Espinoza-Gutierrez v. Smith

• Decision Date: 03 September 1996
• Docket Number: ESPINOZA-GUTIERRE,P,No. 95-35409,95-35409
• Citation: 94 F.3d 1270
• Parties: , 96 Cal. Daily Op. Serv. 6547, 96 Daily Journal D.A.R. 10,779 Gabrieletitioner-Appellant, v. Richard C. SMITH, District Director, Immigration and Naturalization Service, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1270

94 F.3d 1270

65 USLW 2161, 96 Cal. Daily Op. Serv. 6547,

96 Daily Journal D.A.R. 10,779

Gabriel ESPINOZA-GUTIERREZ, Petitioner-Appellant, v. Richard C. SMITH, District Director, Immigration and Naturalization Service, Respondent-Appellee.

No. 95-35409.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1996.

Decided Sept. 3, 1996.

Eric Bakken, Dan P. Danilov, and Mark B. Nerheim, on the brief, Seattle, Washington, for petitioner-appellant.

Donald E. Keener, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington, William L. Dwyer, District Judge, Presiding. D.C. No. CV-94-01681-WLD.

Before: WRIGHT, PREGERSON and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

Petitioner Gabriel Espinoza-Gutierrez ("Espinoza"), an applicant for legalization under 8 U.S.C. § 1255a, appeals the denial of his petition for a writ of habeas corpus. Espinoza was put into exclusion proceedings while attempting to return from a four-day trip to Mexico because he had not received advance parole from the Immigration and Naturalization Service ("INS") prior to his departure. The district court had jurisdiction under 8 U.S.C. § 1105a(b). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we reverse and remand. Petitioner also appeals the district court's determination that it had no jurisdiction to review the denial of his legalization application. We affirm that ruling.

The first issue on appeal is whether Espinoza's return without advance parole constituted an "entry" into this country within the meaning of the Immigration and Nationality Act ("INA"), 8 U.S.C § 1101(a)(13). To decide this question, we must determine whether the "brief, casual, and innocent" language of 8 U.S.C. § 1255a(a)(3)(B) applies to legalization applicants stopped at the border. We conclude that under the INS's permissible construction of the statute, § 1255a(a)(3)(B) does operate as a border-control mechanism. We further conclude that INS regulations requiring advance parole conflict with the historical meaning and application of the "brief, casual, and innocent departure" doctrine and are, therefore, invalid. See 8 C.F.R. §§ 245a.2(l)(2) & (m)(1).

FACTS

Espinoza is a 32-year old native and citizen of Mexico, who entered the United States illegally in 1973. Since that time, he has resided continuously in Yakima Valley, Washington. In 1988, Espinoza applied for legalization under 8 U.S.C. § 1255a. Espinoza's legalization application was initially denied, and he filed appeals with the proper administrative authorities.

His application was on appeal to the Legalization Appeals Unit ("LAU"), in May, 1993, when he flew to Guadalajara, Mexico, to check on some property for his parents. He did not inform or request permission from the INS prior to his departure. Upon his return from Mexico four days after his departure, an immigration inspector at Houston Espinoza thereafter filed a petition for a writ of habeas corpus. In seeking the writ, Espinoza abandoned the arguments pursued in front of the IJ and BIA. For the first time, Espinoza argued that the INS had erroneously instituted exclusion proceedings against him because he did not "enter" the country, as his absence from the United States was "brief, casual, and innocent." After filing his opening brief in the district court, the LAU denied Espinoza's legalization appeal. In his reply brief, Espinoza also asked the district court to review the merits of the LAU decision.

International Airport determined that Espinoza did not possess documents that would allow his entry into the United States, and placed him into exclusion proceedings. Both the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") rejected Espinoza's argument that he could not be placed into exclusion proceedings while his legalization application was pending.

The district court concluded that the "brief, casual, and innocent" exception to the entry doctrine does not apply to legalization applicants stopped at the border and, therefore, denied the writ. The district court also determined that it did not have jurisdiction to review the LAU decision.

DISCUSSION

I. Statutory Overview

Because this case involves various immigration statutes, INS regulations interpreting and applying those statutes and case law, a brief overview of the law is necessary before analyzing the parties' arguments.

A. IRCA and the Regulations

In 1986, Congress passed the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, reprinted in 1986 U.S.C.C.A.N. 5649 (100 Stat. 3359). IRCA established a statutory scheme allowing unlawful aliens who had been residing continuously in the United States since January 1, 1982, to apply for legalization. 8 U.S.C. § 1255a. To qualify, an applicant must satisfy four requirements: (1) timely application; (2) continuous unlawful residence since 1982; (3) continuous physical presence since November 6, 1986; and (4) admissibility as an immigrant. 8 U.S.C. § 1255a(a). Applicants meeting these requirements are granted temporary lawful status and, eventually, permanent lawful status. 8 U.S.C. § 1255a(a) & (b).

The continuous physical presence requirement of § 1255a(a)(3) is qualified by subsection (B), which provides: "An alien shall not be considered to have failed to maintain continuous physical presence in the United States ... by virtue of brief, casual, and innocent absences from the United States." 8 U.S.C. § 1255a(a)(3)(B). The INS defines a "brief, casual, and innocent" absence as "a departure authorized by the Service (advance parole) ... of not more than thirty (30) days for legitimate emergency or humanitarian purposes ... or a departure ... beyond the alien's control." 8 C.F.R. § 245a.2(l)(2). According to the regulations, legalization applicants must have received advance parole from the INS to be readmitted to the country. 8 C.F.R. § 245a.2(m)(1). ¹

B. The Fleuti Doctrine

The "brief, casual, and innocent" language of § 1255a(a)(3)(B) is a direct descendant of the Supreme Court's decision in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). Fleuti held that a permanent lawful alien resident did not "enter" the country after a "brief, casual, and innocent" absence from the United States. Id. at 462, 83 S.Ct. at 1812. In practice, courts balance the length of the trip, its purpose, and the presence of travel documents to determine whether an absence was "brief, casual, and innocent." Jubilado v. United States, 819 F.2d 210, 212 (9th Cir.1987).

Aside from the Fleuti doctrine exception, every alien who comes into the United States is deemed to be "entering," and is subject to inspection and must meet admission requirements. 8 U.S.C. §§ 1101(a)(13) & 1181(a). Entering aliens who do not meet admission requirements must be excluded from admission to the United States. 8 U.S.C. § 1182(a). ²

Exclusion proceedings can only be instituted against aliens who are "entering" the country. Landon v. Plasencia, 459 U.S. 21, 28, 103 S.Ct. 321, 326-27, 74 L.Ed.2d 21 (1982). Thus, aliens who do not "enter" the country within the meaning of the INA cannot be excluded from the country.

II. Exhaustion of Remedies

Although Espinoza's entire argument on this petition is that he did not "enter" the country, and thus cannot be excluded, he did not raise this argument before the IJ or BIA. Ordinarily, we cannot review an order of exclusion "if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws...." 8 U.S.C. § 1105a(c). Typically, a failure to raise an issue below "constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter." Vargas v. United States Dept. of Immigration and Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987) (citing Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982)). Thus, we must first consider whether we have jurisdiction to consider the merits of Espinoza's appeal. We review questions of subject matter jurisdiction de novo. Xiao v. Barr, 979 F.2d 151, 153 (9th Cir.1992).

In Landon, the Supreme Court held that the determination of whether a petitioner is entering the country is an issue that should be decided in an exclusion hearing by an IJ. 459 U.S. at 31, 103 S.Ct. at 328. This circuit has interpreted Landon to mean that IJs have the authority to determine their own jurisdiction. Castillo-Magallon v. INS, 729 F.2d 1227, 1228-29 (9th Cir.1984). "Since habeas corpus review of an order of exclusion is permitted under section 1105a(c) only following exhaustion of administrative remedies, it follows from section 1105a and Castillo-Magallon, that the question of jurisdiction must first be litigated in the exclusion proceedings themselves." Xiao, 979 F.2d at 155. As claimants are required to raise the entry doctrine to an IJ, Espinoza's failure to do so is fatal, unless an exception to the exhaustion doctrine applies.

We have long held the exhaustion doctrine does not bar review of questions involving the constitutionality of INA statutes and regulations because the BIA has no jurisdiction over those issues. See, e.g., Liu v. Waters, 55 F.3d 421, 425 (9th Cir.1995); Hernandez-Rivera v. INS, 630 F.2d 1352, 1355 (9th Cir.1980). Applying this same reasoning, we hold today that the exhaustion doctrine does not bar review of a question concerning the validity of an INS regulation because of conflict with a statute.

The INS must follow its own regulations. Bui v. INS, 76 F.3d 268, 269 (9th Cir.1996). Accordingly, had Espinoza argued below that the regulations requiring advance parole conflict with § 1255a(a)(3)(B), the argument would necessarily have fallen on deaf ears. The BIA simply...