Matter of Torres
| Citation | 19 I&N Dec. 371 |
| Decision Date | 18 April 1986 |
| Docket Number | A-22925710,A-22925711.,Interim Decision Number 3010 |
| Parties | MATTER OF TORRES. In Exclusion Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The applicants appeal from the May 1, 1984, decision of the immigration judge finding them excludable from the United States, and, therefore, denying their applications for suspension of deportation pursuant to section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1) (1982). The appeal will be dismissed.
The applicants' excludability under section 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20) (1982), is the determinative issue raised at the exclusion hearing. The fact that the applicants lacked immigrant visas when they last arrived in the United States is undisputed. However, the applicants appeal from the immigration judge's conclusion that they were properly placed in exclusion proceedings, and, therefore, were ineligible for suspension of deportation.
The parties stipulated that the applicants last arrived in the United States at Laredo, Texas, on November 30, 1978, and sought admission to resume their status as Silva aliens. See Silva v. Bell, 605 F.2d 978 (7th Cir. 1979), modifying Silva v. Bell, No. 76-C 4268 (N.D. Ill. Oct. 10, 1978). They did not present an immigrant visa or other document to permit their entrance as immigrants. They were paroled into the United States pursuant to section 212(d)(5) of the Act, because they had obtained advance parole from the district director in order to make a brief visit abroad.
Advance parole is a flexible humanitarian device rooted in the public interest. See 8 C.F.R. § 212.5(a)(2) (1986); Immigration and Naturalization Service Operations Instructions 212.5(c). Such advance parole may be granted for humanitarian reasons to aliens present in the United States, including applicants for adjustment of status whose application for adjustment is pending, and who have to depart temporarily from the United States for emergent personal or bona fide business reasons, in order that their applications for adjustment of status are not deemed abandoned. See 8 C.F.R. §§ 212.5, 245.2(a)(3) (1986); Operations Instructions 212.5(c); 1 C. Gordon and H. Rosenfield, Immigration Law and Procedure, § 2.54, at 2-368 to -375 (rev. ed. 1986).
The applicants were in the United States as applicants claiming Western Hemisphere visa availability pursuant to the Silva decision, as noted above. The male applicant had entered the United States in February of 1973, as a nonimmigrant visitor for a period not to exceed 72 hours pursuant to a Nonresident Alien Mexican Border Crossing Card (Form I-186). The female applicant had also entered as a nonimmigrant visitor allowed to remain for 72 hours pursuant to a Form I-186. Neither departed. Their deportation to Mexico had been stayed pursuant to the Silva decision. In November of 1978, while their adjustment of status application was pending, the female applicant's father in Mexico became sick. Consequently, on November 17, 1978, they applied for, and were granted, advance parole on humanitarian grounds to visit her father and return to the United States before December 2, 1978. When they returned from Mexico on November 30, 1978, the Silva injunction was still in effect. Consequently, their exclusion proceedings were held in abeyance pending allocation of the immigrant visas made available pursuant to the Silva injunction. The propriety of exclusion proceedings is determinative in this case because the applicants seek to apply for suspension of deportation, which is a form of relief from deportation unavailable to aliens in exclusion proceedings. See Matter of E----, 3 I&N Dec. 541 (BIA 1949).
It is well settled that when an alien is paroled into the United States pursuant to section 212(d)(5) of the Act and 8 C.F.R. § 212.5 (1986), pending exclusion proceedings in accordance with sections 235 and 236 of the Act, 8 U.S.C. §§ 1225 and 1226 (1986), and Parts 235 and 236 of Title 8 of the Code of Federal Regulations, he does not gain the additional protections prescribed for deportation proceedings. Rogers v. Quan, 357 U.S. 193 (1958); Leng May Ma v. Barber, 357 U.S. 185 (1958); Siu Fung Luk v. Rosenberg, 409 F.2d 555 (9th Cir. 1969); United States ex rel. Stellas v. Esperdy, 366 F.2d 266 (2d Cir. 1966); United States ex rel. Lam Hai Cheung v. Esperdy, 345 F.2d 989 (2d Cir. 1965); Wong Hing Fun v. Esperdy, 335 F.2d 656 (2d Cir. 1964); Wong Hing Goon v. Brownell, 264 F.2d 52 (9th Cir. 1959); Licea-Gomez v. Pilliod, 193 F. Supp. 577, 579-80 (N.D. Ill. 1960); United States ex rel. Tom We Shung v. Murff, 176 F. Supp. 253, 256 (S.D.N.Y. 1959); In re Milanovic's Petition, 162 F. Supp. 890, 894 (S.D.N.Y. 1957), aff'd sub nom. United States ex rel. Milanovic v. Murff, 253 F.2d 941 (2d Cir. 1958). It is similarly established that an alien properly in exclusion proceedings is not entitled to apply for suspension of deportation, despite being present in the United States on parole for an extensive period of time. Yuen Sang Low v. Attorney General, 479 F.2d 820 (9th Cir.), cert. denied, 414 U.S. 1039 (1973).
The court's injunction in Silva v. Bell, supra, has now been dissolved, after all available Western Hemisphere immigrant visas were allocated. See Sanchez-Escareno v. INS, 681 F.2d 1133 (9th Cir. 1982). Consequently, the applicants no longer derive any protection from the terms of the Silva court's injunction. The United States Court of Appeals for the Ninth Circuit has recently concluded that the Silva injunction did not exempt Silva aliens from complying with the 7 years' continuous physical presence requirement of section 244(a)(1) of the Act, even if their departure from the United States and illegal return took place prior to the Supreme Court's strict interpretation of that requirement in INS v. Phinpathya, 464 U.S. 183 (1984). See Bagues-Valles v. INS, 779 F.2d 483 (9th Cir. 1985); cf. Matter of Dilla, 19 I&N Dec. 54 (BIA 1984). Nevertheless, the applicants contend that since they had submitted applications for adjustment of status as Silva aliens on September 5, 1978, and made their sojourn to Mexico pursuant to a grant of advance parole, they should be placed in deportation proceedings where they could also submit applications for suspension of deportation. In support of this contention the applicants cite the court's decision in Joshi v. District Director, INS, 720 F.2d 799 (4th Cir. 1983), and the subsequent Patel v. Landon, 739 F.2d 1455 (9th Cir. 1984), that held that an applicant for adjustment of status returning to the United States pursuant to a grant of advanced parole is entitled to have his application for adjustment of status considered in deportation proceedings.
The issue in both the Joshi and Patel cases involved an interpretation of 8 C.F.R. § 245.2(a)(3) (1983) regarding the termination of applications for adjustment of status under the "deemed abandoned" concept. The pertinent part of 8 C.F.R. § 245.2(a)(3) (1983) then stated as follows:
The departure of an applicant [for permanent resident status under section 245 of the Act] who is not under deportation proceedings shall be deemed an abandonment of his application constituting grounds for termination thereof unless he had previously been granted permission by the Service for such absence and he was thereafter inspected upon his return, or it is determined by the officer having jurisdiction over his application that his departure was unintended or innocent and casual, that his absence was brief, and that he was inspected upon his return. If the determination reached is favorable to the applicant, the application shall be adjudicated without regard to the departure and absence. (Emphasis added.)
The Joshi and Patel cases arose outside of the jurisdiction of the United States Court of Appeals for the Fifth Circuit, where this case arises. Consequently, the applicants seek to have us apply the holdings in those cases outside of the jurisdictions of the Fourth and Ninth Circuit Courts of Appeals.1 Moreover, the applicants request that we extrapolate the holdings in Joshi and Patel from the adjustment of status area to suspension of deportation issues. The applicants contend that they should be placed in deportation proceedings so that they may submit applications for suspension of deportation. We decline to do so for the following reasons.
First, we disagree with the analysis underlying the decisions in Joshi v. INS, supra, and Patel v. Landon, supra. Both decisions erroneously assume that an alien must be placed in deportation proceedings in order to have his application for adjustment of status properly considered. The court in Joshi v. INS, supra, at 801, relied on the Supreme Court's decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), in interpreting the language in 8 C.F.R. § 245.2(a)(3) (1983), underlined above. The ...
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