Assa'Ad v. U.S. Atty. Gen.
| Decision Date | 05 June 2003 |
| Docket Number | No. 01-16153.,No. 02-13474.,01-16153.,02-13474. |
| Citation | 332 F.3d 1321 |
| Parties | Marie Therese Halim ASSA'AD, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Immigration and Naturalization Service, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Orin Briggs, Lexington, SC, for Petitioner.
Shelley R. Goad, John S. Hogan, Washington, DC, Linda S. Wendtland, Office of Immigration Lit., Washington, DC, for Respondent.
Petitions for Review of Final Orders of the Board of Immigration Appeals.
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
This case comes to us on petition for review of an order of exclusion by the Immigration and Naturalization Service ("INS"). Petitioner, Marie Therese Halim Assa'ad-Faltas ("Faltas"), argues that she was improperly placed in exclusion proceedings rather than deportation proceedings. While Faltas had an application for legalization pending under § 245A(a) of the Immigration and Nationality Act,1 8 U.S.C. § 1255a(a), she departed the United States with advance parole from the INS. Following her return, Faltas's legalization application was denied, her parole status revoked, and exclusion proceedings against her commenced. Faltas argues that her return to the United States following a brief departure while her legalization application was pending did not constitute an "entry" and did not interrupt her status or deprive her of the right to deportation proceedings, rather than exclusion proceedings.
Faltas is a native and citizen of Egypt. She entered the United States in 1979 as an exchange visitor.2 Although her authorized stay expired in May of 1982, Faltas remained in the country until September of 1983, when she departed for Egypt. Three months later, she re-entered the United States as a temporary visitor for pleasure3 authorized to stay for six months. Faltas remained in the country for nearly six years.
On June 22, 1988, Faltas filed an application for adjustment of status under INA § 245, 8 U.S.C. § 1255. She applied to have her status adjusted to that of an alien lawfully admitted for permanent residence as the unmarried daughter of a lawful permanent resident. This application was denied on October 27, 1988, for working without employment authorization4 and for failure to satisfy the admissibility requirement of INA § 245(a).5 Having been admitted as an exchange visitor in 1979, Faltas was ineligible for an immigrant visa or for permanent residence status until she either resided in Egypt for at least two years following her stay in the United States or obtained a waiver of this requirement.6
On May 4, 1988, Faltas filed an application for legalization under INA § 245A(a), 8 U.S.C. § 1255a(a). This application was denied on January 18, 1990. The denial of her application was affirmed on administrative appeal on February 17, 1992. On September 29, 1989, while Faltas's legalization application was pending, Faltas was granted advance authorization for parole. Faltas departed the United States for Canada on October 27, 1989, returning on October 29.
In June of 1992, Faltas filed another application for adjustment of status under § 245 as the unmarried daughter of a United States citizen, her mother having naturalized. The INS has no record of this application, apparently having lost it.
On November 5, 1991, the INS commenced exclusion proceedings against Faltas. She was charged with being excludable at the time she returned from her trip to Canada for lack of valid travel and entry documents. See former INA § 212(a)(20), 8 U.S.C. § 1182(a)(20) (1989).7 The immigration judge ("IJ") terminated the exclusion proceedings on December 13, 1995, finding that Faltas's 1989 departure was brief, casual, and innocent. Relying on Joshi v. INS, 720 F.2d 799 (4th Cir.1983), the IJ concluded that Faltas was entitled to deportation proceedings. The IJ also concluded that the employment authorization extended to Faltas constituted a de facto extension of her parole status. On December 20, 1996, the Board of Immigration Appeals ("BIA" or "Board") vacated the termination order. The BIA held that the regulations relied upon in Joshi pertained to applicants for adjustment of status and, regardless, that those regulations were superseded by subsequent amendment. The BIA also held that work authorization does not constitute an extension of parole status.
On remand, the IJ found Faltas excludable under INA § 212(a)(7)(A)(i)(I).8 The only relief from exclusion Faltas sought was based on her earlier applications for adjustment of status and legalization. The IJ concluded that he did not have jurisdiction to review the denials of Faltas's legalization and adjustment applications and ordered her exclusion on March 24, 1998. The BIA affirmed on August 27, 2001, and denied an application for reconsideration on January 7, 2002.
Faltas appeals the order of exclusion and the denial of reconsideration. She argues that the BIA erred in treating her as an alien seeking admission on October 29, 1989, and subjecting her to exclusion, rather than deportation, proceedings.
Because the exclusion proceedings against Faltas were commenced before April 1, 1997, and the final exclusion order was entered more than thirty days after September 30, 1996, our jurisdiction is governed by the transitional rules found in § 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009, as amended ("IIRIRA") (reprinted in 8 U.S.C.A. § 1101 (historical notes)). See Al Najjar v. Ashcroft, 257 F.3d 1262, 1276-77 (11th Cir.), reh'g, en banc, denied, 275 F.3d 1085 (2001). Under the IIRIRA transitional rules, we apply the provisions of former INA § 106, 8 U.S.C. § 1105a (1996), except for subsection (b) of that section (providing for habeas corpus review of exclusion orders), as well as INA § 242(g), 8 U.S.C. § 1252(g) (exclusive jurisdiction provision). See IIRIRA §§ 306(c)(1), 309(c)(4); Al Najjar, 257 F.3d at 1277 n. 4.
Our review is based on the administrative record. We will uphold findings of fact if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INA § 106(a)(4), 8 U.S.C. § 1105a(a)(4) (1996); Al Najjar, 257 F.3d at 1283-84. We review questions of law de novo, McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 493, 111 S.Ct. 888, 897, 112 L.Ed.2d 1005 (1991), with appropriate deference to the BIA's reasonable interpretation of the Act. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999). We will defer to the BIA's construction of the Act "if the statute is silent or ambiguous with respect to the specific issue before [us]" and the BIA's interpretation "is based on a permissible construction of the statute." Id. (quotations and citations omitted). We defer to the INS's interpretation of its own regulations unless that interpretation is "plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997) (quotation and citation omitted).
Before IIRIRA took effect, the procedure by which an alien was removed from the United States turned on the physical location of the alien.9 Aliens physically present in the United States were subject to deportation proceedings. See, e.g., former INA § 241(a), 8 U.S.C. § 1251(a) (1996) (). Aliens arriving at the border were subject to exclusion proceedings. See, e.g., former INA § 212(a), 8 U.S.C. § 1182(a) (1996) ().10
An exception to this geography-based system was parole. Congress has granted the Attorney General the discretion to
parole into the United States temporarily... any alien applying for admission to the United States, but such parole shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). The Attorney General has established regulations delegating and implementing this grant of discretion. See 8 C.F.R. § 212.5. In addition to establishing various criteria for granting parole to arriving aliens, § 212.5 allows the INS to grant advance authorization for parole to an alien who has not yet, but will, travel to the United States without a visa. 8 C.F.R. § 212.5(f). Commonly called "advance parole," this administrative device is described by the BIA as
a mechanism by which a district director can, as a humanitarian measure, advise an alien who is in this country, but who knows or fears that he will be inadmissible if he leaves and tries to return, that he can leave with assurance that he will be paroled back into the United States upon return....
In re G-A-C-, 22 I. & N. Dec. 83, 88, 1998 WL 394560 (BIA 1998) (en banc). When the conditions under which parole is granted expire or parole is otherwise revoked, the paroled alien is subject to exclusion proceedings. INA § 212(d)(5)(A), 8 U.S.C. § 212(d)(5)(A) (); 8 C.F.R. § 212.5(e)(2) (); Sale v. Haitian Ctrs. Council, 509 U.S. 155, 159, 113 S.Ct. 2549, 2552, 125 L.Ed.2d 128 (1993) (); Leng May Ma v. Barber, 357 U.S. 185, 188, 78...
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