Ali v. Reno

• Decision Date: 18 April 1994
• Docket Number: D,No. 853,853
• Citation: 22 F.3d 442
• Parties: Omar Ahmed ALI, also known as Omar Abdel Rahman, also known as Omar Abdel Rachman, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States, Respondent-Appellee. ocket 93-2553.
• Court: U.S. Court of Appeals — Second Circuit

Page 442

22 F.3d 442

Omar Ahmed ALI, also known as Omar Abdel Rahman, also known

as Omar Abdel Rachman, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States,

Respondent-Appellee.

No. 853, Docket 93-2553.

United States Court of Appeals, Second Circuit.

Argued Jan. 11, 1994.

Decided April 18, 1994.

Barbara A. Nelson, New York City (Nelson & Turkhud, of counsel), for petitioner-appellant.

Gabriel W. Gorenstein, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for the Southern Dist. of New York, Claude M. Millman, Diogenes P. Kekatos, Asst. U.S. Attys., of counsel), for respondent-appellee.

Before: MINER and MAHONEY, Circuit Judges, and RESTANI, Court of International Trade Judge. ^*

RESTANI, Judge:

Petitioner-Appellant Omar Ahmed Ali ("appellant") filed two petitions for writ of habeas corpus in the United States District Court for the Southern District of New York on July 9 and 12, 1993. His first petition alleged that his parole from the custody of the Immigration and Naturalization Service ("INS") pending a final determination of excludability was improperly revoked without a

                hearing. 1  Appellant argued in the second petition that the rescission of his status as a permanent resident of the United States and his subsequent exclusion from the country violated statutory and regulatory procedures, as well as his constitutional rights.  The district court denied both petitions.  Ali v. Reno, 829 F.Supp. 1415, 1437 (S.D.N.Y.1993).  We affirm
                

BACKGROUND

Appellant, an Egyptian citizen, is a blind Islamic cleric in his mid-fifties. He was granted permanent residence in the United States as a minister of religion on April 8, 1991. In June 1991, appellant went on a religious pilgrimage to Saudi Arabia, returning to the United States on July 31, 1991. INS permitted appellant to enter the country on a contingent basis, i.e., "paroled" him, pending the completion of INS' inspection. See 8 C.F.R. Sec. 235.3(c) (1991) ("Any alien [with documents] who appears to the inspecting officer to be inadmissible ... may be detained, paroled, or paroled for deferred inspection....").

In January 1992, while appellant's inspection was still pending, a district director of the INS notified appellant of INS' intent to rescind his status as a permanent resident. The notification alleged that at the time appellant obtained permanent resident status, he should have been excluded from the United States on the grounds that he: 1) practiced polygamy; 2) was convicted of falsifying a check, which constitutes a crime of moral turpitude; and 3) misrepresented material facts regarding his marital and criminal background on his application for permanent residence.

Appellant replied by letter on January 17, 1992, asking for 60 days to respond to the INS notice and requesting copies of documentation supporting INS' allegations. On March 6, 1992, based on the lack of formal response, the district director rescinded appellant's status as a permanent resident. Appellant was then notified that exclusion proceedings would soon be commenced.

At an exclusion hearing on May 14, 1992, appellant conceded that 1) he was properly in exclusion proceedings; 2) he was excludable as an immigrant not in possession of a valid visa or other documentation permitting entry; and 3) he failed to file a proper answer to the notice of intent to rescind his status as a permanent resident. Ali, 829 F.Supp. at 1421. Appellant then applied for political asylum and withholding of deportation based on his fears of persecution by the Egyptian government.

Upon request by the immigration judge considering the asylum application, the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State issued confidential and non-confidential reports of appellant's activities. The non-confidential report characterized appellant as the leader of an Islamic fundamentalist terrorist organization responsible for the assassinations of former Egyptian president Anwar Sadat and other high-level political leaders of Egypt. The Department of State recommended that appellant's application for political asylum be denied.

On March 16, 1993, the immigration judge found appellant to be excludable from the United States and denied the request for asylum. The immigration judge refused to review the district director's decision to rescind appellant's permanent resident status on the ground that he lacked jurisdiction. Based on the outcome of the proceedings, INS revoked appellant's parole status on July 2, 1993. The Board of Immigration Appeals upheld the immigration judge's decision and issued a final order of exclusion on July 9, 1993. The appeal of the district court's denial of appellant's petitions for writ of habeas corpus is now before us.

DISCUSSION

This case presents questions of the interpretation of the Immigration and Nationality Act ("the Act") and the INS regulations promulgated pursuant to the Act. Where there is no ambiguity in the statute, the plain language controls. Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Lingering ambiguities in a statute concerning the forfeiture of residence in this country should be resolved in favor of the alien. See INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987) (construing deportation statute); INS v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 480, 17 L.Ed.2d 318 (1966) (same); Vargas v. INS, 938 F.2d 358, 363 (2d Cir.1991) (same). On the other hand, a court will accord substantial deference to an agency's construction of regulations promulgated pursuant to a statutory scheme entrusted to the agency's administration. Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341-42, 90 L.Ed.2d 921 (1986); Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82.

A. Rescission Proceedings

The Act provides that

[i]f, at any time within five years after the status of a person has been otherwise adjusted ... to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status ... and the person shall thereupon be subject to all provisions of this chapter to the same extent as if the adjustment of status had not been made.

8 U.S.C. Sec. 1256(a) (1988). An alien applying for permanent residence under Sec. 245 of the Act must be eligible for an immigrant visa. Id. Sec. 1255(a) (1988). The Act specifies certain categories of ineligible persons, including polygamists, persons convicted of crimes of moral turpitude, and persons who have procured a benefit under the immigration laws by means of fraud or willful misrepresentation. 8 U.S.C. Sec. 1182(a)(9), (11), (19) (1988) (current version at 8 U.S.C. Sec. 1182(a)(2)(A), (6)(C), (9)(A) (Supp. IV 1992)).

The regulations provide that INS must commence rescission proceedings by serving a notice of intention to rescind containing specific allegations against the resident alien. 8 C.F.R. Sec. 246.1 (1992). The notice must also inform the alien of the right to submit within thirty days an answer under oath rebutting the allegations or a request for a hearing. Id. Moreover,

if no answer is filed within the thirty-day period, or if no hearing is requested within such period, ... the district director shall rescind the adjustment of status previously granted, and no appeal shall lie from his decision.

Id. Sec. 246.2 (1992). If the alien either files an answer or requests a hearing, a hearing will be held. Id. Sec. 246.3 (1992).

In January 1992, within five years of granting appellant permanent residency, INS sent appellant a notice of intention to rescind his permanent resident status. The notice alleged that appellant was a polygamist convicted of crimes of moral turpitude who had made misrepresentations on his application for permanent residence. The notice also informed appellant of his right to submit an answer stating the reasons why rescission should not be made, as well as his right to request a hearing.

On January 17, 1992, appellant's counsel replied by letter requesting an extension of time and the production of documents. An attorney subsequently retained by appellant conceded before the immigration judge that a proper answer had not been filed within the time allotted. Appellant is bound by this admission. In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986) ("Absent egregious circumstances, a distinct and formal admission made before, during, or even after a proceeding by an attorney acting in his professional capacity binds his client as a judicial admission.").

Appellant nonetheless attempts to characterize the January 17 letter as an implied request for a hearing. He argues that the regulations do not require that a specific request for a hearing be made, only that the alien put INS on notice that the matter is contested. Contrary to appellant's contentions, the regulations state clearly that "if no answer is filed ... or if no hearing is requested ... the district director shall rescind" permanent resident status. 8 C.F.R. Sec. 246.2. Moreover, the January 17 letter Under the regulations, "no appeal shall lie" from the district director's decision to rescind where an alien does not respond in the proper manner. Id. Furthermore, the statute provides that after rescission, an alien will be treated as if no adjustment to permanent resident status had ever been made. 8 U.S.C. Sec. 1256(a). Therefore, the immigration judge properly refused to review the decision to rescind in the context of exclusion proceedings on the ground that he lacked jurisdiction.

does not put the INS on notice that the allegations were contested. A request for the extension of time and the production of documents is a procedural rather than...