Joshi v. District Director, I.N.S., 83-1614

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation720 F.2d 799
Docket NumberNo. 83-1614,83-1614
PartiesShrikishan Hiralal JOSHI, Appellant, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Appellee.
Decision Date27 October 1983

Charles Gordon, Washington, D.C., for appellant.

James A. Hunolt, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Civ. Div., Charles E. Hamilton, III, Asst. Director, Washington, D.C., on brief), for appellee.

Before WINTER, Chief Judge, MURNAGHAN, Circuit Judge, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

Contending that he was entitled to have his status determined in deportation proceedings, Shrikishan Hiralal Joshi, an alien, appeals from the denial of an application for a writ of habeas corpus in which he challenged a decision of the Board of Immigration Appeals upholding his exclusion from the United States. We reverse the judgment of the district court and direct the entry of a writ declaring the exclusion order invalid and remanding this matter to the Immigration and Naturalization Service for determination in deportation proceedings of the relief Joshi seeks. We express no view on the merits of Joshi's substantive claims.

I

Joshi, a 67-year old citizen of India, was lawfully admitted to the United States in 1973 as a nonimmigrant business visitor. In 1974, he applied to the district director of the Immigration and Naturalization Service for an adjustment of status to that of a permanent resident. In June 1975, while his application was pending, Joshi sought permission to travel to India on business. The Service granted his request in the form of an "advance parole." Joshi made his business trip and returned six weeks later to resume his application for adjustment of status. This application was denied in 1976. A subsequent application and a motion for reconsideration were also denied.

The Service instituted exclusion proceedings against Joshi in 1978. 1 He objected to the exclusion proceedings as inappropriate and also renewed his application for adjustment to permanent resident status. The immigration judge overruled the objection to the exclusion proceedings. At the conclusion of the hearing in April 1983, she denied Joshi's application for adjustment of status and ordered him excluded from the United States. The judge also denied the discretionary relief that Joshi sought.

The Board of Immigration Appeals rejected Joshi's claim that he should have been accorded deportation rather than exclusion proceedings and dismissed his appeal. It concluded that Joshi lost his right to deportation proceedings when he obtained the first advance parole. The Board also upheld the denial of his request for suspension of deportation, ruling that this relief is "only available in deportation proceedings." It affirmed the denial of other discretionary relief. No precedent precisely on point was available to the Board because Joshi's case appears to be the first to consider the consequences of an alien's authorized departure and return to resume a pending application for change of status.

II

After Joshi was lawfully admitted to this country as a business nonimmigrant in 1973, he could be removed only by deportation proceedings. He could not be subjected to exclusion proceedings. In 1974 when he applied for permanent residency, his deportable status remained unchanged under a long-standing administrative practice that regards the applicant's authorized stay in the United States as continuing while his application is under consideration. See INS Operations Instructions 245.5b, reproduced in 4 Gordon & Rosenfield, Immigration Law and Procedure 23-530 (1983).

The type of hearing accorded Joshi has far-reaching effects. A deportation hearing is the usual means of proceeding against an alien already physically in the United States; an exclusion hearing is the usual means of proceeding against an alien who is seeking admission. Landon v. Plasencia, --- U.S. ----, 103 S.Ct. 321, 325, 74 L.Ed.2d 21 (1982). If Joshi is entitled to deportation proceedings, he would have many substantive and procedural benefits not available to an excludable alien. The Supreme Court has noted that "the alien who loses his right to reside in the United States in a deportation hearing ... may be able to depart voluntarily, Sec. 244(e), 8 U.S.C. Sec. 1254(e), avoiding ... the stigma of deportation, Sec. 242(b), 8 U.S.C. Sec. 1252(b) ... or he can seek suspension of deportation, Sec. 242(e), 8 U.S.C. Sec. 1252(e)." Landon v. Plasencia, --- U.S. ----, 103 S.Ct. 321, 326, 74 L.Ed.2d 21 (1982).

III

Despite Joshi's protestations that he has been denied due process of law because subjecting him to exclusion proceedings is fundamentally unfair, we conclude that resolution of this appeal does not depend on the application of constitutional principles. Instead, it involves interpretation of statutes, regulations, and the Service's operations instructions. Although the appeal presents an issue of first impression, Supreme Court opinions dealing with closely-related matters furnish controlling precedent.

In Rosenberg v. Fleuti, 374 U.S. 449, 457-58, 83 S.Ct. 1804, 1809-1810, 10 L.Ed.2d

1000 (1963), the Supreme Court noted that Congress, reacting to the narrow judicial interpretation of "entry" when it enacted Sec. 101(a)(13), wanted to ameliorate the harsh results visited upon aliens who had previously entered and resided in the United States. 2 The Court said: "We conclude, then, that it effectuates congressional purpose to construe the intent exception to Sec. 101(a)(13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence." The Court left development of this concept to the judicial process, but in the case at hand, it applied this interpretation of the statute to a resident alien whose departure from the United States "was an innocent, casual and brief excursion." Under these circumstances, the returning alien was not subject to the consequences of entry. Its interpretation of the Act, the Court explained, gave recognition to congressional intent to protect aliens residing in the country from unexpected risks and unintended consequences of wholly innocent action. 374 U.S. at 462, 83 S.Ct. at 1812.

In 1968 the Commissioner issued a regulation, 8 C.F.R. Sec. 245.2(a)(3), which in effect applied the Fleuti rationale to the departure of aliens who, like Joshi, are seeking adjustment of status. 3 It is apparent from the text of the regulation that an applicant for adjustment of status who makes an unintended departure from the United States for a brief absence is not deemed to have lost his entitlement to adjudication of his application in deportation proceedings. On this point the regulation is explicit: "[T]he application shall be adjudicated without regard to the departure and absence." The alien is accorded this favorable treatment because, as Fleuti explains, the congressional purpose is effectuated by ascertaining whether the alien intended his departure to be "meaningfully interruptive." 374 U.S. at 462, 83 S.Ct. at 1812.

Fleuti also teaches that the relevant factors pertaining to an alien's intent should be developed " 'by the gradual process of judicial inclusion and exclusion' ..." 374 U.S. at 462, 83 S.Ct. at 1812. This case, we believe, provides a proper occasion for giving effect to this aspect of Fleuti.

Joshi's intent in departing from the United States has never been questioned. He recognized that if he left without permission he would abandon his application for adjustment of status. Consequently, to preserve his application he sought permission. Moreover, he was granted permission by a document that recited in part: "This authorization will permit you to resume your application for adjustment of status on your return to the United States." It is quite clear that Joshi intended to preserve, rather than meaningfully interrupt, his entitlement to a deportation proceeding. We conclude that Joshi's departure, absence, and return pursuant to permission for the express purpose of resuming his application for adjustment of status was "unintended" within the meaning of the regulation as interpreted according to the principles explained in Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000.

Joshi's absence was brief, as well. Under the Service's internal regulations, the adjustment applicant is required to return to the United States within two months of the date the advance authorization form is issued. INS Operations Instruction 212.5c, reproduced in Gordon & Rosenfield, 4 Immigration Law and Procedure 23-168.4, 23-171 (1983). Joshi complied with this requirement, returning from India after a six-week absence.

Joshi has satisfied all of the requirements of 8 C.F.R. Sec. 245.2(a)(3). His departure was unintended within the meaning of this regulation. His absence was brief when measured by INS Operations Instruction 212.5c. He was inspected pursuant to Sec. 235, 8 U.S.C. Sec. 1225(a), and allowed to return to the country. Consequently, pursuant to the regulation, his application for adjustment of status should have been "adjudicated without regard to the departure and absence." Joshi was entitled to have his application adjudicated in deportation proceedings before his authorized departure. By the terms of the regulation, he is still entitled to adjudication in deportation proceedings and to the ancillary relief available to those proceedings. The Board erred by sustaining adjudication in exclusionary proceedings.

We do not suggest that Joshi could not have been denied admission to the country upon his return from India in 1975 in an exclusion hearing. He was subject to inspection when he presented himself at the border. Notwithstanding the permission he had received to depart and return, if he had violated any immigration law or if he had misrepresented the...

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