exclusion proceedings is ordinarily upon the applicant to establish that he is *5 admissible to the United States. See section 291 of the Act, 8 U.S.C. § 1361 (1994); see also Matter of Nafi, 19 I&N Dec. 430 (BIA 1987); Matter of Matelot, 18 I&N Dec. 334 (BIA 1982). Admittedly, requiring the Service to produce a copy of an alien’s CIS printout runs counter to these tenets. Nonetheless, we find that to remain consistent with the Service’s May 18, 1993, examine such information in order to thoroughly review an alien’s appellate contentions. See C.F.R. § 3.1(d) (1995). As we discuss, infra , we also find it proper for the Immigration Judge to request submission of such evidence at the hearing.
431
we have not sought information regarding the methods by which the Service designates the various class members.
IV. THE APPLICANT’S EXCLUSION HEARING At the exclusion hearing, the applicant moved to terminate the proceed- ings on the ground that, due to his status as a lawful temporary resident appli- cant with a designation of subclass CS1, he should not be found excludable because his departure to India was brief, casual, and innocent. At the hearing, the Immigration Judge took testimony regarding the nature of the applicant’s departure from the United States. Specifically, the applicant testified that he originally entered the United States in 1980. He left the United States for approximately 1 month in December of 1987 and reentered without inspec- tion. He testified that in 1991, he applied for adjustment of status under sec- tion 245A of the Act. Thereafter, the applicant again departed the United States in December of 1991. He testified that he left the United States without proper documents from the Service, but that the Service told him upon his return that none were necessary due to his status as a CS1 applicant.
On October 15, 1993, the applicant again departed the United States. He inquired about advance parole, but was told by the Service, “You don’t need it, because it’s CSS-1.” The applicant indicated that he left on October 15, 1993, because he received word that his family had been imprisoned. He indicated that Indian officials confiscated his immigration documents and placed him in jail for approximately 4 months due to his work with the All India Sikh Student Federation. He testified that he obtained a valid Indian passport prior to his return to the United States, and that he placed his picture into the passport. Upon returning to the United States on April 15, 1994, the applicant handed his passport to an immigration official and told him that it was invalid.
V. LEGAL ANALYSIS Current regulations state that an alien who has a temporary residence application pending “can only be readmitted to the United States provided his or her departure was authorized under the Service’s advance parole provi- sions.” 8 C.F.R. § 245a.2(m)(1). 6 The applicant testified that he did not Notwithstanding the Service’s policy memorandum and the district court’s injunction, we also note that the propriety of the actual regulation regarding the applicant’s excludability has not been litigated. As an initial matter, it appears that 8 C.F.R. § 245a.2(m)(1) does not authorize the readmission of those aliens who did not procure advance parole prior to their departure from the United States. A pending temporary residence application originates on the date that an alien's application establishing prima facie eligibility for temporary status is reviewed at a Service Legalization Office. 8 C.F.R. § 245a.2(m)(1). While the record contains no information regarding the applicant's legalization application, the Service has not disputed that such an application is pending.
Interim Decision #3282 request advance parole prior to his departure from the United States. Inas- much as he did not have any other form of entry document, we find that the applicant properly belongs in exclusion proceedings.
However, the applicant claims, and the Service does not dispute, that the applicant has demonstrated evidence of CSS class membership eligibility, and has received a CS1 designation in the Service’s Central Indexing System. The Service’s May 18, 1993, policy memorandum indicates that, notwith- standing the applicant’s lack of entry documents, he may therefore be paroled into the United States for a period of 1 year if his departure is determined to be “brief, casual, and innocent.” The question before us is whether an Immi- gration Judge has the authority to make such a determination. We find that the Immigration Judges and this Board do not have such authority.
Section 245A of the Act allows for a single level of administrative review from adverse legalization decisions. See section 245A(f) of the Act. Federal regulations state that aliens may appeal their decisions to the Administrative Appeals Unit (“AAU”) of the Service. 8 C.F.R. § 245a.2(p). Clearly, we have no jurisdiction over the applicant’s legalization application. However, we must determine if and how his CS1 legalization status affects his exclu- sion proceedings.
At the outset, we note the sympathetic posture of the applicant’s case. The applicant clearly departed the country under exigent circumstances. How- ever, we must find that we are unable to consider the nature of the applicant’s departure. We simply find no authority by which the Immigration Judge or this Board may apply the doctrine to the applicant’s attempted entry.
In Matter of Quintero , 18 I&N Dec. 348 (BIA 1982), we held that the authority for a grant of deferred action status rests solely in the district direc- tor’s prosecutorial discretion and that, therefore, neither the Immigration Judge nor the Board may grant such status or review a decision of the district director to deny it. We find this holding applicable to the instant case, inas- much as the Service’s ability to grant deferred action status may be found only in the Service’s Operations Instructions. See O.I. 103.1(a)(1)(ii). Such authority is mentioned nowhere in the statute or the regulations, but is simply the result of an administrative policy to give low priority to the enforcement of the immigration laws in certain cases. Like the Service’s deferred action status authority, the directive of the Service’s May 18, 1993, memorandum Although the AAU's decision is the final agency action on the application, a legalization applicant has a "latent" right to judicial review. See Reno v. Catholic Social Services, supra. As the Supreme Court explained, an alien whose appeal has been rejected by the AAU stands in the same position as he did before he applied: he is residing in the United States in an unlawful status, but the Service has not yet discovered his presence. section 245A(c)(5) of the Act. Therefore, an AAU denial does not automatically trigger a deportation proceeding; rather, the alien must either surrender or wait for the Service to find him. After a deportation hearing has been conducted and an order has been issued, the alien may then challenge his legalization denial in a circuit court of appeals. See generally section 105 of the Act, 8 U.S.C. § 1105 (1994).
exists solely as an internal guideline of the Service. It does not confer sub- stantive rights on an excludable class member which he may litigate in exclu- sion proceedings. The Act and regulations consistently limit the Immigration Court’s jurisdiction over legalization proceedings, and we find no affirma- *7 tive authority to either determine or review the Service’s decision regarding the nature of the applicant’s departure.
Moreover, we find that the substance of the Service policy itself clearly grants a remedy beyond the scope of our jurisdiction. The Service’s May 18, 1993, memorandum allows for an alien to be paroled into the United States for a period of 1 year. The district director has exclusive jurisdiction to parole an alien into the United States pursuant to 8 C.F.R. § 212.5(a) (1995). Again, neither the Immigration Judge nor this Board has jurisdiction to exercise parole power. Matter of Matelot, 18 I&N Dec. 334 (BIA 1982); Matter of Castellon, 17 I&N Dec. 616 (BIA 1981). Logically, our enforcement or review of the Service’s memorandum would create a class of aliens without status. The Service correctly argues in its appellate brief that the Immigration Judge’s termination of the applicant’s proceedings infringed upon the Ser- vice’s authority as vested in the district director.
VII. CONCLUSION
Ultimately, then, we find that a class member’s status has very little bear-
ing on the Immigration Judge’s consideration of his excludability, and we
find that such status creates no substantive rights which the applicant may
The United States District Court for the Southern District of New York recently issued
Fernandes v. McElroy
,
claim at his hearing. The Service’s May 18, 1993, memorandum addresses policy issues left within the scope of the Service’s prosecutorial discretion. Neither we nor the Immigration Judges may question the distinctions raised in the Service memorandum, nor may we extend our authority to substan- tively review the Service’s determination as to whether or not to initiate exclusion proceedings against a CSS class member. While we will continue to request that the Service provide a copy of the applicant’s CIS sheet in those cases in which the Immigration Judge or this Board deems it necessary, we otherwise find a class member’s status, and the nature of his departure from the United States, beyond our authority to question. Those decisions lie solely in the jurisdiction of the Service.
In the applicant’s case, we must find that the Immigration Judge erred by employing the doctrine and by subsequently terminating the appli- cant’s exclusion proceedings. The Service clearly determined that the appli- cant’s departure did not entitle him to a grant of parole upon his return; it therefore chose to institute exclusion proceedings. As long as the Service *8 chooses to prosecute the applicant’s proceedings to a conclusion, the Immi- gration Judges and this Board must order the applicant excluded and deported if the evidence supports such a finding. Matter of Yazdani , 17 I&N Dec. 626 (BIA 1981). The Service’s policy memorandum grants neither the Immigration Judges nor this Board authority to do otherwise.
Accordingly, we will remand the record to the Immigration Judge for a determination of the applicant’s admissibility.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing decision.
Chairman Paul W. Schmidt and Board Member Lauri S. Filppu did not participate in the decision in this case.
CONCURRING IN PART AND DISSENTING IN PART: Lory D. Rosenberg Board Member
I respectfully concur in part and dissent in part.
I do not take issue with the reasoning of the majority that the applicant’s
eligibility for legalization benefits as a class member in
Catholic Social Ser-
vices v. Meese,
After living here for 16 years and applying for legalization, the applicant before us left the United States on this particular occasion for family reasons. Eligible to apply for both legalization and suspension of deportation when he departed, he returned to this country and was deemed ineligible for admission by the Immigration and Naturalization Service. Upon my review of the record, and my own reading of the Immigration and Nationality Act and per- tinent case law, I conclude that the Immigration Judge correctly analyzed the circumstances of the applicant’s departure from the United States, and I share her conclusion that the applicant’s trip was brief, casual, and innocent, and did not meaningfully interrupt his presence in this country. Accordingly, upon his return from India, the applicant was not required to seek admission and was improperly placed in exclusion proceedings.
I. THE STATUTE REQUIRES IMMIGRATION JUDGES AND THIS BOARD ALIKE TO ADDRESS BRIEF, CASUAL, AND
INNOCENT ABSENCES UNDER SECTION 245A
In the Immigration Reform and Control Act of 1986, Pub L. No. 99-603,
100 Stat. 3359, 3394, (“IRCA”) Congress created the legalization program
under which aliens long present in the United States could regularize their
immigration status. Congress provided that a legalization candidate who
makes a brief, casual, and innocent trip outside the United States does not
interrupt the required period of continuous physical presence. sections
245A(a)(3)(A), (B) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1255a(a)(3)(A), (B) (1994). Thus, Congress included, within the legaliza-
tion program, the underlying rationale of
Rosenberg v. Fleuti
,
Specifically, Congress added to the legalization statute, the following provision:
An alien shall not be considered to have failed to maintained [sic] continuous physical pres- ence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and innocent absences from the United States. Section 245A(a)(3)(B) of the Act.
The majority reads section 245A(a)(3)(B) of the Act narrowly, construing it to relate solely to the legalization application itself and not to the general ability of a legalization applicant to leave and return to the United States. See [1] This Board conducts a de novo review of the record. Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). In my view, a de novo review of the record is not limited only to arguments which may or may not have been framed on appeal, but requires us to review the entire record and the order appealed to this Board with respect to the governing statute and case law.
supra note 8. I believe such a narrow reading to be incorrect. While this Board may be limited in assessing an alien’s continuing eligibility for legal- ization benefits, I do not believe we are equally constrained with regard to other provisions of the Act, including an interpretation of section 245A(a)(3)(B) of the Act.
In the instant case, this Board need not examine the “brief, casual and
innocent” nature of the applicant’s trip as it relates to his continuing eligibil-
ity for legalization. However, we cannot refuse to perform this examination
as it relates to the applicant’s ability to return to the United States without
being treated as though he were seeking to enter.
See Fernandes v. McElroy,
A. The Fleuti Doctrine
In Rosenberg v. Fleuti, supra, the Supreme Court carved out an exception to the statutory definition of entry in the then-current version of section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1958), holding that a lawful permanent resident who departs the United States for a brief, casual, and innocent purpose does not meaningfully interrupt his or her period of resi- dence. The Court concluded that the alien’s return to the United States does not constitute an entry; rather, the alien’s status for all purposes should con- tinue as before the departure. In so finding, the Court hesitated to strictly define these terms, but instead left the definition to be developed “by the gradual process of judicial inclusion and exclusion.” Id. at 462.
Congress was well aware of the historic meaning of when it enacted
IRCA some 20 years later. H.R. Rep. No. 682(I), 99th Cong., 2d Sess.
116,
reprinted in
1986 U.S.C.C.A.N. 5649, 5720. We are bound to follow the
plain terms of the statute, and I would find that the traditional meaning of the
phrase “brief, casual, and innocent,” as included in IRCA, does not include a
As discussed
infra
, regulations found at 8 C.F.R. §§ 245a.2(l) and 245a.2(m) (1995)
require that a legalization applicant must secure advance parole prior to departing the United
States in order for the departure to be termed "brief, casual and innocent". The CSS litigation
and the ensuing Service policy memorandum have addressed how advance parole relates to an
alien's continuing eligibility for legalization, but other courts have considered the more
expansive question regarding whether advance parole is a valid requirement for
admission
after
*10
a brief, casual, and innocent departure. At least two courts have concluded that the advance
parole requirement constitutes an ultra vires expansion by the Service of the express statutory
requirements for continuous physical presence.
See Fernandes v. McElroy
,
B. Interpretation of Section 245A(a)(3)(B) I read section 245A(a)(3)(B) to extend the benefit of the Fleuti doctrine to legalization applicants, without reservation or limitation. As the majority notes, the United States District Court for the Southern District of New York held, in Fernandes v. McElroy, supra , that section 245A(a)(3)(B) of the Act allows for brief, casual, and innocent absences, not only in relation to the application phase, but throughout the pendency of the applicant’s legaliza- tion adjudication. See also De Olivera v. United States INS, supra, at 342 n.8. I agree. One court that has considered this issue has stated its conclusion this way:
The legalization program established by IRCA provides applicants with important rights,
and applicants for legalization clearly occupy a protected position in the United States dur-
ing the period that they are seeking an adjustment of status. Thus, the rationale for applying
the entry exception to permanent resident aliens also applies to legalization applicants who
make a brief, innocent, casual departure from the United States. Such a departure does not
subject the aliens to the consequences of an “entry” upon their return.
Campos v. Smith
,
Recently, in
Matter of Chavez-Calderon,
20 I&N Dec. 744 (BIA 1993),
this Board itself gave support for this expansive interpretation of the
Fleuti
doctrine as set forth in section 245A(a)(3)(B). Therein, we noted “a crucial
distinction” between special agricultural workers on the one hand and “aliens
eligible for adjustment under section 245A, lawful permanent residents, and
applicants for suspension of deportation on the other.”
Id.
at 748. Aliens in
the latter category, the Board observed, “possess some form of long-term res-
idence in the United States and concomitant ties to this country, a concern
which was foremost in the Supreme Court’s crafting of the doctrine.”
Id.
4 While this Board did not articulate the extent to which a legalization
Indeed, such limitation would be antithetical to the docrine itself. Properly applied, the
concept is meant to preserve the alien's predeparture status by not treating the alien's return as
262 (W.D. Wash. 1991).
, 791 F. Supp.
Campos v. Smith
,
Interim Decision #3282 applicant under section 245A of the Act is protected by the doctrine, my interpretation of section 245A(a)(3)(B) is consistent with notions of equal protection due those long-term undocumented aliens awaiting tempo- rary resident status.
I recognize that a determination by this Board on whether the applicant’s trip satisfied the “brief, casual, and innocent” standard may be binding on a subsequent assessment by the Service on whether the applicant satisfies the legalization requirement for continuous physical presence. That is the rea- son, I believe, why the majority seeks to avoid deciding this issue, asserting that this matter is wholly within the province of the Service. While I concede that some overlap will result if we exercise authority in this case, the alterna- tive is wholly unacceptable. The Service has issued no assessment whether the applicant’s trip satisfies the “brief, casual, and innocent” standard. Because the majority refuses to consider the question, the issue will go to dis- trict court without the benefit of any written assessment by the agency entrusted with administering the Act and possessed with the expertise to evaluate the effect of such departures. I believe the Act and case law allows us to employ our expertise to address these issues.
II. AN ALIEN’S DEPARTURE AND RETURN MUST BE CONSTRUED CONSISTENT WITH APPLICATIONS OF THE ENTRY DOCTRINE IN OTHER SECTIONS OF THE ACT I find support for this more expansive interpretation of section 245A(a)(3)(B) in the historic intent of the Supreme Court not only in Rosenberg v. Fleuti, supra , but in Congress’ recent amendments to other stat- utory provisions regarding the reentry doctrine. The applicant is not merely a legalization candidate. Assuming that he can show he is of good moral char- acter, that he can establish a period of continuous physical presence in the United States for more than 7 years, and that he can demonstrate extreme hardship flowing from his potential deportation to himself or to qualifying family members, he is also eligible for suspension of deportation, a separate form of statutory relief which may be granted in the exercise of discretion under section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1) (1994).
Eligibility for this form of relief from deportation was enhanced by a pro-
vision in IRCA which added section 244(b)(2) to the Act. That amendment
provides that brief, casual, and innocent absences will not interrupt a period
of continuous presence for purposes of satisfying that requirement. Thus,
the ties forged as the result of longtime residence, and holding that a former legalization
applicant may count towards the requisite period of lawful domicile years of residence
accumulated while a temporary lawful resident.
Matter of Cazares,
21 I&N Dec. 188 (BIA
1996);
see also White v. INS,
Consider for a moment the Hobson’s choice faced by a legalization appli- cant who sought to take advantage of these clear expressions of congressio- *12 nal compassion but needed to travel. If he or she obtained advance parole from the Service, pursuant to 8 C.F.R. § 245a.2(m), eligibility for legaliza- tion would be preserved. However, eligibility for suspension would be lost, because the alien who travelled pursuant to advance parole would be return- ing to the United States in “parole status” and thus would be subject to exclu- sion proceedings. Alternatively, the legalization applicant could forego advance parole (and the resulting loss of suspension eligibility) by departing “without permission” and by attempting surreptitious entry upon return. To do so, however, would be to jeopardize his or her eligibility for legalization. To read the statute as calling for such an unprecedented “election” of reme- dies, one of which encourages an implicit disregard of the immigration laws, creates a situation in which nobody wins.
Could Congress possibly have intended such a result? I think not. In
attempting to find a rational construction for these provisions, I believe it is
instructive to examine the way in which Congress handled the consequences
of a temporary departure for candidates for other forms of relief—family
unity and temporary protected status (“TPS”)—created as part of the Immi-
gration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (“IMMACT”). 7 In
response to expressions of concern that family unity and TPS status holders
who obtained advance parole as then construed by the Service could forfeit
their right to apply for other forms of relief such as suspension of deportation,
Congress enacted section 304 of the Miscellaneous and Technical
5649, 5682.
suspension of deportation. Two years later, Congress abrogated the harsh effect of this decision
by enacting section 315(b) of IRCA,
Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733, 1749. That provision stated that TPS or family-unity holders who travel under advance parole “shall be inspected and admitted in the same immigration status the alien had at the time of departure.” The provision also specifically provides that this authorized departure will not affect the require- ment of continuous physical presence for suspension of deportation if the travel meets the requirements of section 244(b)(2) of the Act. Id.
A similar result could be reached easily for suspension-eligible aliens who
are also legalization applicants by simply construing the provisions of the
statute harmoniously. IRCA explicitly intended to make legal those in our
society who previously resided here without legal documentation. Like legal-
ization, suspension of deportation is a provision enacted by Congress to pro-
vide an alternate means for long-term residents to become lawful permanent
residents.
See K Mart Corp. v. Cartier, Inc.,
It simply cannot be the case that Congress authorized two forms of relief in the same statute, only to force eligible aliens to abandon one by electing the other. Indeed, if that is the case, then the entire purpose of IRCA is frus - trated and those seeking to become part of our society legally are given a mixed message. Thus, I believe we must look to see if there is another way the suspension and legalization provisions can be reconciled.
In particular, it is unreasonable to conclude, as one might otherwise have to, that Congress
intended subsection 244(b)(2) to preserve eligibility for suspension only for those legalization
applicants who violate the Act by illegal reentry. As the Ninth Circuit recently emphasized,
“The evident statutory purpose [of subsection 244(b)(2)] is to recognize that a person who lives
for seven continuous years in the United States does not destroy his eligibility by actions that do
not affect his commitment to living in this country.”
Castrejon-Garcia v. INS
,
III. CONCLUSION
Nothing in this dissent should be read to advance the proposition that all
aliens in this country have a right to enter and depart at will, so long as their
departures are brief, casual, and innocent. As the Court of Appeals for the
Ninth Circuit has noted, while Congress has expanded the doctrine to
legalization applicants and to aliens eligible for suspension of deportation, it
did not indicate that the doctrine applies to all undocumented aliens.
See
Mendoza v. INS,
By focusing its decision exclusively on the issues pertaining to the appli- cant’s status as a legalization candidate, the majority fails to address the nut of the issue: whether or not exclusion proceedings are proper. Given Con- gress’ express intention to apply the “brief, casual, and innocent” concept to legalization and a variety of other situations, I would find the applicant’s departure not to have been meaningful, and his return not to constitute an entry within the meaning of the Act. Should the Service determine it is While originally this Board held in Matter of Torres, 19 I&N Dec. 371 (BIA 1986), that it would not extend the doctrine to aliens who had not been admitted for lawful permanent residence, I believe the prior decisions of this Board should be viewed in light of two developments: 1) the extension of the “brief, casual, and innocent” principle to contexts other than those involving the departures of lawful permanent residents; and 2) the significant statutory change to section 244 of the Act. Moreover, as noted previously, the Board has revisited this issue and arrived at a different conclusion, albeit in dicta, in Matter of Chavez-Calderon, supra.
appropriate to treat him as present in this country without authorization, or in violation of any other provision of the Act, it may pursue these or any other charges in the deportation context.