Patel v. McElroy

• Decision Date: 30 April 1998
• Docket Number: Docket No. 97-4074
• Citation: 143 F.3d 56
• Parties: Dilipbhai Nathubhai PATEL, Petitioner, v. Edward McELROY, District Director of the Immigration and Naturalization Service of New York, and Janet Reno, Attorney General of the United States, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 56

143 F.3d 56

Dilipbhai Nathubhai PATEL, Petitioner, v. Edward McELROY, District Director of the Immigration and Naturalization Service of New York, and Janet Reno, Attorney General of the United States, Respondents.

Docket No. 97-4074.

United States Court of Appeals Second Circuit.

Argued Nov. 25, 1997.

Decided April 30, 1998.

Jules E. Coven, New York City, for Petitioner.

Diogenes P. Kekatos, Assistant U.S. Attorney for Southern District of New York, New York City (Mary Jo White, U.S. Attorney, James A. O'Brien III, Special Assistant U.S. Attorney, Steven M. Haber, Assistant U.S. Attorney, New York City, on brief), for Respondents.

Before: WALKER, JACOBS, Circuit Judges, and BRIEANT, District Judge. ^*

JOHN M. WALKER, Jr., Circuit Judge:

Petitioner Dilipbhai Nathubhai Patel ("Patel") appeals from the March 17, 1997 decision of the Board of Immigration Appeals ("BIA") affirming the November 13, 1995 decision of the Immigration Judge ("IJ")(Sarah M. Burr, Immigration Judge ) denying Patel's application for suspension of deportation under former section 244(a)(1) of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1254(a)(1) (1996) (amended September 30, 1996) ("section 244(a)(1)"). The sole basis for the BIA's conclusion was that suspension of deportation under that section is not available in exclusion proceedings.

This case presents a narrow issue of statutory construction: whether suspension of deportation under former section 244(a)(1) is available in exclusion as well as in deportation proceedings. We hold that suspension of deportation under this section is not available in exclusion proceedings. However, we note that this holding applies only to aliens who were placed into proceedings before April 1, 1997, the effective date of section 304(a)(3) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-594 ("IIRIRA"), 8 U.S.C. § 1229b(b)(1), which replaced former section 244(a)(1). ¹

Affirmed.

Background

Patel is a native of India who entered the United States from Canada in 1981 without inspection. Since that time, he has resided continuously in the United States, making six trips abroad of approximately 30 days each. In July 1990, Patel traveled to England for one month and obtained British citizenship. On February 17, 1994, Patel traveled to India to visit his ill father, returning to the United States on March 22, 1994. Because Patel sought to reenter the United States with no visa or other documentation authorizing his admission, the Immigration and Naturalization Service ("INS") made an initial determination that Patel was excludable under 8 U.S.C. § 1182(a)(7)(A)(i)(I), which provides that, "[e]xcept as otherwise specifically provided ... any immigrant at the time of application for admission who is not in possession of a valid unexpired immigrant visa, reentry permit" or other suitable travel document is excludable. The INS then paroled Patel into the United States pending exclusion proceedings. At a December 21, 1994 hearing, the IJ found Patel to be excludable under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

Patel then filed an application for suspension of deportation under section 244(a)(1). On November 13, 1995, the IJ in a written opinion held that aliens in exclusion proceedings were eligible to apply for suspension of deportation under this section, but denied Patel's suspension application on the merits based on his failure to meet other substantive requirements of section 244(a)(1). Specifically, the IJ found that Patel's acquisition of British citizenship during one of his trips abroad barred him from taking advantage of the suspension provision. The IJ then ordered Patel excluded from the United States. Before the BIA, Patel appealed the IJ's denial of suspension relief and the INS appealed the IJ's finding of eligibility for suspension. On March 17, 1997, in a one-paragraph per curiam opinion, the BIA held that Patel was properly excludable from the United States for lack of valid documentation and that he was ineligible to apply for suspension on the sole ground that suspension under section 244(a)(1) was available only in deportation, not exclusion proceedings. Patel then filed a petition for review before this court, solely on the issue of whether aliens in exclusion proceedings are eligible for suspension of deportation under section 244(a)(1).

Discussion

I. The Statutory Scheme

Patel claims that, as a result of a 1986 amendment to the INA, aliens in exclusion proceedings became eligible for suspension of deportation under section 244(a)(1). Section 244(a)(1)--entitled "Suspension of deportation"--provided in relevant part that:

the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien ... who applies to the Attorney General for suspension of deportation and is deportable under any law of the United States ...; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1254(a)(1) (1996) (amended September 30, 1996) (emphasis added). It is undisputed that, prior to 1986, aliens could apply for suspension under this section in deportation but not in exclusion proceedings. See Landon v. Plasencia, 459 U.S. 21, 26-27, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982) ("[T]he alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding ... [including the right to] seek suspension of deportation."); Ramirez-Durazo v. INS, 794 F.2d 491, 496-97 & n. 2 (9th Cir.1986) ("An alien in deportation proceedings is entitled to certain procedural protections and substantive rights not available in an exclusion proceeding ... . [including the right to] seek suspension of deportation, INA § 244(a)(1), 8 U.S.C. § 1254(a)(1).").

In 1984, the Supreme Court held that an alien who, three years prior to the commencement of deportation proceedings, had left the United States for three months could not apply for suspension pursuant to section 244(a)(1) because that departure interrupted her otherwise continuous physical presence in the United States. See INS v. Phinpathya, 464 U.S. 183, 189-90, 104 S.Ct. 584, 589-90, 78 L.Ed.2d 401 (1984). In 1986, Congress relaxed the effect of this decision in an amendment to the INA altering the definition of "continuous" physical presence in section 244(b)(2), providing that:

[a]n alien shall not be considered to have failed to maintain continuous physical presence in the United States under [INA §§ 244(a)(1) and (2) ] if the absence from the United States was brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence.

Immigration Reform and Control Act of 1986 § 315(b), Pub.L. No. 99-603, INA § 244(b)(2), 8 U.S.C. § 1254(b)(2) (1996)("section 244(b)(2)").

II. Statutory Interpretation of Section 244(a)(1)

Patel contends that, as a result of this amendment, aliens in exclusion proceedings became eligible for suspension of deportation under section 244(a)(1). He notes first that section 244(b)(2) did not itself distinguish between exclusion and deportation proceedings. Patel claims that section 244(b)(2) preserved eligibility for suspension relief for an otherwise eligible alien who had been briefly absent from the United States and that "the returning alien is considered to have always been 'in the United States' for the purposes of preserving and establishing eligibility for suspension of deportation, notwithstanding his brief absences from this country." Because Congress permitted illegal aliens to make "brief, casual, and innocent" departures without violating the continuous physical presence requirement of section 244(a)(1), Patel argues, it would have been illogical to deny section 244(a)(1) suspension-eligibility only to those aliens placed into exclusion proceedings after a failed re-entry at the border, but to afford eligibility to those aliens placed in deportation proceedings either because (i) they made a successful (and usually undocumented) re-entry into the United States, or (ii) they never made the brief departure contemplated by section 244(b)(1). Patel concludes that, because returning aliens under section 244(b)(1) were considered never to have broken their continuous physical presence in the United States, their only "entry" into the United States within 8 U.S.C. § 1101(a)(13) (1996) was their original entry pre-dating any brief departures from the United States, and therefore upon return from brief departures such aliens were already within the United States and properly subject to "deportation" and not "exclusion" proceedings. We disagree.

We note first that one post-1986 Second Circuit case has observed that suspension of deportation is not available in exclusion proceedings. See Correa v. Thornburgh, 901 F.2d 1166, 1171 n. 5 (2d Cir.1990) ("Rights available in deportation but not exclusion include ... the right to seek suspension of the order ...."). In fairness to Patel, however, Correa did not squarely address the statutory argument before us and the above-mentioned language was not necessary to the holding. We therefore turn to the merits of Patel's argument.

As a preliminary matter, Patel was properly placed into an exclusion proceeding upon his return to the United States from India. We note that "[e]xclusion proceedings determine whether...