In re Singh, Interim Decision No. 3282.
| Decision Date | 14 June 1996 |
| Docket Number | Interim Decision No. 3282. |
| Parties | In re Sukwinder SINGH, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
A returning applicant for legalization under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991), may not, by virtue of his membership in the class action suit of Catholic Social Services v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff'd sub nom. Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated sub nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993), successfully file a motion to terminate exclusion proceedings based on the doctrine set forth in Rosenberg v. Fleuti, 374 U.S. 449 (1963).
Pro se.1
FOR IMMIGRATION AND NATURALIZATION SERVICE: Wendi Lazar, General Attorney.
BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG, Board Member.
DUNNE, Vice Chairman.
In a decision dated December 13, 1994, an Immigration Judge granted the applicant's motion to terminate exclusion proceedings based upon her decision that the applicant had made a brief, casual, and innocent departure from the United States. The Immigration and Naturalization Service filed a timely appeal from that decision. The appeal will be sustained and the record will be remanded to the Immigration Court.
The applicant is a native and citizen of India. The record indicates that he originally entered the United States without inspection in 1980. The applicant contends, and the Service does not dispute, that in 1991, the applicant applied for adjustment of status under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991). While his application was pending, the applicant departed for India without securing
advance parole as required under 8 C.F.R. § 245a.2(m)(1) (1991). On April 15, 1994, the applicant applied for admission into the United States. The record reflects that upon arrival, the applicant presented himself for inspection and confessed to immigration officials that he possessed a fraudulent passport. On April 16, 1994, the Service served the applicant with a Notice to Applicant for Admission Detained for Hearing Before Immigration Judge (Form I-122), alleging that he is inadmissible due to his alleged fraud and lack of proper immigration documents.
At an exclusion hearing held October 27, 1994, the applicant requested leave to file a motion to terminate proceedings based upon the Supreme Court's decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963). The Immigration Judge continued the hearing until December 13, 1994, at which time she considered the applicant's motion. In his motion, the applicant argued that, due to his status as a lawful temporary resident applicant with a designation of subclass CS1, he should not be found excludable because his departure to India was brief, casual, and innocent. At the hearing, the Immigration Judge took testimony regarding the nature of the applicant's departure from the United States. At the conclusion of the hearing, the Immigration Judge determined that the applicant's trip to India did constitute a brief, casual, and innocent departure pursuant to Rosenberg v. Fleuti, supra. She therefore terminated the proceedings.
On appeal, the Service argues that the Immigration Judge did not have the authority to terminate the applicant's exclusion proceedings under the Fleuti doctrine. Alternatively, the Service argues that the applicant's departure does not fall within the ambit of Rosenberg v. Fleuti, supra. Because we agree with the Service's initial argument, we will not analyze whether the applicant's departure constituted a brief, casual, and innocent departure from the United States.
In order to address the Service's appellate contentions, we must first examine the statutory and regulatory provisions regarding section 245A legalization applicants. We stress, however, that while the applicant claims entitlement to a Fleuti determination due to his status as a legalization applicant, we have no authority to consider the applicant's eligibility for legalization. See section 245A(f) of the Act. By statute, Congress has prevented us from even reviewing his legalization file. See sections 245A(c)(4), (5) of the Act; see also 8 C.F.R. § 245a.2(t) (1995). Our jurisdiction is limited solely to the consideration of the Service's charges of excludability.
Section 245A of the Act allows an alien to adjust his status to that of an alien lawfully admitted for temporary residence if the alien meets certain requirements, including, but not limited to, his continuous unlawful residence and continuous physical presence in the United States since 1982. See section 245A of the Act. Federal regulations further state that an alien must apply for temporary residence "within the twelve month period beginning on May 5, 1987, and ending on May 4, 1988." 8 C.F.R. § 245a.2(a). Subsequent to the institution of the legalization program, various lawsuits arose arguing against the closing of the application period on May 4, 1988. See, e.g., Catholic Social Services v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff'd sub nom. Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated sub nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993) ("CSS"); League of United Latin American Citizens v. INS, No. 87-4757-WKD (C.D. Cal. July 15, 1988), aff'd sub nom. Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated sub nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993) ("LULAC"). The district courts in California certified two separate classes for lawsuits (CSS and LULAC); these classes consisted of prima facie eligible applicants who had failed to file applications within the regulatory period.2 The Eastern District Court thereafter enjoined the Attorney General from excluding class members who had travelled abroad without proper immigration documents. Catholic Social Services v. Reno, No. Civ. S-86-1343 LKK (E.D. Cal. Apr. 28, 1993).
More specifically, the court in Catholic Social Services v. Reno, supra, slip op. at 7, ordered that the Attorney General of the United States, her agents and employees
shall not detain, exclude or deport any subclass 1 member applicant solely because he or she departed the United States without INS permission (advance parole) and returned after a "brief, casual and innocent" absence. . . . Any subclass 1 members held in detention solely
on the basis that they departed from the United States without advance parole shall be immediately released from detention if their absence was otherwise "brief, innocent and casual."
Although the district court specifically stated that the Attorney General may not "exclude or deport" a CS1 member, we do not find this language determinative. We further note that the United States Court of Appeals for the Ninth Circuit decided, subsequent to the district court's injunction, that similar language within the seasonal agricultural worker legalization provisions of the Act did not preclude the initiation of proceedings or the entry of a deportation order. See Lucy Ko Yao v. INS, 2 F.3d 317, 319 (9th Cir. 1993).3 The court further explained that "(t)he order simply may not be executed unless and until an adverse legalization determination is made and is final." Id. Inasmuch as the Service retains sole jurisdiction over the execution of such orders, we find that the injunction itself does not define the procedures which the Immigration Judges and this Board should follow in exclusion proceedings of returning CS1 applicants.
As a result of the injunction, the Service issued a memorandum on May 18, 1993, instructing its officers to cease placing into exclusion proceedings certain CSS class members who had travelled abroad without the protection of advance parole. Pursuant to the order, Service agents were also required to determine to which class action suit an alien belonged. If the alien belonged to the CSS class action suit, the agent was to determine the nature of the applicant's departure from the United States. If the agent found the alien's departure to be "brief, casual, and innocent" as that term has been defined under the immigration laws, the Service directed the officer to parole the alien into the United States for a period of 1 year. Moreover, the directive contained the following provisions:
Effective immediately, any exclusion proceedings against a CSS class member which commenced solely because the alien sought admission without advance parole are to be terminated and the alien is to be paroled into the United States. . . . However, if the alien's absence was not brief, casual, and innocent, or if the alien is excludable under a non-waivable ground, proceedings and detention may proceed.
70 Interpreter Releases, No. 22, June 7, 1993, at 744. Lastly, the memorandum clearly specified that termination of exclusion proceedings upon a finding of brief, casual, and innocent departures should extend only to CSS class members, and not to any other 245A applicant or class litigant. Specifically, in its May 18, 1993, memorandum, the Service explained that the status of an alien seeking admission as a CSS class member may be checked through its
Central Indexing System ("CIS"), and "is indicated by the class of admission CS1." Id. at 744.
We have held that while such policy guidelines are not binding on the Board, we will nonetheless adopt a Service policy when appropriate. See Matter of M/V Saru Meru, 20 I&N Dec. 592 (BIA 1992); Matter of...
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