In re S-O-S-
| Decision Date | 09 July 1998 |
| Docket Number | Interim Decision No. 3355. |
| Citation | 22 I&N Dec. 107 |
| Parties | In re S-O-S-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In cases falling within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, exclusion proceedings are appropriate for aliens returning to the United States under a grant of advance parole, with two exceptions. Those exceptions are aliens with pending registry applications and those not specifically informed by the Immigration and Naturalization Service that they risk being placed in exclusion proceedings upon return. Matter of Torres, 19 I&N Dec. 371 (BIA 1986), modified.
Pro se.
Elena Kusky, Assistant District Counsel, for the Immigration and Naturalization Service.
Before: Board En Banc: SCHMIDT, Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, JONES, and GRANT, Board Members. Concurring Opinion: GUENDELSBERGER, Board Member. Dissenting Opinion: ROSENBERG, Board Member.
VILLAGELIU, Board Member.
In an oral decision dated May 16, 1996, an Immigration Judge granted the Immigration and Naturalization Service's motion to terminate these deportation proceedings against the respondent. The respondent has appealed that decision. In addition, the Service has filed a motion to remand. The respondent's appeal will be dismissed and the Service's motion will be denied.
While his original asylum application was pending with the Service, the respondent departed from the United States under a grant of advance parole. Upon his return, his application was denied and the respondent was placed in deportation proceedings. During the hearing, however, the Service asserted that this was a mistake, as the respondent had not made an entry when paroled into the United States and should have been placed in exclusion proceedings. The Immigration Judge agreed with the Service and granted its motion to terminate the proceedings.
On appeal, the respondent argues that the Immigration Judge erred in terminating the proceedings, as the case law on this issue supports his right to adjudicate his asylum application in deportation proceedings.1 In addition, the respondent contends that termination would result in prejudice to him because he would be forced to relitigate matters already resolved prior to termination.
Several cases have dealt with the issue of whether an alien who is granted advance parole while an application for relief is pending is entitled to deportation or exclusion proceedings. For example, the Board has held that an applicant for adjustment of status who is returning to the United States pursuant to a grant of advance parole is properly placed in exclusion proceedings. See, e.g., Matter of Torres, 19 I&N Dec. 371 (BIA 1986). However, as correctly pointed out by the respondent, Matter of Torres does not apply to cases, such as this one, arising in the Ninth Circuit.2 Rather, according to the respondent, the United States Court of Appeals for the Ninth Circuit, in contrast to Board precedent, has held that aliens who reenter after a grant of advance parole retain the right to be heard in deportation proceedings. See Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995); Patel v. Landon, 739 F.2d 1455 (9th Cir. 1984).
However, the Ninth Circuit has recently distinguished the cases relied upon by the respondent. See Barney v. Rogers, 83 F.3d 318 (9th Cir. 1996). In Barney, the court upheld our decision to place an alien, whose adjustment application was pending, in exclusion proceedings following a grant of advance parole. Id. at 321. In that situation, the respondent was only entitled to exclusion proceedings. Id.; see also Landon v. Plasencia, 459 U.S. 21 (1982); Leng May Ma v. Barber, 357 U.S. 185 (1958). The Ninth Circuit explained that "the advance parole gave Petitioner the right to return for the purpose of completing her Adjustment Application; it did not `freeze' her status as an illegal overstay." Barney v. Rogers, supra, at 321. This conclusion is directly supported by federal regulations which were enacted by the Service in response to the Ninth Circuit's decision Patel v. Landon, supra, and the Fourth Circuit's decision in Joshi v. District Director INS, 720 F.2d. 799 (4th Cir. 1983). See Navarro-Aispura v. INS, supra, at 235. These regulations state as follows in pertinent part:
The departure of an applicant who is not under deportation proceedings shall be deemed an abandonment of his or her application constituting grounds for termination, unless the applicant was previously granted advance parole by the Service for such absence, and was inspected upon returning to the United States. If the application of an individual granted advance parole is subsequently denied, the applicant will be subject to the exclusion provisions of section 236 of the Act. No alien granted advance parole and inspected upon return shall be entitled to a deportation hearing.
8 C.F.R. § 245.2(a)(4)(ii) (1996) (emphasis added); see also section 212(d)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5)(A) (1994); 8 C.F.R. § 212.5(b)(1996),
In its decision in Barney v. Rogers, supra, at 321, the Ninth Circuit noted that it had held differently in Navarro-Aispura because that case dealt with an application for registry. Unlike adjustment applicants, applicants for registry were not specifically given notice on the advance parole form that they would be subject to exclusion proceedings upon return. Id.; see also Authorization for Parole of an Alien into the United States (Form I-512). According to the court, the registry applicant in Navarro-Aispura could reasonably assume that the warning given on a Form I-512, relating to adjustment applications, did not apply to him or her. In contrast, the alien in Barney was given explicit warnings on her advance parole form that she would be subject to exclusion proceedings upon return. Therefore, the Ninth Circuit held that 8 C.F.R. § 245.2(a)(4)(ii) applies to adjustment of status cases, but not to registry cases. Barney v. Rogers, supra, at 321.
In light of the Ninth Circuit's reasoning, we find that the federal regulations placing parolees in exclusion proceedings should be applied to the case at hand. As shown by the Service during the hearing, aliens with a grant of advance parole whose asylum applications are pending are given the same warnings as those whose adjustment applications are pending. In other words, the respondent was specifically warned that, upon denial of his asylum request, he would be placed in exclusion proceedings when he returned to the United States.3 The reasoning of Navarro-Aispura therefore does not apply to this case. We hereby modify Matter of Torres, supra, in accordance with the Ninth Circuit's holding in Barney v. Rogers, supra. Therefore, with regard to cases falling within the jurisdiction of the Ninth Circuit, exclusion proceedings are appropriate for aliens returning to the United States under a grant of advance parole. The exception to this rule, however, is in cases dealing with registry applications or, similarly, where an alien has not been specifically informed by the Service that he or she risks being placed in exclusion proceedings upon return.4
In addition, we find no prejudice to the respondent by terminating his deportation proceedings. Unlike some forms of relief, asylum can be pursued in both deportation and exclusion proceedings. The respondent will not be foreclosed from applying for the same relief in exclusion proceedings.5 Furthermore, with regard to the respondent's argument that he would be forced to relitigate certain issues already decided in the deportation proceedings, we find that, other than the issue of whether to terminate, no other issues caused any real litigation. The respondent essentially conceded deportability, and no evidence had yet been presented regarding his claim of persecution for purposes of applying for asylum. Accordingly, we are unable to conclude that the respondent would suffer hardship or prejudice by being forced to pursue his claim in exclusion proceedings.
Based on the foregoing, we find that the Immigration Judge properly terminated deportation proceedings. The respondent has failed to establish that he has a right to pursue his claim in deportation proceedings or that such a result would prejudice his claim.
Vice Chairman Mary Maguire Dunne and Board Member Lori L. Scialabba did not participate in the decision in this case.
CONCURRING OPINION: John W. Guendelsberger, Board Member
I concur in the result reached by the majority opinion in this case. The respondent failed to demonstrate that the notice provided at the time he was granted advance parole was inadequate to inform him that he would be placed in exclusion proceedings should his asylum claim before the Immigration and Naturalization Service be denied. Therefore, unlike in Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998), 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), is not determinative of the outcome of this case.
I dissent for the reasons set forth in my separate dissenting opinion in Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998). As the reasoning and authority in my dissent in that case illustrates, by ignoring the relevant and controlling law of the United States Supreme Court and the United States Court of Appeals for the Ninth Circuit, the majority misses the point. See, e.g., Mendoza v. INS, 16 F.3d 335 (9th Cir. 1994) (citing Fleuti v. Rosenberg, 374 U.S. 449 (1963)); see also Espinoza-Gutierrez v. Smith, 94 F.3d 1270 (9th Cir. 1996); Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995); Navarro-Aispura v. INS, 53 F.3d 233 (...
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