TORRES
(2) The applicants, who no longer derive protection from the dissolved injunction in Silva v. Bell, 605 F.2d 978 (7th Cir. 1979), were properly placed in exclusion proceedings and, hence, were not entitled to apply for suspension of deportation.
BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members
The applicants appeal from the May 1, 1984, decision of the immigration judge finding them excludable from the United States, and, therefore, denying their applications for suspension of deportation pursuant to
The applicants’ excludability under
The parties stipulated that the applicants last arrived in the United States at Laredo, Texas, on November 30, 1978, and sought admission to resume their status as Silva aliens. See Silva v. Bell, 605 F.2d 978 (7th Cir. 1979), modifying Silva v. Bell, No. 76-C 4268 (N.D. Ill. Oct. 10, 1978). They did not present an immigrant visa or other document to permit their entrance as immigrants. They were paroled into the United States pursuant to section 212(d)(5) of the Act, because they had obtained advance parole from the district director in order to make a brief visit abroad.
Advance parole is a flexible humanitarian device rooted in the public interest. See
The applicants were in the United States as applicants claiming Western Hemisphere visa availability pursuant to the Silva decision, as noted above. The male applicant had entered the United States in February of 1973, as a nonimmigrant visitor for a period not to exceed 72 hours pursuant to a Nonresident Alien Mexican Border Crossing Card (Form I-186). The female applicant had also entered as a nonimmigrant visitor allowed to remain for 72 hours pursuant to a Form I-186. Neither departed. Their deportation to Mexico had been stayed pursuant to the Silva decision. In November of 1978, while their adjustment of status application was pending, the female applicant‘s father in Mexico became sick. Consequently, on November 17, 1978, they applied for, and were granted, advance parole on humanitarian grounds to visit her father and return to the United States before December 2, 1978. When they returned from Mexico on November 30, 1978, the Silva injunction was still in effect. Consequently, their exclusion proceedings were held in abeyance pending allocation of the immigrant visas made available pursuant to the Silva injunction. The propriety of exclusion proceedings is determinative in this case because the applicants seek to apply for suspension of deportation, which is a form
It is well settled that when an alien is paroled into the United States pursuant to section 212(d)(5) of the Act and
The court‘s injunction in Silva v. Bell, supra, has now been dissolved, after all available Western Hemisphere immigrant visas were allocated. See Sanchez-Escareno v. INS, 681 F.2d 1133 (9th Cir. 1982). Consequently, the applicants no longer derive any protection from the terms of the Silva court‘s injunction. The United States Court of Appeals for the Ninth Circuit has recently concluded that the Silva injunction did not exempt Silva aliens from complying with the 7 years’ continuous physical presence requirement of section 244(a)(1) of the Act, even if their departure from the United States and illegal return took place prior to the Supreme Court‘s strict interpretation of that requirement in INS v. Phinpathya, 464 U.S. 183 (1984). See Bagues-Valles v. INS, 779 F.2d 483 (9th Cir. 1985); cf. Matter of Dilla, 19 I&N Dec. 54 (BIA 1984). Nevertheless, the applicants contend that since they had submitted applications for adjustment of status as Silva aliens on September 5, 1978, and made their sojourn to Mexico pursuant to a grant of advance parole, they should be placed in deportation proceedings where they could also submit applications for suspension of deportation. In support of this contention the applicants cite the court‘s decision in Joshi v. District Director, INS, 720 F.2d 799 (4th Cir. 1983), and
The issue in both the Joshi and Patel cases involved an interpretation of
The departure of an applicant [for permanent resident status under section 245 of the Act] who is not under deportation proceedings shall be deemed an abandonment of his application constituting grounds for termination thereof unless he had previously been granted permission by the Service for such absence and he was thereafter inspected upon his return, or it is determined by the officer having jurisdiction over his application that his departure was unintended or innocent and casual, that his absence was brief, and that he was inspected upon his return. If the determination reached is favorable to the applicant, the application shall be adjudicated without regard to the departure and absence. (Emphasis added.)
The Joshi and Patel cases arose outside of the jurisdiction of the United States Court of Appeals for the Fifth Circuit, where this case arises. Consequently, the applicants seek to have us apply the holdings in those cases outside of the jurisdictions of the Fourth and Ninth Circuit Courts of Appeals.1 Moreover, the applicants request that we extrapolate the holdings in Joshi and Patel from the adjustment of status area to suspension of deportation issues. The applicants contend that they should be placed in deportation proceedings so that they may submit applications for suspension of deportation. We decline to do so for the following reasons.
First, we disagree with the analysis underlying the decisions in Joshi v. INS, supra, and Patel v. Landon, supra. Both decisions erroneously assume that an alien must be placed in deportation proceedings in order to have his application for adjustment of status properly considered. The court in Joshi v. INS, supra, at 801, relied on the Supreme Court‘s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), in interpreting the language in
A second reason for declining to adopt the Joshi and Patel courts’ interpretation of
An alien paroled into the United States pursuant to section 212(d)(5) of the Act remains subject to exclusion proceedings pursuant to sections 235 and 236 of the Act. See
A final question raised by the applicants’ appeal remains to be addressed. Attached to the applicants’ brief is a February 13, 1985, memorandum from the Service‘s Associate Commissioner and addressed to all regional commissioners, district directors, and officers in charge. The memorandum states that the Service has reversed its previous conclusions regarding holding in abeyance the applications for adjustment of status of Silva aliens pursuant to Operations Instructions 245.4(a)(6).3 It further states that such applications should now be reactivated by means of a Service motion to reopen and held in abeyance in accordance with Operations Instructions 245.4(a)(6).
Here no such motion has been submitted by the Service.4 Consequently, absent such a motion, we must proceed to dismiss the appeal since we cannot review the district director‘s decision to initiate these proceedings. See Lopez-Telles v. INS, 564 F.2d 1302 (9th Cir. 1977); Matter of Quintero, 18 I&N Dec. 348 (BIA 1982); Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Merced, 14 I&N Dec. 644 (BIA 1974); Matter of Geronimo, 13 I&N Dec. 680 (BIA 1971). It is so ordered.
ORDER: The appeal is dismissed.