De Oliveira v. USINS

• Decision Date: 20 April 1994
• Docket Number: No. CV 93-0624-TJH(GHK).,CV 93-0624-TJH(GHK).
• Citation: 873 F. Supp. 338
• Court: U.S. District Court — Central District of California
• Parties: Shirley Maria DE OLIVEIRA, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

873 F. Supp. 338

Shirley Maria DE OLIVEIRA, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. CV 93-0624-TJH(GHK).

United States District Court, C.D. California.

April 20, 1994.

Wade J. Chernick, Encino, CA, for petitioner.

U.S. Department of Justice, Patrick Walsh, Asst. U.S. Atty., Los Angeles, CA, for respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

HATTER, District Judge.

Pursuant to 28 U.S.C. § 636, the court has reviewed the petition, all of the records and files herein, and the attached Report and Recommendation of the United States Magistrate Judge. The court, having conducted a de novo review of the Magistrate Judge's Report and Recommendation to which Objections were interposed, approves and adopts the Magistrate Judge's findings, conclusions, and recommendations.

IT IS HEREBY ORDERED as follows:

(1) the petition for writ of habeas corpus is GRANTED;

(2) respondent's order of exclusion is VACATED; and

(3) respondent shall restore petitioner to whatever status she was entitled without regard to her 1991 trip to Brazil.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation, and the Judgment herein by United States mail on the petitioner and on the United States Attorney for the Central District of California.

JUDGMENT

Pursuant to the Order of the court adopting the findings, conclusions, and recommendations of the United States Magistrate Judge,

IT IS HEREBY ADJUDGED as follows:

(1) the petition for writ of habeas corpus is GRANTED;

(2) respondent's order of exclusion is VACATED;

(3) respondent shall restore petitioner to whatever status she was entitled without regard to her 1991 trip to Brazil.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KING, United States Magistrate Judge.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636 and General Order No. 194 of the United States District Court for the Central District of California.

Background

In November, 1981, petitioner entered the United States as a tourist, but subsequently accepted work without authorization. In 1988, she applied for legalization under the amnesty provision of 8 U.S.C. § 1255a. While awaiting a final decision on her legalization application, petitioner learned that her mother was ill and required surgery of the spinal column to decompress the sciatic nerve. Her mother lives in Brazil.

Petitioner attempted to obtain advance parole from the Immigration and Naturalization Service (the "INS") to allow her to go to Brazil to tend to her mother. Despite her attempts,¹ petitioner was unable to obtain advance parole authorization. She flew to Brazil on November 7, 1991. According to counsel's representation, petitioner left her young child in the United States during her Brazilian trip. Her mother underwent surgery a day or so after petitioner's arrival in Brazil.

Petitioner had purchased an airline ticket with a return date of November 24, 1991. However, due to an airline strike, she was unable to return at that time. Thereafter, she was deemed medically unfit to travel because of the late stages of her pregnancy.² She returned to the United States on March 6, 1992, after the birth of her child.³ Because she did not have valid entry documents, she was paroled into the United States and placed in exclusion proceedings.

On July 1, 1992, an Immigration Judge (IJ) ordered petitioner excluded from the United States. On December 4, 1992, the Board of Immigration Appeals (BIA) affirmed the IJ's decision. Thereafter, petitioner filed this habeas petition. Respondent has filed its opposition, and both sides have filed supplemental briefs. We have held hearings on the petition. At the June 22, 1993 hearing, respondent's counsel stated that the INS does not challenge the accuracy or credibility of petitioner's factual allegations or counsel's representations at the hearing. Accordingly, we accept the factual allegations and representations as true for purposes of these proceedings.

Discussion

The ultimate issue before this court is whether petitioner was properly subject to exclusion upon her return to the United States because she departed without advance parole. In deciding this issue, we must determine whether the INS' regulations interpreting relevant provisions of the Immigration Reform and Control Act of 1986 are valid.

I. Rules of Statutory Construction

In reviewing the INS' interpretation of the statute, we are confronted with two questions. First, we must determine whether Congress has directly spoken on the precise issue at hand. If, using traditional tools of statutory construction, we conclude that Congress had an intention on the precise issue at hand, that is the end of the matter because the court and the INS must give effect to that expressed Congressional intent. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). We need not defer to agency interpretation. We merely determine whether the regulations give effect to the unambiguously expressed intent of Congress. Id.

Second, if Congress has not directly addressed the issue at hand, either by clear statutory language or legislative history, our inquiry is whether the INS' regulations are based on a permissible construction of the statute. At this point, we review the agency's interpretation deferentially and do not substitute our judgment in place of a reasonable interpretation by the agency. See Id. at 843-44, 104 S.Ct. at 2782-83.

The traditional tools of statutory construction require us to apply the plain meaning rule to the statutory language.⁴ If the statutory language is clear and unambiguous, we look to legislative history only to determine whether there is "clearly expressed legislative intention" contrary to the plain language of the statute. INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987). But, if the statutory language is not clear and unambiguous, we look to legislative history for guidance. See Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir.1985).

II. Immigration Reform and Control Act of 1986

A. Continuous Physical Presence

The statutory scheme directs the Attorney General to adjust the status of an alien to that of a lawfully admitted temporary resident alien if he or she meets certain requirements. In addition to the filing of a timely application, the alien must show that, inter alia, he "has been continuously physically present in the United States since November 6, 1986." 8 U.S.C. § 1255a(a)(3)(A) (the continuous physical presence requirement). The statute does not contain limiting language which provides that this requirement ceases to exist upon the filing of the amnesty application. To the contrary, the use of the word "since" without prior or subsequent modification indicates that Congress required the alien to maintain continuous physical presence from November 6, 1986 until his status is adjusted by the Attorney General.⁵

The scope of this continuous physical presence requirement is made even clearer when compared with the preceding subparagraph of the statute which provides that "the alien must establish that he entered the United States before January 1, 1982, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection." 8 U.S.C. § 1255a(a)(2)(A) (the continuous unlawful residency requirement). (Emphasis added). The statute specifically limits this requirement to pre-application persons.⁶

In light of the foregoing, we cannot conclude that Congress merely forgot to include a similar limitation in the continuous physical presence requirement. Congress' use of different language between the provisions of the continuous unlawful residency requirement and those of the continuous physical presence requirement demonstrates clearly that it did not intend to limit the application of the continuous physical presence requirement to pre-application persons. See Cardoza-Fonseca, 480 U.S. at 432, 107 S.Ct. at 1213 (Congress generally presumed to have acted intentionally and purposely when particular language of one section of statute is omitted from another section of the same Act).

Congress knew when it wanted to limit its requirements and when it did not want to do so. We conclude that the statute clearly and unambiguously requires continuous physical presence from November 6, 1986 to the date the application is approved, except for brief, casual and innocent absences occurring at any time during that interim.⁷

Because the statutory language is clear and unambiguous, we must determine whether the regulations give effect to the expressed statutory intent. We conclude that they do not.

At oral argument, respondent's counsel conceded that by regulations, the INS has devised a scheme which treats persons who had applied, but had not received approval, for amnesty (post-application) differently from those who had yet to apply for amnesty (pre-application).

The INS' regulation at 8 C.F.R. §§ 245a.1(f) defines the statutory continuous physical presence requirement as "actual continuous presence in the United States since November 6, 1986 until filing of any application for adjustment of status." 8 C.F.R. § 245a.1(f) (1993). (Emphasis added). By adding the emphasized phrase, this regulation undercuts the statutory continuous physical presence requirement by terminating its effect at the time of the filing of the amnesty application, thereby denying post-application persons the benefit of the statutory brief, casual and innocent absence provision.⁸ Because this regulation limits that which the statute has specifically left unlimited, it is contrary to the clear intent of the statute and is...