Marie Therese Halim v. United States Atty. General, Immigration and Naturalization Service ( 2003 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 01-16153 and 02-13474 JUNE 5, 2003
________________________ THOMAS K. KAHN
CLERK
INS Docket No. A23-524-000
MARIE THERESE HALIM ASSA'AD,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
________________________
Petitions for Review of Final Orders of
the Board of Immigration Appeals
_________________________
(June 5, 2003)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
ANDERSON, Circuit Judge:
This case comes to us on petition for review of an order of exclusion by the
Immigration and Naturalization Service ("INS"). Petitioner, Marie Therese Halim
Assa'ad-Faltas ("Faltas"), argues that she was improperly placed in exclusion
proceedings rather than deportation proceedings. While Faltas had an application
for legalization pending under § 245A(a) of the Immigration and Nationality Act,1
8 U.S.C. § 1255a(a), she departed the United States with advance parole from the
INS. Following her return, Faltas's legalization application was denied, her parole
status revoked, and exclusion proceedings against her commenced. Faltas argues
that her return to the United States following a brief departure while her
legalization application was pending did not constitute an "entry" and did not
interrupt her status or deprive her of the right to deportation proceedings, rather
than exclusion proceedings.
I. BACKGROUND
A. Factual Background
Faltas is a native and citizen of Egypt. She entered the United States in 1979
as an exchange visitor.2 Although her authorized stay expired in May of 1982,
1
Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101et seq.) ("INA" or "Act").
2
INA § 101(a)(15)(J), 8 U.S.C. § 1101(a)(15)(J).
2
Faltas remained in the country until September of 1983, when she departed for
Egypt. Three months later, she re-entered the United States as a temporary visitor
for pleasure3 authorized to stay for six months. Faltas remained in the country for
nearly six years.
On June 22, 1988, Faltas filed an application for adjustment of status under
INA § 245, 8 U.S.C. § 1255. She applied to have her status adjusted to that of an
alien lawfully admitted for permanent residence as the unmarried daughter of a
lawful permanent resident. This application was denied on October 27, 1988, for
working without employment authorization4 and for failure to satisfy the
admissibility requirement of INA § 245(a).5 Having been admitted as an exchange
visitor in 1979, Faltas was ineligible for an immigrant visa or for permanent
residence status until she either resided in Egypt for at least two years following
3
8 U.S.C. § 1101(a)(15)(B).
4
An alien is ineligible for adjustment under § 245 if she "continues in or accepts
unauthorized employment prior to filing an application . . . or . . . is in unlawful immigration
status on the date of filing the application . . . ." INA § 245(c), 8 U.S.C. § 1255(c) (1989).
5
"The status of an alien who was inspected and admitted or paroled into the United
States . . . may be adjusted by the Attorney General . . . to that of an alien lawfully
admitted for permanent residence if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is filed."
INA § 245(a), 8 U.S.C. § 1255(a) (2002).
3
her stay in the United States or obtained a waiver of this requirement.6
On May 4, 1988, Faltas filed an application for legalization under INA §
245A(a), 8 U.S.C. § 1255a(a). This application was denied on January 18, 1990.
The denial of her application was affirmed on administrative appeal on February
17, 1992. On September 29, 1989, while Faltas's legalization application was
pending, Faltas was granted advance authorization for parole. Faltas departed the
United States for Canada on October 27, 1989, returning on October 29.
In June of 1992, Faltas filed another application for adjustment of status
under § 245 as the unmarried daughter of a United States citizen, her mother
having naturalized. The INS has no record of this application, apparently having
lost it.
B. Procedural History
On November 5, 1991, the INS commenced exclusion proceedings against
6
"No person admitted under section 101(a)(15)(J) [the exchange visitor provision] .
. . shall be eligible to apply for an immigrant visa, or for permanent residence . . .
until it is established that such person has resided and been physically present in
the country of his nationality or his last residence for an aggregate of at least two
years following departure from the United States: Provided . . . [t]hat . . . the
Attorney General may, upon the favorable recommendation of the Director, waive
such two-year foreign residence requirement in any case in which the foreign
country of the alien's nationality or last residence has furnished the Director a
statement in writing that it has no objection to such waiver in the case of such
alien."
INA § 212(e), 8 U.S.C. § 1182(e).
4
Faltas. She was charged with being excludable at the time she returned from her
trip to Canada for lack of valid travel and entry documents. See former INA §
212(a)(20), 8 U.S.C. § 1182(a)(20) (1989).7 The immigration judge ("IJ")
terminated the exclusion proceedings on December 13, 1995, finding that Faltas's
1989 departure was brief, casual, and innocent. Relying on Joshi v. INS, 720 F.2d
799 (4th Cir. 1983), the IJ concluded that Faltas was entitled to deportation
proceedings. The IJ also concluded that the employment authorization extended to
Faltas constituted a de facto extension of her parole status. On December 20, 1996,
the Board of Immigration Appeals ("BIA" or "Board") vacated the termination
order. The BIA held that the regulations relied upon in Joshi pertained to
applicants for adjustment of status and, regardless, that those regulations were
superseded by subsequent amendment. The BIA also held that work authorization
does not constitute an extension of parole status.
On remand, the IJ found Faltas excludable under INA § 212(a)(7)(A)(i)(I).8
The only relief from exclusion Faltas sought was based on her earlier applications
for adjustment of status and legalization. The IJ concluded that he did not have
7
This ground is now found at INA §§ 212(a)(7), 8 U.S.C. § 1182(a)(7).
8
"[A]ny immigrant at the time of application for admission -- who is not in
possession of a valid unexpired immigrant visa, reentry permit, border crossing identification
card, or other valid entry document required by this Act . . . is excludable." INA §
212(a)(7)(A)(i)(I) (1996).
5
jurisdiction to review the denials of Faltas's legalization and adjustment
applications and ordered her exclusion on March 24, 1998. The BIA affirmed on
August 27, 2001, and denied an application for reconsideration on January 7, 2002.
Faltas appeals the order of exclusion and the denial of reconsideration. She
argues that the BIA erred in treating her as an alien seeking admission on October
29, 1989, and subjecting her to exclusion, rather than deportation, proceedings.
II. STANDARD OF REVIEW
Because the exclusion proceedings against Faltas were commenced before
April 1, 1997, and the final exclusion order was entered more than thirty days after
September 30, 1996, our jurisdiction is governed by the transitional rules found in
§ 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009, as amended ("IIRIRA") (reprinted in 8
U.S.C.A. § 1101 (historical notes)). See Al Najjar v. Ashcroft, 257 F.3d 1262,
1276-77 (11th Cir.), reh'g, en banc, denied, 275 F.3d 1085 (2001). Under the
IIRIRA transitional rules, we apply the provisions of former INA § 106, 8 U.S.C. §
1105a (1996), except for subsection (b) of that section (providing for habeas corpus
review of exclusion orders), as well as INA § 242(g), 8 U.S.C. § 1252(g) (exclusive
jurisdiction provision). See IIRIRA §§ 306(c)(1), 309(c)(4); Al Najjar, 257 F.3d at
6
1277 n.4.
Our review is based on the administrative record. We will uphold findings
of fact if they are "supported by reasonable, substantial, and probative evidence on
the record considered as a whole." INA § 106(a)(4), 8 U.S.C. § 1105a(a)(4)
(1996); Al Najjar, 257 F.3d at 1283-84. We review questions of law de novo,
McNary v. Hatian Refugee Ctr., Inc., 498 U.S. 479, 493, 111 S.Ct. 888, 897 (1991),
with appropriate deference to the BIA's reasonable interpretation of the Act. INS v.
Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 1445 (1999). We will defer to
the BIA's construction of the Act "if the statute is silent or ambiguous with respect
to the specific issue before [us]" and the BIA's interpretation "is based on a
permissible construction of the statute." Id. (quotations and citations omitted). We
defer to the INS's interpretation of its own regulations unless that interpretation is
"plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S.
452, 461, 117 S.Ct. 905, 911 (1997) (quotation and citation omitted).
III. REGULATORY OVERVIEW
A. Parole
Before IIRIRA took effect, the procedure by which an alien was removed
7
from the United States turned on the physical location of the alien.9 Aliens
physically present in the United States were subject to deportation proceedings.
See, e.g., former INA § 241(a), 8 U.S.C. § 1251(a) (1996) (providing grounds for
deporting "[a]ny alien in the United States"). Aliens arriving at the border were
subject to exclusion proceedings. See, e.g., former INA § 212(a), 8 U.S.C. §
1182(a) (1996) (providing grounds for excluding aliens "from admission into the
United States").10
An exception to this geography-based system was parole. Congress has
granted the Attorney General the discretion to
"parole into the United States temporarily . . . any alien applying for
admission to the United States, but such parole 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."
INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A) (2002). The Attorney General has
9
The substantial differences between deportation and exclusion proceedings are
noted in Landon v. Plasencia, 459 U.S. 21, 25-27, 103 S.Ct. 321, 325-26 (1982).
10
The distinction now turns on status rather than location. All aliens are subject to
removal proceedings, INA § 240, 8 U.S.C. § 1229a, but an alien in the United States who has
been admitted is subject to deportability grounds, see INA § 237(a), 8 U.S.C. § 1227(a), while an
alien who has not, regardless of his or her location, is subject to inadmissibility grounds, INA §
212(a), 8 U.S.C. § 1182(a).
8
established regulations delegating and implementing this grant of discretion. See 8
C.F.R. § 212.5. In addition to establishing various criteria for granting parole to
arriving aliens, § 212.5 allows the INS to grant advance authorization for parole to
an alien who has not yet, but will, travel to the United States without a visa. 8
C.F.R. § 212.5(f). Commonly called "advance parole," this administrative device is
described by the BIA as
"a mechanism by which a district director can, as a humanitarian
measure, advise an alien who is in this country, but who knows or
fears that he will be inadmissible if he leaves and tries to return, that
he can leave with assurance that he will be paroled back into the
United States upon return . . . ."
In re G-A-C-, 22 I. &. N. Dec. 83, 88 (BIA 1998) (en banc). When the conditions
under which parole is granted expire or parole is otherwise revoked, the paroled
alien is subject to exclusion proceedings. INA § 212(d)(5)(A), 8 U.S.C. §
212(d)(5)(A) ("parole shall not be regarded as admission of the alien"); 8 C.F.R. §
212.5(e)(2) (upon termination of parole, the alien "shall be restored to the status
that he or she had at the time of parole"); Sale v. Haitian Ctrs. Council, 509 U.S.
155, 159, 133 S.Ct. 2549, 2552 (1993) ("Aliens arriving at the border, or those who
are temporarily paroled into the country, are subject to an exclusion hearing . . . .");
Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 1074 (1958); Jean v.
Nelson, 727 F.2d 957, 969 (11th Cir. 1984) (en banc), aff'd, 472 U.S. 846, 105
9
S.Ct. 2992 (1985) (Parolees "can claim no greater rights or privileges under our
laws than any other group of aliens who have been stopped at the border."); Matter
of Torres, 19 I. & N. Dec. 371, 373 (BIA 1986) ("It is well settled that when an
alien is paroled into the United States pursuant to section 212(d)(5) of the Act . . .
he does not gain the additional protections prescribed for deportation
proceedings.").
B. Legalization
Faltas applied for legalization under INA § 245A, 8 U.S.C. § 1255a, enacted
as part of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603,
100 Stat. 3359 (1986) ("IRCA"). IRCA was "a major statutory response to the vast
tide of illegal immigration that had produced a 'shadow population' of literally
millions of undocumented aliens in the United States." McNary, 498 U.S. at 481,
111 S.Ct. at 890. IRCA provided immigration amnesty for certain classes of
unlawful residents, coupled with stiffened immigration enforcement. Id. at 481-83,
111 S.Ct. at 891. INA § 245A(a) is one of these amnesty programs. It requires the
Attorney General to adjust the status of an applicant to that of an alien lawfully
admitted for temporary residence if the alien meets four requirements. These
requirements are timely application, continuous unlawful residence, continuous
physical presence, and admissibility as an immigrant. INA § 245A(b) provides for
10
the later adjustment of the alien's status to that of an alien lawfully admitted for
permanent residence.
To encourage unlawful residents to apply for legalization, applications are
confidential and information provided in a legalization application cannot be used
as the basis for deportation proceedings. INA § 245A(c)(4), (c)(5). Until "a final
determination on [a legalization] application has been made," an applicant who has
demonstrated prima facie eligibility for legalization cannot be deported, §
245A(e)(2)(A), and is entitled to employment authorization, § 245A(e)(2)(B).
The immigration status of an eligible applicant will be adjusted to that of an
alien lawfully admitted for temporary residence. INA § 245A(a) ("The Attorney
General shall adjust the status of an [eligible] alien . . . .") (emphasis added). A
temporary resident is entitled to apply for permanent resident status under §
245A(b)(1); is authorized to travel temporarily abroad under § 245A(b)(3)(A); and
is entitled to work authorization under § 245A(b)(3)(B). Temporary residents
obtain immigration benefits for their immediate families, as well; any spouse and
unmarried children of the alien are protected from deportation on certain grounds,
and may also obtain work authorization. See § 301 of the Immigration Act of 1990
("1990 Act"), Pub. L. No. 101-649, 104 Stat. 4978, 5029 (1990). A limited number
of immigrant visas were also made available for these immediate family members,
11
see § 112 of the 1990 Act.
The immigration status of a successful applicant under § 245A(b)(1) will be
further adjusted to that of a lawful permanent resident. INA § 245A(b)(1) ("The
Attorney General shall adjust the status of any [eligible] alien" to that of a lawful
permanent resident) (emphasis added). These aliens, who have twice demonstrated
eligibility for the amnesty provisions extended by IRCA, are afforded the most
protected status under the immigration laws, and may eventually be eligible for
naturalization. See INA § 316; see also Kim v. Ziglar, 276 F.3d 523, 528 (9th Cir.
2001) (noting that the benefits of lawful permanent residence include the right to
work, without limitation, in the United States and to reside permanently in the
country). Many grounds of exclusion (now inadmissibility) and deportation (now
removability) are waivable only for lawful permanent residents or the for the
relatives of citizens and lawful permanent residents. See generally INA §§ 212(a)
(grounds of inadmissibility), 237(a) (grounds of removability). Until 1996, lawful
permanent residents with seven consecutive years of domicile returning from a
voluntary departure could be readmitted even if excludable under most grounds of
the Act, though this provision was repealed by IIRIRA. See former INA § 212(c),
8 U.S.C. § 1882(c) (repealed September 6, 1996). The INS can waive travel
document requirements for lawful permanent residents returning from a temporary
12
absence. See INA § 211(b); 8 C.F.R. § 211.4.
INA § 245A(f)(3) requires the Attorney General to establish "a single level
of administrative appellate review" of denials of applications for legalization.
Administrative appeal is made to the Administrative Appeals Unit ("AAU"). 8
C.F.R. § 245a.2(p). Immigration courts do not have jurisdiction to review the
denial of an application for legalization. In re Singh, 21 I. & N. Dec. 427, 433
(BIA 1996) (en banc). Limited judicial review of a denial is provided in INA §
245A(f)(4)(A).11 Judicial review is only allowed in the course of reviewing a
deportation order. There is no provision for judicial review of a denied application
in reviewing an exclusion order. See Espinoza-Gutierrez v. Smith, 94 F.3d 1270,
1278 (9th Cir. 1996).
C. The Fleuti Doctrine
In the pre-IIRIRA era, important immigration provisions were keyed to an
alien's "entry." Entry was defined as
"any coming of an alien into the United States . . . except that an alien
having a lawful permanent residence in the United States shall not be
regarded as making an entry into the United States for purposes of the
immigration laws if . . . his departure . . . was not intended or
reasonably to be expected by him . . . ."
11
"There shall be judicial review of such a denial only in the judicial review of an
order of deportation under [former] section 106 [8 U.S.C. § 1105a (1996)]." INA §
245A(f)(4)(A), 8 U.S.C. § 1255a(f)(4)(A).
13
See former INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1996). An alien's entry had
consequences for the procedures used to remove the alien from the country and on
the substantive grounds of deportability forming the basis of a removal. See, e.g.,
former INA § 241, 8 U.S.C. § 1251 (1996), subparagraphs (a)(1)(A) (alien
deportable if excludable at time of entry) and (a)(1)(B) (alien deportable if entered
without inspection).
The Supreme Court construed the intent exception to the definition of entry
in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804 (1963). Fleuti, a permanent
resident alien, visited Mexico for a couple of hours. Following his return, the INS
initiated deportation proceedings against him on the ground that he was deportable
by reason of having been excludable at the time of his entry. 12 The Court held that
this deportability ground did not apply, because Fleuti did not "enter" upon his
return from Mexico. An intentional departure was construed as requiring "an intent
to depart in a manner which can be regarded as meaningfully interruptive of the
alien's permanent residence." Id. at 462, 83 S.Ct. at 1812. The Court held that "an
innocent, casual, and brief excursion by a resident alien beyond this country's
borders may not have been 'intended' as a departure." Id. Return from such an
12
Former INA § 241(a)(1), 8 U.S.C. § 1251(a)(1) (1956). The excludability ground
was being "affected with psychopathic personality." See former INA § 212(a)(4), 8 U.S.C. §
1182(a)(4) (1956). This ground of excludability was not an independent ground of deportability.
14
excursion would not be an "entry."
IV. DISCUSSION
Faltas admits that an alien paroled into the United States is generally subject
to exclusion proceedings when parole is revoked. She contends, however, that,
whether or not she obtained advance parole, return to the United States after a
"brief, casual, and innocent departure" while a legalization application is pending
does not constitute an "entry" under former INA § 101(a)(13). She relies on the
Fleuti doctrine, which she contends is codified in INA § 245A(a)(3)(B).
A. Legalization Applicants and the Fleuti doctrine
Faltas argues that INA § 245A(a)(3)(B) codifies the Fleuti doctrine for
legalization applicants. Because the IJ found that her trip to Canada was "brief,
casual and innocent," she contends that she did not "enter" the United States on
October 29, 1989, and therefore was not subject to exclusion proceedings. See
Plasencia, 459 U.S. at 28, 103 S.Ct. at 327 ("only 'entering' aliens are subject to
exclusion"). Faltas relies heavily on the decision of our sister Circuit in Espinoza-
Guiterrez v. Smith, 94 F.3d 1270 (9th Cir. 1996). That court held that §
245A(a)(3)(B) is ambiguous with respect to its effect on the "entry" of legalization
applicants, Espinoza, 94 F.3d at 1275-76, but that the INS has reasonably
15
interpreted the statute as modifying "entry." Id. at 1276.
1. The Statute
The first question we ask in construing this statute is whether "the statute is
silent or ambiguous with respect to the specific issue." Aguirre-Aguirre, 526 U.S.
at 424, 119 S.Ct. at 1445. The specific issue is whether Congress created an intent
exception to the entry definition for legalization applicants.
When construing the meaning of a statute, we begin with the language
Congress has chosen and assume that the words used are intended to carry their
ordinary meaning. INS v. Phinpathya, 464 U.S. 183, 189, 104 S.Ct. 584, 589
(1984). When Congress uses language with a well-known legal meaning, however,
we generally presume that it was aware of and intended the statute to incorporate
that understood meaning. Cf. Lorillard v. Pons, 434 U.S. 575, 583, 98 S.Ct. 866,
871 (1978); Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250
(1952).
(a) Plain Language
The statute allowing certain classes of unlawfully present aliens to adjust to
temporary resident status is framed in terms of eligibility. See INA § 245A(a) (an
alien's status shall be adjusted "if the alien meets the following requirements:")..
The four eligibility requirements are: (1) timely application, (2) continuous
16
unlawful residence since November 6, 1982, (3) continuous physical presence
since November 6, 1986, and (4) admissibility as an immigrant. The third
requirement, the continuous physical presence requirement, requires the alien to
"establish that the alien has been continuously physically present in the United
States since November 6, 1986." § 245A(a)(3)(A).13 Subparagraph (a)(3)(B)
allows an for an exception to the requirement: "[a]n alien shall not be considered to
have failed to maintain continuous physical presence in the United States for the
purposes of subparagraph (A) by virtue of brief, casual, and innocent absences
from the United States." The plain language of this subparagraph expressly limits
the effect of the exception to the eligibility requirement of subparagraph (a)(3)(A).
The applicant "shall not be considered to have failed to maintain continuous
physical presence in the United States for purposes of subparagraph (A)" because
of a brief, casual, and innocent absence. (Emphasis added). The statute speaks
13
(A) In general. The alien must establish that the alien has been continuously
physically present since November 6, 1986.
(B) Treatment of brief, casual, and innocent absences. An alien shall not be
considered to have failed to maintain continuous physical presence in the United
States for purposes of subparagraph (A) by virtue of brief, casual, and innocent
absences from the United States.
(C) Admissions. Nothing in this section shall be construed as authorizing an alien
to apply for admission to, or to be admitted to, the United States in order to apply
for adjustment of status under this subsection.
INA § 245A(a)(3).
17
only in terms of eligibility for legalization, and makes no reference to entry. 14
In § 245A(b)(3)(A), Congress addressed the issue of travel abroad by
applicants for legalization who have successfully completed the legalization
process under § 245A(a) and have already attained lawful temporary resident
status.15 That subparagraph directs the Attorney General to devise regulations
allowing a legalized alien to return from travel abroad during his or her period of
temporary residence under certain circumstances, namely, "after such brief and
casual trips abroad as reflect an intention on the part of the alien to adjust to lawful
14
Indeed, if the statutory language in § 245A(a)(3)(B) does not limit the application
of the Fleuti factors to eligibility requirements, it is difficult to imagine how Congress could have
so limited them. One way to emphasize this point is to assume that the chosen language is
ambiguous, then attempt to draft statutory language that would be unambiguous. For example,
the statute could say, "for purposes of subparagraph (a) and for no other purpose," or "for
purposes of subparagraph (a) but not section 101(a)(13)." This would be even clearer, but the
added language only emphasizes a restriction already present. A reasonable reader would
understand these additional limitations to be redundant. This indicates that the chosen statutory
language is unambiguous.
15
INA § 245A(b)(3) provides, in relevant part:
Authorized travel and employment during temporary residence. During the period
an alien is in lawful temporary resident status granted under subsection (a) -- (A)
Authorization for travel abroad. The Attorney General shall, in accordance with
regulations, permit the alien to return to the United States after such brief and
casual trips abroad as reflect an intention on the part of the alien to adjust to
lawful permanent resident status under paragraph (1) and after brief temporary
trips abroad occasioned by a family obligation involving an occurrence such as the
illness of death of a close relative or other family need.
18
permanent status . . . ." 16 This subparagraph is also incorporated as part of the
eligibility requirements for adjustment to lawful permanent resident status under §
245A(b)(1)(B) (continuous residence requirement). See § 245A(b)(1)(B)(ii)
(referring to subparagraph (b)(3)(A)). So, like subparagraph (a)(3)(B),
subparagraph (b)(3)(A) addresses the effect of certain absences on eligibility for
adjustment of status. Unlike subparagraph (a)(3)(B), however, subparagraph
(b)(3)(A) expressly addresses authorization for travel abroad, or, more accurately,
authorization for the INS to allow the alien to return after an absence. This express
authorization for travel abroad and return for lawful temporary residents, and the
absence of similar authorization for unlawfully present aliens who have merely
applied for legalization, is a significant indication that Congress intended to bestow
travel privileges only on lawful temporary residents. Cf. Brown v. Gardner, 513
U.S. 115, 120, 115 S.Ct. 552, 556 (1994); Central Bank of Denver, N.A. v. First
Interstate Bank of Denver, N.A., 511 U.S. 164, 184, 114 S.Ct. 1439, 1451-52
(1994) (where Congress demonstrates awareness of an issue by expressly
addressing it in one provision, silence on the issue in a similar provision is
16
The implementing regulations are found in 8 C.F.R. § 245a.2(m)(2). The INS
considers relevant the duration of the absence (30 days or less); the aggregate duration of
absences (90 days or less following approval of legalization application); whether the departure
was under deportation proceedings; and whether the alien possesses a temporary residence card,
presents him- or herself for inspection, and is otherwise admissible. Such an alien "may be
admitted to the United States on return."
19
presumed to be intentional); INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct.
1207, 1213 (1987) ("Where Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or
exclusion.") (quotation and citation omitted).
Thus, we believe that the exception for "brief, casual, and innocent
absences" in § 245A(a)(3)(B) is expressly limited to the continuous physical
presence eligibility requirement. It does not affect the generally applicable
definition of what constitutes an "entry" into the United States under former INA §
101(a)(13). We reject Faltas's argument that her return to the United States
following her brief absence was not an "entry."
(b) Espinoza
Faltas's argument relies upon the Ninth Circuit case, Espinoza-Guitterez v.
Smith, 94 F.3d 1270 (9th Cir. 1996). Consistent with the position advanced by
Faltas, the Ninth Circuit held that a legalization applicant who returns from a brief,
casual, and innocent trip abroad does not effect an "entry" upon returning to the
United States, and is not subject to exclusion proceedings upon his or her arrival.
Although the Ninth Circuit acknowledged that subparagraph (a)(3)(B) applies "[o]n
its face . . . only [to] the continuous physical presence requirement," id. at 1274,
20
and although it acknowledged that only successful legalization applicants, i.e., only
lawful temporary residents, were expressly authorized to travel abroad and return,
id. at 1275 (quoting § 245A(b)(3)(A)), the Espinoza court nevertheless held that the
statute was ambiguous, relying primarily on its conclusion that the phrase "brief,
casual, and innocent absences" indicated an intent to apply the Fleuti doctrine to
legalization applicants, or, in the language of Espinoza, an intent that subparagraph
(a)(3)(B) would "operate as a border-crossing mechanism," and "apply at the
border." Id. ("Historically, this language [from Fleuti] has been viewed as a
border-crossing mechanism.") Having determined that the statute was ambiguous
with regard to the scope of subparagraph (a)(3)(B), the court construed INS
regulations as interpreting the provision as a border-crossing mechanism, or as
applying "to legalization applicants stopped at the border." Id. at 1271. Having
concluded that the INS construed subparagraph (a)(3)(B) as applying the Fleuti
doctrine to legalization applicants stopped at the border, the court then held that
INS regulations requiring advance parole authorization for brief, casual, and
innocent absences were invalid, id. at 1277, because they were inconsistent with
"the Fleuti doctrine's purpose to circumvent entry procedures when aliens have not
intended to disrupt their United States residency." Id.
For the reasons that follow, we respectfully disagree with the reasoning of
21
the Ninth Circuit in Espinoza. First, we do not believe that Espinoza correctly read
the Supreme Court decision in Fleuti. In this regard, it is important to look at the
precise holding of Fleuti. The Court was construing the statutory definition of
"entry" in former INA § 101(a)(13).17 That definition was , for most aliens, very
strict: an entry was "any coming of an alien into the United States." (Emphasis
added.) Congress provided a limited exception, applicable only to lawful
permanent residents:
[E]xcept that an alien having a lawful permanent residence in the
United States shall not be regarded as making an entry into the United
States for the purposes of the immigration laws if the alien proves . . .
that his departure . . . was not intended or reasonably to be expected by
him . . . or was not voluntary.
Former INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (amended by IIRIRA) (emphasis
added). Specifically, the Supreme Court was concerned with the construction of
the phrase, "[a] departure . . . not intended" by the departing alien. The Court did
17
For convenience, that definition is again set forth:
The term "entry" means any coming of an alien into the United States . . . whether
voluntary or otherwise, except that an alien having a lawful permanent residence
in the United States shall not be regarded as making an entry into the United
States for the purposes of the immigration laws if the alien proves to the
satisfaction of the Attorney General that his departure . . . was not intended or
reasonably to be expected by him . . . : Provided, That no person whose departure
from the United States was occasioned by deportation proceedings, extradition, or
other legal process shall be held to be entitled to such exception.
This is the same entry definition applicable at the time of Faltas's return from Canada.
22
not cut an exception to the entry doctrine from whole cloth; the intent exception to
the entry doctrine was provided by statute. The exception, expressly relating to the
definition of "entry" and expressly limited to lawful permanent residents, was
construed to include an absence made without "intent to depart in a manner which
can be regarded as meaningfully interruptive of the alien's permanent residence."
Fleuti, 374 U.S. at 462, 83 S.Ct. at 1812. "[A]n innocent, casual, and brief
excursion by a resident alien" might not have been so intended. Id. The generally
applicable definition of entry, as any coming into the United States, was left
without exception.
The incorporation of the Fleuti factors into INA § 245A(a)(3)(B) (and we
agree that these factors were incorporated) does not imply that the application of
those factors will have the same result (i.e., a modification of the entry doctrine) in
a statutory provision expressly limited to legalization eligibility as the application
of those factors in an entirely different statutory provision, which did address the
"entry" concept and which was expressly limited to the entry of lawful permanent
residents. To conclude otherwise is to equate the factors involved in an inquiry
with the purpose of the inquiry. The Fleuti Court proposed those factors for the
purpose of determining whether a lawful permanent resident effects an entry under
§ 101(a)(13); Congress borrowed those factors in § 245A(a)(3)(B) for the purpose
23
of determining whether a legalization applicant remains eligible for legalization.
Second, we respectfully believe that, in addition to over-reading Fleuti,
Espinoza under-estimates the degree to which the statutory structure sheds light on
Congressional intent. As discussed above, we believe that to interpret
subparagraph (a)(3)(B) as applying to entry as well as to eligibility is inconsistent
with the plain language of the statute, which expressly limits the applicability of
the Fleuti factors to the eligibility requirement of continuous physical presence.
We also believe that to interpret subparagraph (a)(3)(B) as extending the intent
exception to the entry doctrine to legalization applicants would be inconsistent with
the general structure of § 245A, which addresses eligibility for adjustment of status
separately from the extension of immigration benefits, and which extends
escalating immigration benefits to aliens who are able to demonstrate satisfaction
of increasingly restrictive eligibility requirements.
The provisions of § 245A specifically applicable to applicants for adjustment
to temporary resident status are subsections (a) and (e). Subsection (a) addresses
eligibility for adjustment to temporary resident status, while subsection (e)
addresses immigration benefits for those applicants. The benefits extended are
work authorization and protection from deportation; travel authorization is not one
of the benefits extended in this subsection. See INA § 245A(e).
24
The provision of § 245A specifically applicable to applicants for adjustment
to permanent resident status (i.e., aliens who have successfully attained temporary
resident status under subsection (a)) is subsection (b). Subsection (b) is subdivided
into paragraph (1), addressing eligibility for adjustment to permanent resident
status; paragraph (2), addressing revocation of that status for certain reasons; and
paragraph (3), addressing immigration benefits for temporary residents. Those
benefits are temporary work authorization, subparagraph (b)(3)(B), and travel
authorization, subparagraph (b)(3)(A).
So, § 245A addresses applicants for adjustment to temporary residents and
applicants for adjustment to permanent residence in parallel fashion by setting out
eligibility requirements separately from immigration benefits. The one time the
statute makes the same provision applicable to both immigration benefits and
eligibility, it does so explicitly. See § 245A(b)(1)(B)(ii) (travel authorized under
subparagraph (b)(3)(A) will not disrupt the alien's continuous residence).
Construing subparagraph (a)(3)(B) as an implicit modification of the entry
doctrine, as Faltas urges, would be inconsistent with an organizational structure
that separates eligibility requirements from immigration benefits, inconsistent with
the explicit treatment of travel authorization for lawful temporary residents, and, as
discussed below, inconsistent with the statute's extension of increasingly generous
25
immigration benefits as an alien satisfies progressively restrictive eligibility
requirements.
Section 245A provides escalating immigration benefits to aliens who are
able to demonstrate satisfaction of increasingly restrictive eligibility requirements.
For example, not all applicants for adjustment to temporary resident status are
entitled to work authorization and a stay of deportation; only applicants who
demonstrate prima facie eligibility for legalization under subsection (a). See §
245A(e). These benefits terminate when a final determination on the alien's
legalization application is made; aliens unable to demonstrate eligibility are
deportable, while aliens who can demonstrate eligibility have their status adjusted.
Successful applicants can now apply for lawful permanent resident status under
subsection (b). The eligibility requirements for this adjustment are timely
application between the nineteenth and thirty-third months following adjustment to
temporary resident status; continuous residence following adjustment to temporary
resident status; admissibility as an immigrant; and demonstration of basic
citizenship skills. See § 245A(b)(1). During the period of lawful temporary
residence, the alien is entitled to work authorization and travel authorization. The
travel authorization is limited, however; temporary residents are permitted to
return, "in accordance with regulations," only after "such brief and casual trips
26
abroad as reflect an intention on the part of the alien to adjust to lawful permanent
resident status" and after trips taken for emergent family reasons. See §
245(b)(3)(A). The applicable regulations require the returning temporary resident
to stay within per-absence and aggregate time limitations, to present a temporary
residence card, to present for inspection, and to demonstrate admissibility.
If subsection (a)(3)(B) created an entry exception for applicants for
adjustment to temporary residence, applicants returning from brief, casual, and
innocent absences would not face per-absence or aggregate time limits, would not
need travel documents, would not need to present themselves for inspection, and
would not need to demonstrate admissibility, because they would not be "entering."
Their return would not have to be "in accordance with regulations." Applicants for
temporary resident status would have a broader right of travel than would
temporary residents. This benefit would be extended without even the requirement
that the applicant demonstrate prima facie eligibility for adjustment, which is not a
limitation found in subparagraph (a)(3)(B) (as it is in subsection (e)).
Interpreting subparagraph (a)(3)(B) as limited to eligibility for legalization,
however, avoids these inconsistencies. Under our interpretation, the organizational
structure of § 245A remains consistent in the way it addresses applicants for
adjustment to temporary resident status and applicants for adjustment to permanent
27
resident status. Each category of applicants must demonstrate certain eligibility
requirements, set forth in one part of the statute, and are entitled to certain
immigration benefits, addressed separately by the statute. When a provision is
applicable to both eligibility requirements and immigration benefits, the statute
says so explicitly. Restricting subparagraph (a)(3)(B) to eligibility is also
consistent with the statute's provision for escalating immigration benefits. Mere
applicants for adjustment to temporary resident status are, like other unlawfully
present aliens, entitled to no benefits. Applicants demonstrating prima facie
eligibility for immigration amnesty are entitled to work authorization and a stay of
deportation pending adjudication of their applications. Successful applicants are
entitled to work authorization and have limited permission to travel abroad while
they pursue adjustment to permanent resident status. In sum, when travel abroad
and return has been expressly authorized for lawful temporary residents not only as
an eligibility requirement, but also as a travel benefit, and when that benefit has not
been bestowed on unlawfully present aliens who have merely applied for
legalization, it would be inconsistent with this organizational structure to
nonetheless imply a travel benefit (indeed, an even more generous travel benefit)
for unlawfully present aliens.
28
We see nothing unreasonable or harsh18 in this more limited construction of
the "brief, casual, and innocent absences" exception. Under the reasonable
regulations of the INS, a legalization applicant returning from a brief, casual, and
innocent trip abroad will be paroled into the country, thus permitting the
completion of the legalization process. See 8 C.F.R. § 245a.2(l)(2), (m)(1).
Section 245A(a)(3)(B) fully serves its purpose by ensuring that"brief, casual, and
innocent absences" do not interrupt the applicant's continuous physical presence,
and thus do not defeat the applicant's pursuit of legalization. With respect to all
successful applicants for legalization, their brief, casual and innocent trips abroad
will have no adverse consequences; even if the alien were subject to exclusion
proceedings upon his or her return, the successful applicant's status will be adjusted
and the slate wiped clean. Thus, with respect to all aliens in the class targeted by
Congress in the immigration amnesty program, the congressional purpose is fully
accomplished.19
18
Before an alien unlawfully residing in the United States applies for legalization, it
is clear that the alien's return following any absence would be an "entry." We see nothing harsh
about continuing this treatment for such aliens pending resolution of their applications, and for
such aliens who, as here, have completed the legalization process but were unable to demonstrate
their membership in the class of aliens to whom Congress intended to extend immigration
amnesty.
19
The case of an eligible alien whom the INS refused to permit to return to the
United States or refused to permit an opportunity to continue to pursue a pending legalization
application might present a different question, and would give us pause. See, e.g., Kasbati v.
District Director, 805 F.Supp. 619, 623 n.12 (N.D.Ill. 1991) (noting this problem). See also
29
We do not think it implausible that Congress intended a legalization
applicant's "brief, casual, and innocent" absence to affect only the question of
continuous physical presence and not "entry." A very natural, indeed the most
plausible, reading of the statute is that Congress merely intended the phrase as a
shorthand for evaluating whether there was a meaningful interruption in the alien's
continuous physical presence. Fleuti itself, and its progeny, considered the
contours of what constitutes a departure that is meaningfully interruptive of the
alien's status. For example, courts have considered how long an absence may be
considered brief, Itzcovitz v. Selective Service Local Bd., 447 F.2d 888, 839-94
(2d Cir. 1971) (permanent resident's three-week trip to Tel Aviv for job training
was brief); what purposes behind a departure are innocent, Laredo-Miranda v. INS,
555 F.2d 1242, 1246 (5th Cir. 1977) (though permanent resident's trip to Mexico
was for innocent purpose initially, it became meaningfully interruptive when he
aided illegal entrants on his return); and whether the hardship to the alien or the
alien's family attending a particular outcome are relevant to construing the intent
exception, Zimmerman v. Lehman, 339 F.2d 943, 948-49 (7th Cir. 1965)
Fernandes v. McElroy, 920 F.Supp. 428 (S.D.N.Y. 1996) (returning alien's legalization
application denied at his exclusion hearing); De Olivera v. INS, 873 F.Supp. 338 (C.D.Cal. 1994)
(legalization applicant was unable to obtain advance parole due to insufficient INS administrative
resources and was placed in exclusion proceedings immediately upon return from an absence; no
indication that her parole status was extended to allow adjudication of her application). Such is
not the case before us, however, and we express no view on the proper resolution of such a case.
30
(considering permanent resident's length of residency and family ties); and, if so,
how relevant, Lozano-Giron v. INS, 506 F.2d 1073, 1077-80 (7th Cir. 1974)
(despite nine years of permanent residence, no evidence of significant family,
property, or employment ties in the United States). We think this is the sense in
which Congress intended the phrase "brief, casual, and innocent absence": that an
applicant's absences will be evaluated in this well-understood manner for the
purpose directed by Congress -- i.e., for the purpose of determining whether the
legalization applicant has satisfied the continuous physical presence requirement.
(c) Conclusion: the Meaning of the Statute
For these reasons, we respectfully disagree with the holding of Espinoza that
the adoption in § 245A(a)(3)(B) of the Fleuti factors renders this statute ambiguous
with respect to the issue before us: whether a legalization applicant returning from
a brief, casual, and innocent absence makes an "entry" under the immigration
statutes. Summarizing, we believe that the plain language of subparagraph
(a)(3)(B) limits the effect of the "brief, casual, and innocent absences" exception to
the continuous physical presence requirement, and we believe that our
interpretation is the only one that is consistent with the organizational structure of
the statute. We hold that the statute is unambiguous and that subparagraph
(a)(3)(B) addresses only the eligibility requirement, and does not affect the
31
definition of "entry" for legalization applicants.20
(d) Faltas's Other Arguments Regarding (a)(3)(B)
Faltas advances several additional arguments in favor of her reading of the
statute, all of which are readily rejected. She argues that the interpretation of the
statute she advances is supported by the principles that ambiguity in the
immigration statutes be construed in favor of the alien, Cardoza-Fonseca, 480 at
449, 107 S.Ct. at 1222, and that IRCA, a remedial program, ought to be construed
liberally. Cf. Dennis v. Higgins, 498 U.S. 439, 443, 111 S.Ct. 865, 868 (1991) (as
a remedial statute, § 1983 "should be liberally and beneficently construed")
(internal quotation and citation omitted). These venerable principles of statutory
construction, however, apply only where the statute is ambiguous. Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 461-62, 122 S.Ct. 941, 956 (2002) ("When the
words of a statute are unambiguous . . . 'judicial inquiry is complete.'") (citation
20
In a different, but analogous context, the Second Circuit rejected an argument
similar to Faltas's argument. Patel v. McElroy, 143 F.3d 56 (2d Cir. 1998). Patel argued that his
return to the United States following a brief, casual, and innocent trip did not constitute an entry
and, therefore, he should be deemed "already within the United States and properly subject to
'deportation' proceedings and not 'exclusion' proceedings." Id. at 59. The court rejected that
argument. Id. ("We disagree."). Similar to the instant context, the "brief, casual, and innocent"
absence exception applied to the continuous physical presence requirement for eligibility for
suspension of deportation, former INA § 244(a), 8 U.S.C. § 1254 (repealed by IIRIRA), and did
not alter the well-settled definition of "entry." 143 F.3d at 59. But see Mendoza v. INS, 16 F.3d
335, 336-37 (9th Cir. 1996) (dicta possibly pointing to the contrary, also in the context of
suspension of deportation).
32
omitted). Finding no ambiguity, we have no opportunity to apply these principles.
Faltas argues that the above interpretation of § 245A(a)(3)(B) is inconsistent
with the nature of IRCA as an amnesty program, and specifically conflicts with the
prohibition against deporting an applicant on the basis of information obtained
from the application found in § 245A(c) and the temporary stay of deportation for
legalization applicants required by § 245A(e).
Paragraphs 245A(c)(4) and (5) require the confidentiality of information
submitted in a legalization application. If unlawful residents suspected that they
would be detected and deported by voluntarily identifying themselves to the INS,
applications for immigration amnesty would obviously be deterred. See Perez v.
INS, 72 F.3d 256, 259 (2d Cir. 1995) (confidentiality provision assures unlawful
residents that they will not "come forward only to be snared by the INS")
(quotation and citation omitted). The exclusion proceedings against Faltas were in
no way based on information obtained from her legalization application, however.
Her exclusion order is based on her attempted entry on October 29, 1989, without
valid travel documents. The fact that exclusion, rather than deportation, procedures
were used is irrelevant to protecting the confidentiality of her application. Whether
legalization applicants are subject to exclusion or deportation upon their return
from a brief absence would have no effect on the incentives of unlawful residents
33
to apply.
Our interpretation is also consistent with the temporary stay of deportation.
Section 245A(e) provides a temporary stay of deportation for applicants and grants
temporary work authorization until the application is approved or denied. Faltas
was not ordered excluded until after her application was denied and this denial was
affirmed on administrative appeal. See Yao v. INS, 2 F.3d 317, 319 (9th Cir. 1993)
(IRCA bars the execution of deportation orders, not the commencement of
proceedings, pending resolution of the application). Indeed, she was paroled into
the United States in order to continue pursuit of her legalization application, a
benefit she would not have received absent IRCA. The procedures used to
adjudicate her admissibility in no way diminished the availability of temporary
relief from being ordered out of the country pending evaluation of her application
for immigration amnesty. In short, the remedial purposes of IRCA would not be
served by adopting the interpretation Faltas urges.
Faltas also points to § 1504(c) of the Legal Immigration Family Equity Act
Amendments of 2000 ("LIFE Act Amendments"), Pub. L. No. 106-554, 114 Stat.
2763 (2000) (enacting H.R. 5666, 106th Cong.).21 She contends that this provision
21
If an alien has obtained lawful permanent resident status under section 1104 of the
Legal Immigration Family Equity Act and the alien has an eligible spouse or child
who is no longer physically present in the United States, the Attorney General
34
demonstrates that legalization applicants are treated differently under the
immigration law for parole purposes, supporting her argument that legalization
applicants are not subject to parole upon return from a brief, casual, and innocent
trip. The provision of the LIFE Act Amendments on which Faltas relies, however,
simply allows spouses and unmarried children of certain class action members to
be paroled into the country without counting against numerical limits on
immigration. Nothing in this amendment indicates that the conditions and
restrictions of parole do not apply with equal force to aliens so paroled. The
benefits of this provision accrue to potential immigrants who would otherwise face
exhausted immigration limits, not to the paroled aliens.
2. Agency Construction
Even if we were to conclude that INA § 245A(a)(3)(B) is ambiguous, we
would defer to the INS's reasonable interpretation of that provision as limited to
eligibility for legalization. Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. at 1445.
The regulation implementing subparagraph (a)(3)(B) is found in 8 C.F.R. §
shall establish a process under which the eligible spouse or child may be paroled
into the United States in order to obtain [certain immigration benefits] . . . . An
alien so paroled shall not be treated as paroled into the United States for purposes
of section 201(c)(4) of the Immigration and Nationality Act. . . .
LIFE Act Amendments § 1504(c). Section 201(c)(4) of the INA, 8 U.S.C. § 1151(c)(4), requires
that parolees who do not depart within 365 days or legalize their status be counted against annual
numerical immigration limits.
35
245a.2(l). The INS considers an absence "brief, casual, and innocent" only if the
alien obtains advance parole for the trip, unless the departure was out of the alien's
control. § 245a.2(l)(2).22 See also 8 C.F.R. § 245a.2(m)(1).23 The provision for
advance parole clearly indicates that the INS considers the returning legalization
applicant to be seeking entry. The term "parole" has a well-established meaning:
that the alien is allowed into the country but remains constructively at the border,
seeking admission and subject to exclusion proceedings.24
22
A brief, casual and innocent absence means a departure authorized by the Service
(advance parole) subsequent to May 1, 1987 of not more than thirty (30) days for
legitimate emergency or humanitarian purposes unless a further period of
authorized departure has been granted in the discretion of the district director or a
departure was beyond the alien's control.
8 C.F.R. § 245a.2(l)(2).
23
"(1) During the time period from the date that an alien's application establishing
prima facie eligibility for temporary resident status is reviewed at a Service
Legalization Office and the date status as a temporary resident is granted, the alien
applicant can only be readmitted to the United States provided his or her departure
was authorized under the Service's advance parole provisions contained in §
212.5(f) of this chapter.
"(2) An alien whose application for temporary resident status has been approved
may be admitted to the United States upon return as a returning temporary
resident provided he or she [meets certain requirements]."
8 C.F.R. § 245a.2(m).
24
We note that the Ninth Circuit has interpreted 8 C.F.R. § 245a.2(l)(2) as evidence
that the INS construes INA § 245A(a)(3)(B) as creating an "entry" exception for legalization
applicants. See Espinoza, 94 F.3d at 1276. The court relied on the language of that regulation
defining a brief, casual and innocent absence as "a departure authorized by the Service . . . ."
This language, the court reasoned, demonstrates that the INS views § 245A(a)(3)(B) as a "border-
crossing mechanism." 94 F.3d at 1276. We think that, because an "absence" necessarily implies
36
Faltas argues that § 245a.2(m) shows that the INS does not consider a
returning legalization applicant as entering because it allows an applicant to be
"readmitted." The reference to readmission, however, is immediately qualified by
the phrase, "provided his or her departure was authorized under the Service's
advance parole provisions contained in § 212.5(f) . . . ." Though there is some
tension between the characterization of the alien's return as readmission and the
requirement of obtaining advance parole, the BIA's decision in Singh demonstrates
that the INS does not interpret § 245a.2(m)(1) as creating an "entry" exception.
Although the BIA did not address the effect of the language on which Faltas relies,
it approved the application of exclusion proceedings to a returning legalization
applicant who did not apply for advance parole prior to his departure. The BIA
indicated that, had the alien's departure been "brief, casual, and innocent," he
a departure and a return, that is, a border crossing, this language does not address the essential
question of what effect that border crossing has on the alien's status. The question is not whether
the regulations contemplate a border crossing, but whether the INS construes § 245A(a)(3)(B) as
creating an exception to the entry definition. We think the requirement of advance parole
strongly suggests that the INS does not; if a legalization applicant were not seeking "entry," there
would be no need for parole. The court in Espinoza went on to invalidate 8 C.F.R. §
245a.2(l)(2)'s advance parole requirement as in conflict with the court's perception of the INS's
interpretation of the statute, treatment that we think is inconsistent with the court's reliance on
that very regulation to demonstrate the INS interpretation. See 94 F.3d at 1277. Contrary to
Espinoza, we do not believe that the INS regulations construe the statute as creating an exception
to entry. Our interpretation is supported by the regulation's advance parole requirement, and we
do not view the obvious border-crossing aspect as speaking to the issue of an entry exception, vel
non. Even more significant, the BIA has expressly construed the statute as addressing eligibility
and not as revising the definition of entry. See the discussion of In re Singh, 21 I. & N. Dec.427(BIA 1996) (en banc), below. The Espinoza court was apparently unaware of the Singh decision.
37
would have been eligible for parole through the exercise of prosecutorial discretion
described in internal INS guidelines. Singh, 21 I. & N. Dec. at 433. The BIA
clearly considered the alien to be seeking entry regardless of the character of the
absence, which the Board refused to consider because it was relevant only to the
alien's eligibility for legalization. Discussing INA § 245A(a)(3), the Board
emphasized the distinction
between section 245A of the Act, which addresses eligibility for
temporary resident status, and the concept of excludability, which
involves an alien's ability to legally enter the United States. We
clearly have no authority to decide whether an applicant, ordered
excluded by this Board due to lack of proper documents, may still
demonstrate eligibility for temporary resident status . . . As to
excludability, we note that Congress did not create an exception to
section 212(a)(7)(A)(i)(I) of the Act [excludability for lack of valid
travel documents] . . . when it enacted section 245A of the Act.
Moreover, the definition of 'entry' set forth at section 101(a)(13) . . .
has not been revised . . . .
Id. at 434 n.8 (emphasis added). We would defer to this interpretation, which is
neither plainly erroneous nor inconsistent with statute or the regulation. Auer, 519
U.S. at 461, 117 S.Ct. at 911. Singh interprets the regulations as treating returning
legalization applicants as seeking entry. We hold that this regulatory interpretation
of the statute is permissible.
B. Petitioner's Other Arguments
Faltas's primary argument is that she did not "enter" the country on October
38
29, 1989. She advances several other arguments which we will now address.
1. INA § 245A(d)(2)(A)
Faltas complains that excluding her for lack of valid travel documents
contravenes INA § 245A(d)(2)(A).25 However, this provision waives the ground of
excludability only for the eligibility requirement of admissibility, § 245A(a)(4)(A).
It does not give legalization applicants a free pass to cross and re-cross the borders
without valid travel documents. It only allows a legalization application to be
approved even though the applicant would be inadmissible for lack of labor
certification or valid entry documents.
2. Notice of the consequences of departure
The adequacy of the notice Faltas received regarding the potential
consequences of her 1989 departure does not affect the propriety of exclusion
proceedings. While Faltas argues that she was never notified that accepting
advance parole would change her status from an alien in the United States, subject
to deportation proceedings, to that of an alien seeking admission, subject to
exclusion, the INS is under no duty, constitutional or otherwise, to provide aliens
25
Section 245A(d)(2)(A) provides:
"In the determination of an alien's admissibility under subsection[] (a)(4)(A) . . . The
provisions of paragraphs (5) [labor certification requirements] and (7)(A) [entry document
requirements] of section 212(a) shall not apply."
39
with legal advice on the effects of parole. Balogun v. Attorney General, 303 F.3d
1303, 1312 (11th Cir. 2002). Moreover, parole has a well-established legal
meaning.
3. Joshi
Faltas argues that Joshi v. INS, 720 F.2d 799 (4th Cir. 1983), requires the
termination of exclusion proceedings against her. In that case, a lawfully admitted
nonimmigrant applied for adjustment of status under INA § 245. While his
application was pending, he received advance parole to travel to India. After his
return, his application was denied and he was placed in exclusion proceedings,
where his adjustment application was unreviewable by the immigration judge. He
was apparently excluded on the basis of the expiration of his authorized stay as a
nonimmigrant. The court held that he was entitled to deportation proceedings. The
court in Joshi relied on the regulations in force at that time governing travel by
adjustment applicants, which provided that upon an applicant's return from an
authorized trip, "the application shall be adjudicated without regard to the
departure and absence." 720 F.2d at 801. The court reasoned that the alien was
entitled to adjudication of his application for adjustment of status in deportation
proceedings before his departure, and was therefore entitled to the same right on
his return. Id. at 802. The court also noted that, had the alien been denied
40
admission based on his status as an entering alien upon his return from India,
exclusion proceedings would have been appropriate. Id.The regulation relied upon by the Joshi court has since been amended to
explicitly require the application of exclusion proceedings to adjustment applicants
paroled into the country following a brief departure. See 8 C.F.R. § 245.2(a)(4)(ii).
In any event, the Joshi decision is irrelevant to the disposition of this case. The
regulations construed in that case pertained to applicants for adjustment of status.
Faltas relies on her status as a legalization applicant, not as an adjustment
applicant. She had no adjustment applications pending at the time of her
departure.26
C. Motion for Reconsideration
Finally, Faltas appeals the BIA's denial of her motion for rehearing. Under 8
C.F.R. § 3.2(a), the decision to grant a motion to reconsider "is within the
26
Joshi also held that the advance parole at issue in that case was a purely
administrative procedure not promulgated under the authority of INA § 212(d)(5), 8 U.S.C. §
1182(d)(5) (granting the Attorney General discretion to parole aliens into the United States in
certain circumstances). See Joshi, 720 F.2d at 803. We do not believe that holding has any
application to the case at bar. Whether or not the (now-superceded) regulation addressed by the
Joshi court derived its authority from § 212(d)(5) says nothing with respect to the derivation of
the advance parole authority exercised in the instant case pursuant to 8 C.F.R. § 245a.2(l) and
(m). The instant regulations expressly refer to the advance parole provisions of 8 C.F.R. §
212.5(f), which in turn was expressly promulgated under the authority of INA § 212(d)(5). See 8
C.F.R. § 212.5(a). This exercise of advance parole authority is not an unreasonable interpretation
of the Act. If, or to the extent that, Joshi suggests otherwise, we disagree.
41
discretion of the Board, subject to the restrictions of this section." We review the
BIA's denial of a motion to reconsider for abuse of discretion. Cf. Mejia-
Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 2001) (denial of motion to
reopen under 8 C.F.R. § 3.2(a) reviewed for abuse of discretion). In her motion to
reconsider, Faltas essentially argues that the BIA's decision rested on an erroneous
interpretation of the law. Based on the foregoing discussion, it is clear the BIA did
not abuse its discretion in denying the motion.
III. CONCLUSION
Because Faltas sought to enter the United States on October 29, 1989,
without valid travel documents, she was excludable. When her parole was
subsequently terminated, she was properly placed in exclusion proceedings.
Accordingly, the petition is
DENIED.27
27
Any outstanding motions not expressly addressed in this opinion are denied.
Following oral argument, the parties briefed the issue of whether Faltas is ineligible for
legalization and excludable/deportable based on the two-year foreign residence requirement, INA
§§ 212(e) and 245A(a)(2)(C). This issue is not relevant to the question presented by the petition
for review, which is whether the exclusion proceedings were proper. Furthermore, this issue
appears relevant only to the merits of Faltas's legalization application. INA § 245A(f)(4)(A)
appears to limit our jurisdiction to review the merits of a legalization application to the review of
deportation proceedings, and Faltas advances no argument for why we might have jurisdiction to
hear her foreign-residence requirement arguments. We therefore decline to address that issue.
42