In re G-a-C-
| Decision Date | 09 July 1998 |
| Docket Number | Interim Decision #3354 |
| Parties | In re G-A-C-, Applicant |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 13, 1995, the Immigration Judge determined that the applicant was properly in exclusion proceedings and found him inadmissible under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994).1 The Immigration Judge also ruled that the applicant was ineligible for suspension of deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a) (1994), in exclusion proceedings and denied his applications for asylum and withholding of deportation. The applicant has appealed. The appeal will be dismissed.
The applicant first entered the United States in 1983 as a nonimmigrant on an "F-1" student visa. He had various departures and reentries into the United States in 1988, ultimately reentering this country on August 2, 1988, on his "F-1" visa. In 1989, with the conditions in his home country of Lebanon worsening, the applicant filed an application for asylum with the Immigration and Naturalization Service. In May 1991, the applicant earned a master's degree in engineering. It is not claimed that at any point thereafter he continued as a student in this country.
In 1993, while his application for asylum was still pending, the applicant testified that he learned that his father was being treated for cancer in Paris. Shortly thereafter, he submitted an Application for Travel Document (Form I-131) to an Immigration and Naturalization Service district director, applying for an "advance parole" document so that he could visit his father. On January 28, 1993, the district director approved the applicant's request. The Authorization for Parole of an Alien Into the United States (Form I-512) advised the applicant that presentation of that document prior to March 27, 1993, would "authorize an immigration officer at a port of entry in the United States to permit the [applicant] to enter the United States as an alien paroled pursuant to section 212(d)(5) of the Immigration and Nationality Act." (Emphasis added.) See section 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5)(Supp. V 1993); 8 C.F.R. § 212.5(e) (1993). The remarks section of the form noted:
Subject is an alien who is not an exchange alien subject to the foreign residence requirement, is not the beneficiary of a private bill and is not under deportation proceedings, in whose case parole has been authorized by the District Director in the public interest. If, upon your return to the United States you are found to be inadmissible, you will be subject to exclusion proceedings under Section 236 of the Immigration and Nationality Act.
The arrival stamp on the Form I-512 reflects that on his return to the United States in 1993, the applicant was, in fact, indefinitely paroled into the United States under the provisions of section 212(d)(5) as a matter of "public interest."
On March 9, 1994, the Service denied the applicant's application for asylum and notified him on April 7, 1994, that his parole for deferred inspection had been revoked as of that date. See 8 C.F.R. § 212.5(d)(2)(i) (1994). The applicant was also served with a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (Form I-122), which advised him that he did not appear entitled to enter the United States because he appeared to be an immigrant who, at the time of application for admission, was not in possession of a valid entry document and was not exempt from the presentation thereof.
In a prehearing brief, the applicant argued through counsel that he had been incorrectly placed in exclusion proceedings. He submitted that he had the right to have his status tested in deportation proceedings, which, in addition to allowing him to further pursue his application for asylum, would also permit him to apply for suspension of deportation. He requested that the Immigration Judge "look to the spirit of the law" because, if he had known he would not be "put in the same situation" when he returned to the United States in 1993, he never would have left to visit his sick father. However, the Immigration Judge denied the applicant's motion, concluding that he was properly in exclusion proceedings. In this regard, the Immigration Judge noted that the advance parole document issued to the applicant "clearly indicates to the holder that upon return to the United States he will be subject to exclusion proceedings under section 236 of the Immigration and Nationality Act."
The applicant pursued his application for asylum and withholding before the Immigration Judge. He testified that he was a Lebanese Christian from Bsalim, a town mostly inhabited by Christians. There had been fighting around the outskirts of this town in 1983 between Christian/Lebanese forces2 and Syrian forces. The applicant testified that Christians in his town were forced to fight for the Lebanese forces, and that when he was in high school he had received training during breaks and at two summer camps. He was required to participate in the training or "they'll come after you and take you by force" and "they would not give you a diploma unless you participated in [this] training."
The applicant graduated from high school in 1982. Thereafter (apparently in 1983), he was drafted by the militia and forced to go to the "front" as part of a group of 40 men. He stated that he was an enlisted man, was good with artillery because of his math skills, and was second in command of his group of nine men. He was kept at the front for 1 month without leave. He was then given a 6-hour leave. He told his superiors that that was not enough time and he probably would not be able to make it back. A superior responded that if he did not return he was "a dead man." He testified that he had heard that others who had not returned from leave were hunted down or killed. He did not want to return to the front because he did not want to be part of the war. He went on leave, deserted from the militia, and hid at a relative's house. The Lebanese forces looked for him without success. They held his younger brother for a "couple of days" and questioned him about the applicant's whereabouts, but his brother was released because he was young and did not have a skill. In November 1983, the applicant went to the American Embassy in predominately Muslim West Beirut, without having to cross any Christian militia checkpoints, and successfully applied for a student visa. As noted above, he first entered the United States later that same year.
The applicant testified that he returned to Lebanon in 1988 to visit his parents for about 6 weeks because he was very concerned about them. He stayed at his parents' home and did not go anywhere else because of the fighting and because he did not want to be recognized by anyone, particularly his previous superiors. The applicant returned to Lebanon again in 1993 for 7 weeks because of his father's poor health. He did not have any trouble in Lebanon in 1988 or 1993. However, he testified that he was fearful of returning to Lebanon because be was afraid he would be called a deserter by former members of the Christian militia and be blamed for "losing their wars." He stated that his previous superiors still lived in his hometown, that they were armed and could not be controlled by the government, and that he was afraid they would probably do "the ultimate." He testified that the "war lords" could hunt him down anywhere in Lebanon, but acknowledged that the leader of his 40-man militia unit was not a "war lord."
The initial issue raised in this case, which was briefed and argued before the Immigration Judge, is whether the applicant is properly in exclusion proceedings. There are two principal aspects to this issue. The first is whether, aside from Ninth Circuit precedent, we would agree with the Immigration Judge's conclusion that the applicant was properly in exclusion proceedings because he was paroled into the United States in 1993 under the provisions of section 212(d)(5) of the Act. The second is whether, irrespective of our own conclusion in this regard, deportation proceedings are mandated under the facts of this case by the decision of the United States Court of Appeals for the Ninth Circuit in Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995).
The applicant in this case was paroled into the United States under the authority of section 212(d)(5)(A) of the Act, which provides:
The Attorney General may, except as provided in subparagraph (B) or in section 214(f), in [her] discretion parole into the United States temporarily under such conditions as [she] may prescribe for emergent only reasons or for 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...
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