In re Masri
| Decision Date | 30 November 1999 |
| Docket Number | Interim Decision No. 3419.,File A91 890 751. |
| Parties | In re Saleem Hassan MASRI, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In an order dated January 15, 1998, an Immigration Judge terminated rescission proceedings brought against the respondent under section 246(a) of the Immigration and Nationality Act, 8 U.S.C. § 1256(a) (Supp. II 1996), and certified his decision to this Board for review pursuant to 8 C.F.R. §§ 3.1(c) and 242.8 (1997). The Immigration Judge's decision will be affirmed.
The record reflects that the respondent's status was adjusted on December 1, 1990, from that of lawful temporary resident to lawful permanent resident pursuant to the special agricultural worker ("SAW") provisions set forth at section 210 of the Act, 8 U.S.C. § 1160 (1988 & Supp. II 1990). On November 27, 1995, the district director of the Immigration and Naturalization Service issued a notice of intention to rescind the respondent's adjustment of status, alleging that the respondent had procured his lawful permanent residence through fraud or willful misrepresentation. Specifically, the Service alleged that the respondent had stated that he had performed qualifying agricultural work at a farm, that the respondent had submitted employment verification documents signed by his purported employer, including an Affidavit Confirming Seasonal Agricultural Employment (Form I-705), and that the respondent had certified that the information in his application was true.
The Service also asserted that on August 6, 1995, the purported employer signed a sworn statement in which he declared that the Form I-705 was not signed by him, that the respondent never resided with him and that, in fact, he never had met the respondent. Therefore, in the decision that gave rise to the rescission proceedings before the Immigration Judge, the Service found that the evidence previously submitted by the respondent lacked credibility and that he had failed to establish performance of 90 days of agricultural employment during the requisite period. The Service concluded that the respondent's adjustment of status was the result of fraud or willful misrepresentation with regard to his lawful temporary residence application and should be rescinded.1
Pursuant to 8 C.F.R. § 246.1 (1996), the respondent timely requested a hearing from the Service's findings before an Immigration Judge. The respondent argued that under section 210(b)(6)(A) of the Act, the information contained in the application for temporary resident status is confidential and can be used only for certain purposes; these purposes do not include the rescission of adjustment of status. Therefore, the respondent requested that the Immigration Judge terminate the proceedings.
In his January 15, 1998, decision, the Immigration Judge found that to prove its allegations, the Service sought to rely exclusively on information furnished by the respondent in applying for legalization under the SAW program. The Immigration Judge further found that the use of this information was in violation of the confidentiality provisions contained in section 210(b)(6)(A) of the Act. He concluded that the Service failed to meet its burden of proof in these proceedings. The Immigration Judge terminated the proceedings and certified the case to the Board. 8 C.F.R. §§ 3.1(c), 3.7 (1998).
By letter dated January 26, 1999, we notified the parties of the certification and informed them of their right to make representations before the Board, including the right to request oral argument and to submit a brief. In addition, we requested that they address the following two specific issues: (1) whether use of the information provided by the respondent in his SAW application is barred under the confidentiality provision listed in section 210 of the Act; and (2) whether the Board has jurisdiction over this case in light of the fact that the Service and its Administrative Appeals Unit ("AAU") have exclusive jurisdiction over the initial determination of the application for lawful permanent residence. Both parties responded to our letter by filing briefs, which have been included in the record.
There are two principal issues before us. The first issue is the scope of our jurisdiction in proceedings involving rescission of adjustment of status granted pursuant to section 210 of the Act. The second issue is the effect of the confidentiality provision in section 210 of the Act.
On certification, the Service argues that rescission proceedings pursuant to section 246 of the Act constitute a proper forum in which to redetermine the respondent's eligibility for temporary residence and adjustment of status. The Service urges the Board to consider the evidence originally provided, notwithstanding the statutory bar under section 210(b)(6)(A) of the Act restricting the use of such information, and to rescind the action granting adjustment of status.
The Service acknowledges that the only evidence it has to establish that the respondent committed fraud in applying for lawful temporary residence is that provided by the respondent in connection with his original application for temporary residence. The respondent emphasizes the statutory and regulatory restrictions limiting the use of evidence deemed confidential under section 210 of the Act and reasserts his position that the rescission proceedings were properly terminated on the merits by the Immigration Judge.
As stated by the United States Supreme Court, there is "no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." Perry v. Commerce Loan Co., 383 U.S. 392, 400, reh'g denied, 384 U.S. 934 (1966). If the statutory language is clear, that is the end of the inquiry, as Immigration Judges and this Board, as well as the courts, "`must give effect to the unambiguously expressed intent of Congress.'" Matter of W-F-, 21 I&N Dec. 503, 506 (BIA 1996) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)); see also Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir. 1993).
The same is true of regulations. Diaz v. INS, 648 F. Supp. 638, 644 (E.D. Cal. 1986) (citing Malat v. Riddell, 383 U.S. 569, 571 (1966)). It is assumed that the legislative purpose is expressed by the ordinary or plain meaning of the words used. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Fesale, 21 I&N Dec. 114, 117-18 (BIA 1995); see also Malat v. Riddell, supra, at 571.
In addition, a statute or regulation should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or superfluous, void or insignificant. See 2A Norman J. Singer, Sutherland Statutory Construction § 46.06 (4th ed. 1984); see also Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994). It is a court's duty "`to give effect, if possible, to every clause and word of a statute.'" United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting Inhabitants of Montclair Township v. Ramsdell, 107 U.S. 147, 152 (1883)). "A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." United Sav. Ass'n of Texas v. Timbers of Inwood Forest Assoc., 484 U.S. 365, 371 (1988); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987); see also Diaz v. INS, supra, at 644 (). Keeping these rules of construction in mind, we now turn to the statutory and regulatory sections at issue.
Section 246(a) of the Act directs the Attorney General to rescind a prior action granting a person adjustment of status to that of an alien lawfully admitted for permanent residence if it appears to the "satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status." Section 246(a) of the Act provides, in pertinent part, as follows If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 or section 249 of this Act [1255 or 1259] or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the...
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