In re Farias-Mendoza
| Decision Date | 07 May 1997 |
| Docket Number | Interim Decision No. 3269.,File A92 716 636. |
| Citation | 21 I&N Dec. 269 |
| Parties | In re Rosalva FARIAS-Mendoza, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated March 14, 1995, the Immigration Judge found the respondent deportable under section 241(a)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(E)(i) (1994), for having engaged in alien-smuggling activity. However, the Immigration Judge granted the respondent's application for a waiver of deportability pursuant to section 241(a)(1)(E)(iii) of the Act. The Immigration and Naturalization Service appeals from the Immigration Judge's decision granting of this waiver. The appeal will be dismissed.
The respondent is a 26-year-old native and citizen of Mexico, who adjusted her status to that of lawful permanent resident on June 12, 1992. She was apprehended at a border patrol checkpoint upon her return to the United States from Mexico on January 11, 1993. At a deportation hearing held on July 13, 1994, the Immigration and Naturalization Service presented evidence, including a Record of Deportable Alien (Form I-213) and a Record of Apprehension, Investigation or Seizure (Form G-166), which were admitted without objection by the respondent. In addition, the Service presented testimony from the border patrol agent who prepared the Form G-166.
The respondent did not dispute that the events occurred essentially as set forth in the investigative reports and the agent's testimony. Based on the evidence submitted by the Service, the Immigration Judge concluded that the respondent's deportability had been established by clear, unequivocal, and convincing evidence. See Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1995).
The circumstances of the respondent's apprehension are as follows: The respondent and her boyfriend, who was residing illegally in the United States, traveled to Mexico in December 1992 to visit relatives. After a stay of approximately 22 days, they contacted the respondent's mother in the United States to help arrange their return. The respondent's mother, together with another friend, drove to Calexico, California. The respondent's mother waited and the friend accompanying her crossed into Mexicali, Mexico, where he met the respondent and her boyfriend. They discussed how they would each cross into the United States and reassemble in Calexico. The respondent and her mother's friend crossed legally through the port of entry, into the United States. The respondent's boyfriend crossed illegally. All three joined the respondent's mother at the meeting place and then headed north.
The group was subsequently apprehended in their vehicle at a border patrol checkpoint. The respondent's boyfriend, who was in the United States without authorization, elected to return voluntarily to Mexico. Four months later, he again crossed illegally into the United States to join the respondent. They were married in November 1993.
At the time of the hearing, the respondent had three children from a previous relationship. She testified that all three of these children, then ages 7, 6 and 3, were United States citizens. In addition, she testified that she and her husband were expecting a child.
After finding the respondent deportable as charged, the Immigration Judge informed her of the potential availability of a waiver of deportability under section 241(a)(1)(E)(iii) of the Act, which applies to aliens who engaged in smuggling activity with respect to their spouse, parent, son, or daughter. However, he directed the parties to brief the issue of the respondent's eligibility to apply for this waiver. In particular, he noted that the law is not clear in this area. Ultimately, in his March 14, 1995, decision, the Immigration Judge was persuaded by the respondent's interpretation of the waiver. He noted that it would be more in keeping with the promotion of family unity to recognize the respondent's husband as such at the time she applied for her waiver. Further, the Immigration Judge, in granting the waiver, concluded that the respondent's marriage was bona fide.
The issue in this case is whether the familial relationship requirement under section 241(a)(1)(E)(iii) of the Act must be extant at the time the smuggling occurs, or whether it is sufficient that the relationship exist at the time of application for the waiver.
The waiver under section 241(a)(1)(E)(iii) of the Act was created by section 602(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5078 ("1990 Act"). Before its amendment in 1990, the section of the Act that made smuggling aliens a ground of deportation required the smuggling to be "for gain." The 1990 Act removed gain as an element of alien smuggling and created a discretionary waiver of deportability, designated as section 241(a)(1)(E)(iii) of the Act, for lawful permanent residents who attempted to smuggle certain members of their immediate family, i.e., a spouse, parent, son, or daughter, into the United States.
Section 241(a)(1)(E)(iii) of the Act provides:
The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) in the case of any alien lawfully admitted for permanent residence if the alien has encouraged, induced, assisted, abetted, or aided, only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
The Service argues that the plain meaning of the language in section 241(a)(1)(E)(iii) supports the proposition that the familial relationship had to exist at the time the smuggling occurred. In particular, the Service states that the language used to delineate the qualifying relationships under the statute is exclusive and limiting. In addition to setting out the specific family members, the exclusive nature of these relationships is emphasized by the word "only." Further, the parenthetical phrase, "and no other individual," is added to underscore the specific relationships that qualify. Speculative categories, i.e., fiances, are not included.
Further, the Service contends that to interpret the terms of the waiver as applying to family members acquired subsequent to the smuggling would be to encourage "illicit marriages, rushed marriages, and illegal re-entry" of smuggled aliens "who are normally voluntarily returned to Mexico after arrest."
The respondent also contends that the plain language of the statute supports her position. In her view, the language clearly states that a waiver is available where an alien has smuggled only her spouse, parent, son, or daughter. The respondent agrees with the Immigration Judge that family unity is served by extending a waiver to include a relationship arising after the act of smuggling and in existence at the time of application, particularly where the marriage creating the relationship is valid. The respondent notes that any concern about sham marriages can be resolved in the discretionary aspect of the waiver application.
The starting point in statutory construction generally is the language of the statute. See INS v. Cardoza-Fonseca, 480 U.S 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984) (). We disagree with both of the parties to the extent that they view the plain language of section 241(a)(1)(E)(iii) to be clear. The plain language of the statute merely sets forth the qualifying family relationships. The statute is silent as to when the specified familial relationship had to come into existence.
The legislative history of the Immigration Act of 1990 also sheds no light on the purpose behind the revisions to the ground of deportation for alien smugglers. However, we have previously construed the parallel waiver in exclusion, under section 212(d)(11) of the Act, 8 U.S.C. § 1182(d)(11) (1994),...
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