Matter of Medrano
| Decision Date | 05 February 1991 |
| Docket Number | A-29076886,Interim Decision Number 3138 |
| Parties | MATTER OF MEDRANO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated March 15, 1990, the immigration judge entered an order terminating the respondent's deportation proceedings "without prejudice to the Immigration Service to reinstitute deportation proceedings at such time as the Respondent's lawful temporary resident status has properly been terminated," and the immigration judge certified his decision to the Board pursuant to 8 C.F.R. §§ 3.1(c) and 3.7 (1990). The decision of the immigration judge will be affirmed.
The respondent is a 26-year-old native and citizen of Mexico. He entered the United States without inspection on March 25, 1980. On March 24, 1988, the respondent was granted lawful temporary resident status pursuant to section 245A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255a(a) (1988). On October 6, 1989, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) against the respondent, charging that he had been convicted of delivery of cocaine in violation of the Texas Penal Code on October 1, 1989, and that he was consequently deportable pursuant to section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1988). The respondent appeared pro se for a deportation hearing on October 24, 1989. After noting that the respondent had been granted temporary resident status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, the immigration judge asked the Service attorney to submit a brief addressing the issue of whether he had the authority to proceed to a determination of the respondent's deportability in the absence of any evidence that the respondent's temporary resident status had been terminated.
The respondent's deportation hearing was continued pending the Service's submission of a brief regarding this question. In its brief submitted to the immigration judge, the Service contended that because it has exclusive jurisdiction over applications for temporary residence pursuant to section 245A(a) of the Act, the immigration judge could not make inquiries regarding the respondent's temporary resident status and had to "proceed to the merits of the deportation proceeding." The immigration judge disagreed. He reviewed the Act's provisions concerning termination of temporary residence, as well as the regulations implementing the termination procedure, and he concluded that he could not conduct the respondent's deportation hearing until the Service established that his temporary resident status had been terminated. The immigration judge then certified his decision to the Board.
The issue which this case presents is whether the Service is required to terminate, as a condition precedent to the commencement of deportation proceedings, the lawful temporary resident status of an alien who commits a deportable offense after he has acquired temporary residence in this country. At section 245A(b)(2), the Act provides:
The Attorney General shall provide for termination of temporary resident status granted an alien under subsection (a) —
(A) if it appears to the Attorney General that the alien was in fact not eligible for such status;
(B) if the alien commits an act that (i) makes the alien inadmissible to the United States as an immigrant, except as otherwise provided under subsection (d)(2), or (ii) is convicted of any felony or three or more misdemeanors committed in the United States; or
(C) at the end of the thirty-first month beginning after the date the alien is granted such status, unless the alien has filed an application for adjustment of such status pursuant to paragraph (1) and such application has not been denied.
The respondent is charged with having been convicted of a drug-trafficking felony, and he is accordingly subject to having his temporary resident status terminated pursuant to section 245A(b)(2)(B) of the Act.
In accordance with the statutory mandate that "[t]he Attorney General shall provide for termination of temporary resident status" for specified aliens, the Service has promulgated regulations providing for the termination of an alien's temporary residence. See 54 Fed. Reg. 6504, 6511 (1989). These regulations have been codified at 8 C.F.R. § 245a.2(u) (1990).
The regulation which sets forth the procedure for the termination of temporary resident status requires that the Service issue a Notice of Intent to Terminate to the alien; that the alien be given 30 days to submit evidence in response to the termination charge; and that the Service notify the alien of an adverse decision giving reasons for that determination. 8 C.F.R. § 245a.2(u)(2) (1990). This regulation also provides that an alien may appeal an adverse decision to the Service's Administrative Appeals Unit within 30 days of the service of the termination decision. Id.; see also 8 C.F.R. § 103.3(a)(2)(i) (1990).
Furthermore, the regulations written by the Service regarding termination of temporary residence clearly contemplate that the termination process will precede the commencement of deportation proceedings against an alien:
Termination of the status of any alien previously adjusted to lawful temporary residence under section 245A(a) of the Act shall act to return such alien to the unlawful status held prior to the adjustment, and render him or her amenable to exclusion or deportation proceedings under section 236 or 242 of the Act, as appropriate.
8 C.F.R. § 245a.2(u)(4) (1990) (emphasis added).
On appeal, the Service has indicated that its present position is that a lawful temporary resident who commits an offense for which he becomes subject to deportation from the United States must have his temporary resident status terminated prior to the institution of deportation proceedings against him. By virtue of its position on appeal, the Service has removed its opposition to the decision of the immigration judge. Because the Service apparently intends to terminate, prior to the commencement of deportation proceedings, the temporary resident status of all aliens whose cases arise in the same procedural posture as the respondent's, we find no reason to disturb the immigration judge's decision in this case. Accordingly, the decision below, terminating the respondent's deportation proceedings because the Service failed to present evidence to establish that the respondent's temporary residence had been terminated, will be affirmed.
BEFORE THE BOARD
(February 5, 1991)
The Immigration and Naturalization Service has filed a motion to reconsider the Board of Immigration Appeals' decision dated September 10, 1990, in which we affirmed the immigration judge's decision. In a decision dated September 27, 1990, the Board denied the Service's motion for a 30-day stay of the execution of the decision affirming the immigration judge. The motion to reconsider will now be denied.
In a memorandum dated June 14, 1990, the Board asked the Service for its opinion concerning the issue of whether an alien who commits a deportable offense after he has acquired temporary residence can "be found deportable or deported" without his temporary resident status being terminated pursuant to section 245A(b)(2)(B) of the Act. On July 6, 1990, the Service responded to the Board's query as follows: "It is the Service position that a respondent in these circumstances must first have his temporary LPR status terminated pursuant to 8 C.F.R. Sec. 245a.2(u)." The Service did not indicate in its response that it had any disagreement with the immigration judge's decision. The Board subsequently entered the decision affirming the immigration judge's order...
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