Chong Shin Chen v. Ashcroft
| Decision Date | 10 August 2004 |
| Docket Number | No. 02-73473.,02-73473. |
| Citation | 378 F.3d 1081 |
| Parties | CHONG SHIN CHEN, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan Sampson, San Francisco, CA, for the petitioner.
Ethan B. Kanter and Regina Byrd, United States Department of Justice, Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before WALLACE, KOZINSKI, and THOMAS, Circuit Judges.
In this petition for review, we consider whether the summary affirmance of an Immigration Judge's ("IJ") decision by the Board of Immigration Appeals ("BIA") violated the BIA's streamlining regulations. We conclude that because the legal issue presented was not squarely controlled by existing BIA or federal court precedent, the BIA erred in summarily affirming the IJ's decision. We grant the petition for review and remand the petition to the BIA.
Chong Shin Chen, a native and citizen of the People's Republic of China, entered the United States without inspection on December 15, 1989. A day later, he was taken into custody by the Immigration and Naturalization Service ("INS"), served with an Order to Show Cause charging that he was deportable from the United States, and released on bond. His case was administratively closed when he did not show up for a scheduled hearing.
In August 1990, William S. Slattery, District Director of the INS, informed Chen by letter that the Attorney General had granted Chen "deferred enforced departure" status pursuant to Executive Order 12,711 until January 1, 1994. The communication also apprised Chen that: "You have the right to apply for any immigration benefit for which you believe you may be eligible even though you are in this program."
Executive Order 12,711, under which Chen was granted deferred enforced departure status, was issued by President George H.W. Bush on April 11, 1990, in the wake of the Tiananmen Square uprising in Beijing, China. It provided:
By the authority vested in me as President by the Constitution and laws of the United States of America, the Attorney General and the Secretary of State are hereby ordered to exercise their authority, including that under the Immigration and Nationality Act (8 U.S.C. 1101-1557), as follows:
Section 1. The Attorney General is directed to take any steps necessary to defer until January 1, 1994, the enforced departure of all nationals of the People's Republic of China (PRC) and their dependents who were in the United States on or after June 5, 1989, up to and including the date of this order (hereinafter "such PRC nationals").
Sec. 2. The Secretary of State and the Attorney General are directed to take all steps necessary with respect to such PRC nationals (a) to waive through January 1, 1994, the requirement of a valid passport and (b) to process and provide necessary documents, both within the United States and at U.S. consulates overseas, to facilitate travel across the borders of other nations and reentry into the United States in the same status such PRC nationals had upon departure.
Sec. 3. The Secretary of State and the Attorney General are directed to provide the following protections: (a) irrevocable waiver of the 2-year home country residence requirement that may be exercised until January 1, 1994, for such PRC nationals; (b) maintenance of lawful status for purposes of adjustment of status or change of nonimmigrant status for such PRC nationals who were in lawful status at any time on or after June 5, 1989, up to and including the date of this order; (c) authorization for employment of such PRC nationals through January 1, 1994; and (d) notice of expiration of nonimmigrant status (if applicable) rather than the institution of deportation proceedings, and explanation of options available for such PRC nationals eligible for deferral of enforced departure whose nonimmigrant status has expired.
Sec. 4. The Secretary of State and the Attorney General are directed to provide for enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country's policy of forced abortion or coerced sterilization, as implemented by the Attorney General's regulation effective January 29, 1990.
Sec. 5. The Attorney General is directed to ensure that the Immigration and Naturalization Service finalizes and makes public its position on the issue of training for individuals in F-1 visa status and on the issue of reinstatement into lawful nonimmigrant status of such PRC nationals who have withdrawn their applications for asylum.
Sec. 6. The Departments of Justice and State are directed to consider other steps to assist such PRC nationals in their efforts to utilize the protections that I have extended pursuant to this order.
Sec. 7. This order shall be effective immediately.
The effect of the Executive Order was, under the authority of the President, to suspend the enforced departure until January 1, 1994 of any People's Republic of China national who was in the United States. In furtherance of the policy concerns underlying the Executive Order, Congress enacted the Chinese Student Protection Act of 1992 ("CSPA"), 8 U.S.C § 1255, which altered permanently the standard adjustment of status process for Chinese nationals who met the statute's requirements. In September 1993, Chen filed a timely application with the INS for adjustment of status under the CSPA. His application was denied on the ground that he entered the United States without inspection, and was therefore inadmissible under INA section 245(a). In his deportation hearing, he argued that he was in fact admissible under section 245(a) because he had been effectively paroled into the country by having had his enforced departure deferred. The IJ disagreed and pretermitted his application for adjustment of status, but granted him voluntary departure. On appeal to the BIA, he renewed this argument, and also argued that he was eligible to apply for adjustment of status under section 245(I). The BIA summarily affirmed pursuant 8 C.F.R. § 3.1(a)(7) (now located at 8 C.F.R. § 1003.1(a)(7)). Chen timely filed this petition for review.
Chen raises a novel question that has not been addressed by the BIA or this Court. He argues that the source of the President's power to issue Executive Order 12,711 could only derive from the power to grant parole. Thus, Chen reasons, a grant of deferred enforced departure status must be construed as a grant of parole, which would make Chen eligible for adjustment of status under the CSPA.
Chen's argument has support in BIA precedent. In Matter of O, 16 I. & N. Dec. 344 (1977), the BIA considered the status of 126 aliens who were brought to the United States as part of the evacuation of Vietnam and sought admission to the United States. Id. at 345. The INS contended that the aliens had not been paroled into the United States, but rather, their inspection had been deferred. Therefore, the INS contended, they could not be admitted to the United States because they had entered without inspection. Id. at 348.
In reviewing the claims, the BIA conducted a careful statutory analysis and concluded that the only legal authority for allowing the aliens to stay in the United States was the advance parole authority contained in section 212(d) of the Immigration and Naturalization Act ("INA"), which provides:
The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien 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.
In determining the legal basis for the aliens' presence in the United States, the BIA noted:
We are unaware of, and the Service had not provided us, any authority making lawful for the Government to bring these aliens into the United States other than the parole authority granted the Attorney General under section 212(d) of the Act.
Matter of O, 16 I. & N. at 348.
Accordingly, the BIA held that the applicants had been paroled into the United States and could not be treated as liens who had entered the country without inspection.
Chen argues that his situation is indistinguishable because the Executive Order provided temporary legal harborage in the United States, and the only possible source of such authority is the parole provisions of the INA. He argues that his release on bond upon entry into the United States was based on the same considerations as those in Matter of O, and that the Executive Order confirmed the advance parole status. Therefore, he reasons, the IJ erred in denying his application solely on the basis that he was in the United States illegally, and the BIA erred in affirming summarily.
To address a burgeoning caseload and a growing adjudicatory delay, the INS promulgated regulations in 1999 to "streamline" administrative appeals. See Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed.Reg. 56,135 at 56,135-36 (Oct. 18, 1999). Prior to adoption of the streamlining regulations, a three judge BIA panel would review an IJ's decision. The streamlining regulations authorized a single BIA member to affirm the IJ's decision without opinion if:
the Board Member determines that the result ... was correct; that any errors ... were harmless or nonmaterial; and that (A) the issue on...
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