Luevano v. I.N.S.
| Decision Date | 29 November 1993 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before McKAY, Chief Judge, SETH, and BARRETT, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Petitioner seeks review of a final order of deportation entered by the Board of Immigration Appeals. We affirm.
Petitioner was granted temporary resident status under the "legalization," or "amnesty," provisions of the Immigration Reform and Control Act of 1986, 8 U.S.C. 1255a. Under the regulations promulgated pursuant to the statute, an alien who is granted temporary residence must apply for permanent residence within forty-three months, or his temporary resident status will terminate. 8 C.F.R. 245a.2(u)(1)(iv).
After Petitioner's application for temporary residency was granted, but before he applied for permanent residency, Petitioner was convicted of possession of cocaine, for which he received a suspended sentence. Because this conviction made Petitioner deportable under 8 U.S.C. 1251(a)(2)(B)(i), the INS initiated deportation proceedings. The INS detained Petitioner at its facility in Aurora, Colorado, from January to September 1990, pending deportation. In September 1990, the BIA ruled that an alien who has been granted temporary resident status under 1255a must have that status terminated before he can be deported. In re Medrano, Interim Decision 3138, 1990WL385765 (Bd. Immigration App.1990). Based on the BIA's decision, the INS ended the deportation proceedings against Petitioner and released him.
Meanwhile, the legalization arm of the INS had instituted proceedings to terminate Petitioner's lawful status pursuant to 8C.F.R. 245a.2(u)(2). This regulation requires the regional processing facility ("RPF") to send the alien notice of the proposed termination by certified mail directed to the alien's last known address and to give the alien an opportunity to submit evidence in opposition to the grounds alleged for termination within thirty days of service of the notice. Id. If the alien's status is terminated, the director of the RPF must notify the alien of the decision and the reasons for termination. Id. Once an alien's temporary resident status is terminated, he automatically returns to the unlawful status he held before he received the temporary resident status and is amenable to deportation or exclusion proceedings. Id. 245a.2(u)(4).
The last known address the RPF had for Petitioner was 633Sec. N. Grand, Pocatello, Idaho, and it was to this address that the RPF sent the Notice of Intent to Terminate in March 1990. See R. Vol. I at 58-59. The notice stated that Petitioner's status was going to be terminated because he had been convicted of a felony. However, Petitioner had moved from the Grand Street address at the end of 1988, but had failed to notify the INS as required by 8 U.S.C. 1303-05. Moreover, at the time the notice was sent, Petitioner had not informed the INS that he was being held at the Aurora detention facility. Consequently, Petitioner did not receive the notice and did not oppose the proposed termination of status. Likewise, Petitioner did not receive the Notice of Termination, which was sent to the Grand Street address in May 1990, and did not appeal the termination decision to the Administrative Appeals Unit.
Once Petitioner's temporary resident status was terminated, the INS reinstituted...
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Moosa v. I.N.S.
...to give the alien notice and an opportunity to respond before terminating the temporary residency. Luevano v. INS, 5 F.3d 546, 1993 WL 335750, * 1 (10th Cir.1993)(unpublished). Notification of, and reasons for, a final decision to terminate must also be provided to the alien. Id. "Once an a......