Matter Of Luis CASTILLO-PADILLA, Respondent
| Decision Date | 18 June 2010 |
| Docket Number | A088 010 212,No. 3683,3683 |
| Citation | 25 I&N Dec. 257 |
| Parties | Matter of Luis CASTILLO-PADILLA, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
FOR RESPONDENT: Rodrigo Vilar, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: James T. Dehn, Appellate Counsel; Eric Aurelius, Assistant Chief Counsel
(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).
(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been "paroled into the United States" for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated January 24, 2008, an Immigration Judge found the respondent removable from the United States and denied his application for adjustment of status. The respondent has appealed from that decision. A three-member panel of the Board heard oral argument on February 4, 2010. The respondent's appeal will be dismissed.
The respondent is a native and citizen of Mexico. The Department of Homeland Security ("DHS") issued a Notice to Appear (Form I-862) on October 20, 2006, alleging that the respondent came to the United States "on or about October 15, 1999," and that he had not been "admitted or paroled after inspection by an Immigration Officer." The respondent was chargedunder section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006), as an alien who is present in the United States without being admitted or paroled. The respondent was detained at the Krome Service Processing Center and was released by the DHS on a $12,000 cash bond on November 9, 2006. He was issued a Form I-94 (Arrival-Departure Record) with a stamp indicating that he was released after posting the bond.
Before the Immigration Judge, the respondent conceded that he was removable as charged and sought to apply for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), based on his marriage to a United States citizen. The Immigration Judge denied the respondent's application for relief, finding that although he was released from custody and given a Form I-94, he had not been "paroled into the United States," as required by section 245(a) to establish eligibility for adjustment of status. Furthermore, the Immigration Judge concluded that the respondent was ineligible to adjust his status under section 245(i) of the Act because of the filing date of his visa petition.
The issue in this case is whether an alien who has been released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act, 8 U.S.C. § 1226(a) (2006), has been "paroled into the United States" for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act.
On appeal and at oral argument, the respondent conceded that he was not paroled under section 212(d)(5)(A) of the Act. However, he asserts that he received "conditional parole" under section 236(a)(2)(B) and that he is therefore eligible to adjust his status under section 245(a). The DHS argues that the respondent is not eligible for adjustment of status because his release from custody on conditional parole does not amount to being paroled into the United States. We review de novo the Immigration Judge's determination on this issue of law. 8 C.F.R. § 1003.1(d)(3)(ii) (2010); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). For the reasons set forth below, we conclude that "conditional parole" under section 236(a)(2)(B) of the Act is a distinct and different procedure from "parole" under section 212(d)(5)(A) and that the respondent is not eligible to adjust his status under section 245(a) based on his conditional parole.
Parole is described in section 212(d)(5)(A) of the Act, which provides as follows:
The Attorney General may, except as provided in subparagraph (B) or in section 214(f), in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
Conditional parole is described in section 236(a) of the Act, which provides, in pertinent part, as follows:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General
(1) may continue to detain the arrested alien; and
(2) may release the alien on
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole....
An alien paroled into the United States under section 212(d)(5) of the Act is authorized to come into the United States "temporarily" for urgent humanitarian reasons or significant public benefit and under strict conditions defining his or her status. After the purpose of the parole has been served, the alien returns to custody, and his or her case is dealt with in the same manner as any other applicant for admission.
In contrast, section 236(a) does not place any such restrictions on an alien who is released on conditional parole. The alien is merely released from detention "pending a decision on whether the alien is to be removed from the United States." Section 236(a) of the Act.
The respondent has not adequately explained how his release from custody on a $12,000 bond constitutes conditional parole. Nevertheless, even if, as he contends, he was afforded "conditional parole" under section 236(a)(2)(B) of the Act, this is not the same as "parole into the United States," so he would not be eligible for adjustment of status under section 245(a).
The respondent's argument fails based on the plain language of the statute. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (). Under section 245(a) of the Act, adjustment of status is available only to aliens who were "inspected and admitted or paroled into the United States." It is true that section 236(a)(2)(B) uses the phrase "conditional parole," but that is not the phrase used in section 245(a). Section 245(a) uses the phrase "paroled into the United States," which is identical to the language used in section 212(d)(5)(A) of the Act.
Moreover, even if the statutory provisions at issue here were considered ambiguous, we would reach the same conclusion, because interpreting a release from custody under section 236(a) to be the equivalent of "parole into the United States" under section 212(d)(5)(A) would create conflicts within the regulatory and statutory schemes. For example, the respondent's interpretation would present a conflict with section 245(i) of the Act. Congress enacted section 245(i) to permit aliens who entered the United States without inspection to adjust status, but only under certain specified conditions. If release from custody under section 236(a) were equated with parole under section 212(d)(5)(A), an unlawful entrant who was detained and released from custody on conditional parole could seek adjustment under the provisions of section 245(a), even if the restrictive eligibility requirements of section 245(i) specified by Congress could not be met. Thus, an alien released from detention would be placed in a better position as a direct result of that detention than another alien who came into the country illegally but was not detained and released. In addition, under the respondent's interpretation, aliens who were released from custody under section 236(a) would cease to accrue unlawful presence under section 212(a)(9)(B)(i) of the Act, because an alien is only deemed to be unlawfully present under section 212(a)(9)(B)(ii) if he or she is present in the United States "without being admitted or paroled." We are not persuaded that Congress intended these results. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1120 (9th Cir. 2007) ().
The regulations also support the conclusion that parole and conditional parole are distinct procedures that cannot be equated. The regulations provide that both the Attorney General and the Secretary of Homeland Security have the authority to make custody determinations under section 236(a) of the Act.
See, e.g., Matter of D-J-, 23 I&N Dec. 572, 574 n.3 (A.G. 2003); 8 C.F.R. §§ 1003.19, 1236.1(d) (2010). However, the parole authority under section 212(d)(5)(A) of the Act, which previously was exclusively delegated to the former Immigration and Naturalization Service, is now delegated solely to the Secretary of Homeland Security following the dissolution of the Service and the creation of the DHS....
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