SINGH

Interim Decision #3282

Interim Decision #3282

In re Sukwinder SINGH, Applicant

Decided June 14, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A returning applicant for legalization under section 245A of the Immigration and Nationality

Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991), may not, by virtue of his membership in the

class action suit of Catholic Social Services v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff’d

sub nom. Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated sub

nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993), successfully file a motion to termi-

nate exclusion proceedings based on the doctrine set forth in Rosenberg v. Fleuti, 374 U.S. 449

(1963).

Pro se1

FOR IMMIGRATION AND NATURALIZATION SERVICE: Wendi Lazar, General

Attorney

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, VILLAGELIU, COLE, MATHON, and GUENDELSBERGER, Board Members.

Concurring and Dissenting Opinion: ROSENBERG, Board Member.

DUNNE, Vice Chairman:

In a decision dated December 13, 1994, an Immigration Judge granted the

applicant’s motion to terminate exclusion proceedings based upon her deci-

sion that the applicant had made a brief, casual, and innocent departure from

the United States. The Immigration and Naturalization Service filed a timely

appeal from that decision. The appeal will be sustained and the record will be

remanded to the Immigration Court.

I. PROCEDURAL HISTORY

The applicant is a native and citizen of India. The record indicates that he

originally entered the United States without inspection in 1980. The appli-

cant contends, and the Service does not dispute, that in 1991, the applicant

applied for adjustment of status under section 245A of the Immigration and

Nationality Act, 8 U.S.C. § 1255a (1988 & Supp. III 1991). While his appli-

cation was pending, the applicant departed for India without securing

1 The applicant received representation at the hearing.

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Interim Decision #3282

advance parole as required under 8 C.F.R. § 245a.2(m)(1) (1991). On April

15, 1994, the applicant applied for admission into the United States. The

record reflects that upon arrival, the applicant presented himself for inspec-

tion and confessed to immigration officials that he possessed a fraudulent

passport. On April 16, 1994, the Service served the applicant with a Notice to

Applicant for Admission Detained for Hearing Before Immigration Judge

(Form I-122), alleging that he is inadmissible due to his alleged fraud and

lack of proper immigration documents.

At an exclusion hearing held October 27, 1994, the applicant requested

leave to file a motion to terminate proceedings based upon the Supreme

Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963). The Immigra-

tion Judge continued the hearing until December 13, 1994, at which time she

considered the applicant’s motion. In his motion, the applicant argued that,

due to his status as a lawful temporary resident applicant with a designation

of subclass CS1, he should not be found excludable because his departure to

India was brief, casual, and innocent. At the hearing, the Immigration Judge

took testimony regarding the nature of the applicant’s departure from the

United States. At the conclusion of the hearing, the Immigration Judge deter-

mined that the applicant’s trip to India did constitute a brief, casual, and inno-

cent departure pursuant to Rosenberg v. Fleuti, supra. She therefore

terminated the proceedings.

II. THE SERVICE’S APPEAL

On appeal, the Service argues that the Immigration Judge did not have the

authority to terminate the applicant’s exclusion proceedings under the Fleuti

doctrine. Alternatively, the Service argues that the applicant’s departure does

not fall within the ambit of Rosenberg v. Fleuti, supra. Because we agree

with the Service’s initial argument, we will not analyze whether the appli-

cant’s departure constituted a brief, casual, and innocent departure from the

United States.

III. RELEVANT LEGAL HISTORY

In order to address the Service’s appellate contentions, we must first

examine the statutory and regulatory provisions regarding section 245A

legalization applicants. We stress, however, that while the applicant claims

entitlement to a Fleuti determination due to his status as a legalization appli-

cant, we have no authority to consider the applicant’s eligibility for legaliza-

tion. See section 245A(f) of the Act. By statute, Congress has prevented us

from even reviewing his legalization file. See sections 245A(c)(4), (5) of the

Act; see also 8 C.F.R. § 245a.2(t) (1995). Our jurisdiction is limited solely to

the consideration of the Service’s charges of excludability.

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A. Section 245A of the Act

Section 245A of the Act allows an alien to adjust his status to that of an

alien lawfully admitted for temporary residence if the alien meets certain

requirements, including, but not limited to, his continuous unlawful resi-

dence and continuous physical presence in the United States since 1982. See

section 245A of the Act. Federal regulations further state that an alien must

apply for temporary residence “within the twelve month period beginning on

May 5, 1987, and ending on May 4, 1988.” 8 C.F.R. § 245a.2(a). Subsequent

to the institution of the legalization program, various lawsuits arose arguing

against the closing of the application period on May 4, 1988. See, e.g., Catho-

lic Social Services v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff’d sub

nom. Catholic Social Services v. Thornburgh, 956 F.2d 914 (9th Cir. 1992),

vacated sub nom. Reno v. Catholic Social Services, 509 U.S. 43 (1993)

(“CSS”); League of United Latin American Citizens v. INS, No.

87-4757-WKD (C.D. Cal. July 15, 1988), aff’d sub nom. Catholic Social Ser-

vices v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), vacated sub nom. Reno v.

Catholic Social Services, 509 U.S. 43 (1993) (“LULAC”). The district courts

in California certified two separate classes for lawsuits (CSS and LULAC);

these classes consisted of prima facie eligible applicants who had failed to

file applications within the regulatory period.2 The Eastern District Court

thereafter enjoined the Attorney General from excluding class members who

had travelled abroad without proper immigration documents. Catholic Social

Services v. Reno, No. Civ. S-86-1343 LKK (E.D. Cal. Apr. 28, 1993).

B. The District Court’s Injunction

More specifically, the court in Catholic Social Services v. Reno, supra,

slip op. at 7, ordered that the Attorney General of the United States, her

agents and employees

shall not detain, exclude or deport any subclass 1 member applicant solely because he or she

departed the United States without INS permission (advance parole) and returned after a

“brief, casual and innocent” absence. . . . Any subclass 1 members held in detention solely

2 Both class action suits were filed on behalf of applicants who had departed the United

States after 1982 and who thereafter appeared ineligible for legalization due to these absences

from the country. Specifically, the litigation surrounding the district court's injunction in CSS

and the Service's May 18, 1993, policy relates to 8 C.F.R. §§ 245a.2(g) and (b)(8), regarding the

"continuous unlawful residence" and "continuous physical presence" requirements necessary

to demonstrate eligibility for section 245A relief. The Supreme Court joined these two lawsuits

in Reno v. Catholic Social Services, 509 U.S. 43 (1993). Therein, the Court found that many

class members did not have a ripe claim to relief, and limited the class action to those aliens who

could demonstrate that they had been "front-desked"; in other words, such applicants had to

demonstrate that they had been discouraged by Service officials from filing a legalization

application. We note that none of the litigation thus far addresses 8 C.F.R. § 245a.2(m)(1),

which controls the readmission policy for most of the CSS and LULAC applicants currently in

exclusion proceedings.

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Interim Decision #3282

on the basis that they departed from the United States without advance parole shall be

immediately released from detention if their absence was otherwise “brief, innocent and

casual.”

Although the district court specifically stated that the Attorney General

may not “exclude or deport” a CS1 member, we do not find this language

determinative. We further note that the United States Court of Appeals for

the Ninth Circuit decided, subsequent to the district court’s injunction, that

similar language within the seasonal agricultural worker legalization provi-

sions of the Act did not preclude the initiation of proceedings or the entry of a

deportation order. See Lucy Ko Yao v. INS, 2 F.3d 317, 319 (9th Cir. 1993).3

The court further explained that “(t)he order simply may not be executed

unless and until an adverse legalization determination is made and is final.”

Id. Inasmuch as the Service retains sole jurisdiction over the execution of

such orders, we find that the injunction itself does not define the procedures

which the Immigration Judges and this Board should follow in exclusion pro-

ceedings of returning CS1 applicants.

C. Service Policy Regarding Section 245A Applicants

As a result of the injunction, the Service issued a memorandum on May

18, 1993, instructing its officers to cease placing into exclusion proceedings

certain CSS class members who had travelled abroad without the protection

of advance parole. Pursuant to the order, Service agents were also required to

determine to which class action suit an alien belonged. If the alien belonged

to the CSS class action suit, the agent was to determine the nature of the

applicant’s departure from the United States. If the agent found the alien’s

departure to be “brief, casual, and innocent” as that term has been defined

under the immigration laws, the Service directed the officer to parole the

alien into the United States for a period of 1 year. Moreover, the directive

contained the following provisions:

Effective immediately, any exclusion proceedings against a CSS class member which com-

menced solely because the alien sought admission without advance parole are to be termi-

nated and the alien is to be paroled into the United States. . . . However, if the alien’s absence

was not brief, casual, and innocent, or if the alien is excludable under a non-waivable

ground, proceedings and detention may proceed.

70 Interpreter Releases, No. 22, June 7, 1993, at 744. Lastly, the memoran-

dum clearly specified that termination of exclusion proceedings upon a find-

ing of brief, casual, and innocent departures should extend only to CSS class

members, and not to any other 245A applicant or class litigant. Specifically,

in its May 18, 1993, memorandum, the Service explained that the status of an

alien seeking admission as a CSS class member may be checked through its

3 The Ninth Circuit analyzed the phrase in section 210(d)(2)(A) of the Act, 8 U.S.C.

§ 1160(d)(2)(A) (1988), which provides that an alien “may not be excluded or deported.”

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Central Indexing System (“CIS”), and “is indicated by the class of admission

CS1.” Id. at 744.

D. Applicability to Exclusion Proceedings

We have held that while such policy guidelines are not binding on the

Board, we will nonetheless adopt a Service policy when appropriate. See

Matter of M/V Saru Meru, 20 I&N Dec. 592 (BIA 1992); Matter of Ibrahim,

18 I&N Dec. 55 (BIA 1981); Matter of Cazavos, 17 I&N Dec. 215 (BIA

1980). We have no authority to investigate the motivation behind the Ser-

vice’s policy decisions, but we may use such policy as guidance within the

context of our exclusion and deportation powers. Clearly, the Service policy

included those applicants who were already in exclusion proceedings, and at

the time of the Service’s release of this policy memorandum, many of these

class members had filed appeals of their exclusion orders. Under these cir-

cumstances, we found it appropriate to remand those cases to the Office of

the Immigration Judge so that the Service could examine the status of these

class members and terminate proceedings in those cases aligned with their

May 18, 1993, policy memorandum. We found this to be particularly appro-

priate in light of the preferential treatment afforded those applicants who had

been designated CS1 class members.

Thereafter, we continued to receive appeals from aliens who claimed

membership in the CSS class action suit. However, as previously noted, the

statute and regulations prevent us from reviewing any information regarding

the alien’s legalization application. See sections 245A(c)(4), (5), (f) of the

Act; see also 8 C.F.R. § 245a.2(t). The evidence needed to review such

claims remained in the exclusive possession of the Service. Thus, in order to

insure that the Service followed its policy in individual cases, we began to

request that the Service provide a copy of that portion of its Central Indexing

System which applied to the alien’s designation for class membership. We

found this both appropriate and necessary in order to adjudicate the exclusion

proceedings in accordance with the Service’s May 18, 1993, memorandum.4

However, due to the regulatory limitations on our access to such information,

4 We recognize the fundamental rule of law that the issuance of a charging document and the

institution of exclusion proceedings is within the sole jurisdiction of the Service. Moreover, the

burden in exclusion proceedings is ordinarily upon the applicant to establish that he is

admissible to the United States. See section 291 of the Act, 8 U.S.C. § 1361 (1994); see also

Matter of Nafi, 19 I&N Dec. 430 (BIA 1987); Matter of Matelot, 18 I&N Dec. 334 (BIA 1982).

Admittedly, requiring the Service to produce a copy of an alien’s CIS printout runs counter to

these tenets. Nonetheless, we find that to remain consistent with the Service’s May 18, 1993,

examine such information in order to thoroughly review an alien’s appellate contentions. See

C.F.R. § 3.1(d) (1995). As we discuss, infra, we also find it proper for the Immigration Judge to

request submission of such evidence at the hearing.

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we have not sought information regarding the methods by which the Service

designates the various class members.5

IV. THE APPLICANT’S EXCLUSION HEARING

At the exclusion hearing, the applicant moved to terminate the proceed-

ings on the ground that, due to his status as a lawful temporary resident appli-

cant with a designation of subclass CS1, he should not be found excludable

because his departure to India was brief, casual, and innocent. At the hearing,

the Immigration Judge took testimony regarding the nature of the applicant’s

departure from the United States. Specifically, the applicant testified that he

originally entered the United States in 1980. He left the United States for

approximately 1 month in December of 1987 and reentered without inspec-

tion. He testified that in 1991, he applied for adjustment of status under sec-

tion 245A of the Act. Thereafter, the applicant again departed the United

States in December of 1991. He testified that he left the United States without

proper documents from the Service, but that the Service told him upon his

return that none were necessary due to his status as a CS1 applicant.

On October 15, 1993, the applicant again departed the United States. He

inquired about advance parole, but was told by the Service, “You don’t need

it, because it’s CSS-1.” The applicant indicated that he left on October 15,

1993, because he received word that his family had been imprisoned. He

indicated that Indian officials confiscated his immigration documents and

placed him in jail for approximately 4 months due to his work with the All

India Sikh Student Federation. He testified that he obtained a valid Indian

passport prior to his return to the United States, and that he placed his picture

into the passport. Upon returning to the United States on April 15, 1994, the

applicant handed his passport to an immigration official and told him that it

was invalid.

V. LEGAL ANALYSIS

Current regulations state that an alien who has a temporary residence

application pending “can only be readmitted to the United States provided his

or her departure was authorized under the Service’s advance parole provi-

sions.” 8 C.F.R. § 245a.2(m)(1).6 The applicant testified that he did not

5 Notwithstanding the Service’s policy memorandum and the district court’s injunction, we

also note that the propriety of the actual regulation regarding the applicant’s excludability has

not been litigated. As an initial matter, it appears that 8 C.F.R. § 245a.2(m)(1) does not

authorize the readmission of those aliens who did not procure advance parole prior to their

departure from the United States.

6 A pending temporary residence application originates on the date that an alien's application

establishing prima facie eligibility for temporary status is reviewed at a Service Legalization

Office. See 8 C.F.R. § 245a.2(m)(1). While the record contains no information regarding the

applicant's legalization application, the Service has not disputed that such an application is

pending.

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request advance parole prior to his departure from the United States. Inas-

much as he did not have any other form of entry document, we find that the

applicant properly belongs in exclusion proceedings.

However, the applicant claims, and the Service does not dispute, that the

applicant has demonstrated evidence of CSS class membership eligibility,

and has received a CS1 designation in the Service’s Central Indexing System.

The Service’s May 18, 1993, policy memorandum indicates that, notwith-

standing the applicant’s lack of entry documents, he may therefore be paroled

into the United States for a period of 1 year if his departure is determined to

be “brief, casual, and innocent.” The question before us is whether an Immi-

gration Judge has the authority to make such a determination. We find that

the Immigration Judges and this Board do not have such authority.

Section 245A of the Act allows for a single level of administrative review

from adverse legalization decisions. See section 245A(f) of the Act. Federal

regulations state that aliens may appeal their decisions to the Administrative

Appeals Unit (“AAU”) of the Service. 8 C.F.R. § 245a.2(p).7 Clearly, we

have no jurisdiction over the applicant’s legalization application. However,

we must determine if and how his CS1 legalization status affects his exclu-

sion proceedings.

At the outset, we note the sympathetic posture of the applicant’s case. The

applicant clearly departed the country under exigent circumstances. How-

ever, we must find that we are unable to consider the nature of the applicant’s

departure. We simply find no authority by which the Immigration Judge or

this Board may apply the Fleuti doctrine to the applicant’s attempted entry.

In Matter of Quintero, 18 I&N Dec. 348 (BIA 1982), we held that the

authority for a grant of deferred action status rests solely in the district direc-

tor’s prosecutorial discretion and that, therefore, neither the Immigration

Judge nor the Board may grant such status or review a decision of the district

director to deny it. We find this holding applicable to the instant case, inas-

much as the Service’s ability to grant deferred action status may be found

only in the Service’s Operations Instructions. See O.I. 103.1(a)(1)(ii). Such

authority is mentioned nowhere in the statute or the regulations, but is simply

the result of an administrative policy to give low priority to the enforcement

of the immigration laws in certain cases. Like the Service’s deferred action

status authority, the directive of the Service’s May 18, 1993, memorandum

7 Although the AAU's decision is the final agency action on the application, a legalization

applicant has a "latent" right to judicial review. See Reno v. Catholic Social Services, supra. As

the Supreme Court explained, an alien whose appeal has been rejected by the AAU stands in the

same position as he did before he applied: he is residing in the United States in an unlawful

status, but the Service has not yet discovered his presence. See section 245A(c)(5) of the Act.

Therefore, an AAU denial does not automatically trigger a deportation proceeding; rather, the

alien must either surrender or wait for the Service to find him. After a deportation hearing has

been conducted and an order has been issued, the alien may then challenge his legalization

denial in a circuit court of appeals. See generally section 105 of the Act, 8 U.S.C. § 1105 (1994).

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exists solely as an internal guideline of the Service. It does not confer sub-

stantive rights on an excludable class member which he may litigate in exclu-

sion proceedings. The Act and regulations consistently limit the Immigration

Court’s jurisdiction over legalization proceedings, and we find no affirma-

tive authority to either determine or review the Service’s decision regarding

the nature of the applicant’s departure.8

Moreover, we find that the substance of the Service policy itself clearly

grants a remedy beyond the scope of our jurisdiction. The Service’s May 18,

1993, memorandum allows for an alien to be paroled into the United States

for a period of 1 year. The district director has exclusive jurisdiction to parole

an alien into the United States pursuant to 8 C.F.R. § 212.5(a) (1995). Again,

neither the Immigration Judge nor this Board has jurisdiction to exercise

parole power. Matter of Matelot, 18 I&N Dec. 334 (BIA 1982); Matter of

Castellon, 17 I&N Dec. 616 (BIA 1981). Logically, our enforcement or

review of the Service’s memorandum would create a class of aliens without

status. The Service correctly argues in its appellate brief that the Immigration

Judge’s termination of the applicant’s proceedings infringed upon the Ser-

vice’s authority as vested in the district director.

VII. CONCLUSION

Ultimately, then, we find that a class member’s status has very little bear-

ing on the Immigration Judge’s consideration of his excludability, and we

find that such status creates no substantive rights which the applicant may

8 The United States District Court for the Southern District of New York recently issued

Fernandes v. McElroy, 920 F. Supp. 428 (S.D.N.Y. 1996), and found therein that the

Immigration Judges and this Board do have the authority, pursuant to section 245A of the Act,

to consider the brief, casual, and innocent nature of an applicant’s departure. In so finding, the

district court interpreted section 245A(3)(A) of the Act as requiring an alien to establish

continuous physical presence throughout the temporary residence application period; in other

words, the requirement of maintaining continuous presence does not cease with the filing of a

245A application. Based on this reading of the statute, the district court also found section

245A(3)(B) of the Act, which excepts brief, casual, and innocent absences from disturbing an

applicant’s continuous physical presence, applicable throughout the alien’s application period.

Since the court ultimately found that 8 C.F.R. § 245a.2(m)(1) impermissibly “grafts” the

further requirement of advance parole onto section 245A(3)(A) of the Act, the regulation was

found to be invalid.

In our view, the district court fails to distinguish 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 pursuant to the district court's

interpretation of the section 245A requirements. As to excludability, we note that Congress did

not create an exception to section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I)

(1994), when it enacted section 245A of the Act. Moreover, the definition of "entry" set forth at

section 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1994), has not been revised, and neither

section 245A nor section 210 of the Act includes any waiver for this exclusion ground.

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claim at his hearing. The Service’s May 18, 1993, memorandum addresses

policy issues left within the scope of the Service’s prosecutorial discretion.

Neither we nor the Immigration Judges may question the distinctions raised

in the Service memorandum, nor may we extend our authority to substan-

tively review the Service’s determination as to whether or not to initiate

exclusion proceedings against a CSS class member. While we will continue

to request that the Service provide a copy of the applicant’s CIS sheet in those

cases in which the Immigration Judge or this Board deems it necessary, we

otherwise find a class member’s status, and the nature of his departure from

the United States, beyond our authority to question. Those decisions lie

solely in the jurisdiction of the Service.

In the applicant’s case, we must find that the Immigration Judge erred by

employing the Fleuti doctrine and by subsequently terminating the appli-

cant’s exclusion proceedings. The Service clearly determined that the appli-

cant’s departure did not entitle him to a grant of parole upon his return; it

therefore chose to institute exclusion proceedings. As long as the Service

chooses to prosecute the applicant’s proceedings to a conclusion, the Immi-

gration Judges and this Board must order the applicant excluded and

deported if the evidence supports such a finding. Matter of Yazdani, 17 I&N

Dec. 626 (BIA 1981). The Service’s policy memorandum grants neither the

Immigration Judges nor this Board authority to do otherwise.

Accordingly, we will remand the record to the Immigration Judge for a

determination of the applicant’s admissibility.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Court for further proceedings consistent with the foregoing decision.

Chairman Paul W. Schmidt and Board Member Lauri S. Filppu did not

participate in the decision in this case.

CONCURRING IN PART AND DISSENTING IN PART: Lory D.

Rosenberg Board Member

I respectfully concur in part and dissent in part.

I do not take issue with the reasoning of the majority that the applicant’s

eligibility for legalization benefits as a class member in Catholic Social Ser-

vices v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988) (“CSS”), is not for this

Board to determine. To my mind, however, that has little bearing on the

Immigration Judge’s consideration of whether exclusion proceedings are

proper in this case. In my view, by refusing to address the nature of the appli-

cant’s departure from the United States, the majority fails to properly exer-

cise its authority and to discharge a fundamental responsibility belonging to

this Board and to the Immigration Judges; that is, to make the fundamental

jurisdictional determination regarding the propriety of the applicant’s exclu-

sion proceedings.

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After living here for 16 years and applying for legalization, the applicant

before us left the United States on this particular occasion for family reasons.

Eligible to apply for both legalization and suspension of deportation when he

departed, he returned to this country and was deemed ineligible for admission

by the Immigration and Naturalization Service. Upon my review of the

record,1 and my own reading of the Immigration and Nationality Act and per-

tinent case law, I conclude that the Immigration Judge correctly analyzed the

circumstances of the applicant’s departure from the United States, and I share

her conclusion that the applicant’s trip was brief, casual, and innocent, and

did not meaningfully interrupt his presence in this country. Accordingly,

upon his return from India, the applicant was not required to seek admission

and was improperly placed in exclusion proceedings.

I. THE STATUTE REQUIRES IMMIGRATION JUDGES AND

THIS BOARD ALIKE TO ADDRESS BRIEF, CASUAL, AND

INNOCENT ABSENCES UNDER SECTION 245A

In the Immigration Reform and Control Act of 1986, Pub L. No. 99-603,

100 Stat. 3359, 3394, (“IRCA”) Congress created the legalization program

under which aliens long present in the United States could regularize their

immigration status. Congress provided that a legalization candidate who

makes a brief, casual, and innocent trip outside the United States does not

interrupt the required period of continuous physical presence. See sections

245A(a)(3)(A), (B) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1255a(a)(3)(A), (B) (1994). Thus, Congress included, within the legaliza-

tion program, the underlying rationale of Rosenberg v. Fleuti, 374 U.S. 449

(1963), that in appropriate circumstances aliens should be spared the unin-

tended consequences of a departure from the United States.

Specifically, Congress added to the legalization statute, the following

provision:

An alien shall not be considered to have failed to maintained [sic] continuous physical pres-

ence in the United States for purposes of subparagraph (A) by virtue of brief, casual, and

innocent absences from the United States.

Section 245A(a)(3)(B) of the Act.

The majority reads section 245A(a)(3)(B) of the Act narrowly, construing

it to relate solely to the legalization application itself and not to the general

ability of a legalization applicant to leave and return to the United States. See

1 This Board conducts a de novo review of the record. Matter of Burbano, 20 I&N Dec. 872,

874 (BIA 1994); Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). In my view, a de novo

review of the record is not limited only to arguments which may or may not have been framed

on appeal, but requires us to review the entire record and the order appealed to this Board with

respect to the governing statute and case law.

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supra note 8. I believe such a narrow reading to be incorrect.2 While this

Board may be limited in assessing an alien’s continuing eligibility for legal-

ization benefits, I do not believe we are equally constrained with regard to

other provisions of the Act, including an interpretation of section

245A(a)(3)(B) of the Act.

In the instant case, this Board need not examine the “brief, casual and

innocent” nature of the applicant’s trip as it relates to his continuing eligibil-

ity for legalization. However, we cannot refuse to perform this examination

as it relates to the applicant’s ability to return to the United States without

being treated as though he were seeking to enter. See Fernandes v. McElroy,

920 F. Supp. 428 (S.D.N.Y. 1996); De Olivera v. United States INS, 873 F.

Supp. 338 (C.D. Cal. 1994). To shut our eyes to this issue is to do more than

simply respect the Service’s authority over the legalization program. It is to

abdicate to the Service the authority to determine our own jurisdiction, and to

divest the phrase, first found in Rosenberg v. Fleuti, supra, of a meaning it

has maintained for over 30 years.

A. The Fleuti Doctrine

In Rosenberg v. Fleuti, supra, the Supreme Court carved out an exception

to the statutory definition of entry in the then-current version of section

101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1958), holding that a lawful

permanent resident who departs the United States for a brief, casual, and

innocent purpose does not meaningfully interrupt his or her period of resi-

dence. The Court concluded that the alien’s return to the United States does

not constitute an entry; rather, the alien’s status for all purposes should con-

tinue as before the departure. In so finding, the Court hesitated to strictly

define these terms, but instead left the definition to be developed “by the

gradual process of judicial inclusion and exclusion.” Id. at 462.

Congress was well aware of the historic meaning of Fleuti when it enacted

IRCA some 20 years later. See H.R. Rep. No. 682(I), 99th Cong., 2d Sess.

116, reprinted in 1986 U.S.C.C.A.N. 5649, 5720. We are bound to follow the

plain terms of the statute, and I would find that the traditional meaning of the

phrase “brief, casual, and innocent,” as included in IRCA, does not include a

2 As discussed infra, regulations found at 8 C.F.R. §§ 245a.2(l) and 245a.2(m) (1995)

require that a legalization applicant must secure advance parole prior to departing the United

States in order for the departure to be termed "brief, casual and innocent". The CSS litigation

and the ensuing Service policy memorandum have addressed how advance parole relates to an

alien's continuing eligibility for legalization, but other courts have considered the more

expansive question regarding whether advance parole is a valid requirement for admission after

a brief, casual, and innocent departure. At least two courts have concluded that the advance

parole requirement constitutes an ultra vires expansion by the Service of the express statutory

requirements for continuous physical presence. See Fernandes v. McElroy, 920 F. Supp. 428

(S.D.N.Y. 1996); De Olivera v. United States INS, 873 F. Supp. 338 (C.D. Cal. 1994); cf.

Kasbati v. INS, 805 F. Supp. 619 (N.D. Ill. 1992) (upholding the advance parole requirement).

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requirement of advance parole.3 In fact, as the court stated in De Olivera v.

United States INS, supra, at 343, “Congress intended not to encumber the

historical meaning of a brief, casual and innocent absence with artificial con-

straints such as arbitrary temporal limitations or advance parole.” I agree.

Whatever the effect of the regulation on the applicant’s eligibility under sec-

tion 245A, a matter for the federal courts to determine, I believe it inappropri-

ate to so restrict the term for all purposes under the Act.

B. Interpretation of Section 245A(a)(3)(B)

I read section 245A(a)(3)(B) to extend the benefit of the Fleuti doctrine to

legalization applicants, without reservation or limitation. As the majority

notes, the United States District Court for the Southern District of New York

held, in Fernandes v. McElroy, supra, that section 245A(a)(3)(B) of the Act

allows for brief, casual, and innocent absences, not only in relation to the

application phase, but throughout the pendency of the applicant’s legaliza-

tion adjudication. See also De Olivera v. United States INS, supra, at 342 n.8.

I agree. One court that has considered this issue has stated its conclusion this

way:

The legalization program established by IRCA provides applicants with important rights,

and applicants for legalization clearly occupy a protected position in the United States dur-

ing the period that they are seeking an adjustment of status. Thus, the rationale for applying

the entry exception to permanent resident aliens also applies to legalization applicants who

make a brief, innocent, casual departure from the United States. Such a departure does not

subject the aliens to the consequences of an “entry” upon their return.

Campos v. Smith, 791 F. Supp. 262, 265 (W.D. Wash. 1991).

Recently, in Matter of Chavez-Calderon, 20 I&N Dec. 744 (BIA 1993),

this Board itself gave support for this expansive interpretation of the Fleuti

doctrine as set forth in section 245A(a)(3)(B). Therein, we noted “a crucial

distinction” between special agricultural workers on the one hand and “aliens

eligible for adjustment under section 245A, lawful permanent residents, and

applicants for suspension of deportation on the other.” Id. at 748. Aliens in

the latter category, the Board observed, “possess some form of long-term res-

idence in the United States and concomitant ties to this country, a concern

which was foremost in the Supreme Court’s crafting of the Fleuti doctrine.”

Id.4 While this Board did not articulate the extent to which a legalization

3 Indeed, such limitation would be antithetical to the docrine itself. Properly applied, the

concept is meant to preserve the alien's predeparture status by not treating the alien's return as

constituting an entry. Instead, as discussed infra, the Service's regulation, 8 C.F.R. § 245a.2(m),

treats the alien as making even less than an entry: it places her or him in “parole status,” thus

requiring that any subsequent hearing be in the exclusion context, rather than the deportation

context. See, e.g., De Olivera v. United States INS, supra; Navarro-Aispura v. INS, 842 F.

Supp. 1225 (N.D. Cal. 1993), aff'd, 53 F.3d 233 (9th Cir. 1995); Campos v. Smith, 791 F. Supp.

262 (W.D. Wash. 1991).

4 This Board has also followed the United States Court of Appeals for the Ninth Circuit in

Ortega de Robles v. INS, 58 F. 3d 1355 (9th Cir. 1995), in recognizing the legal significance of

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applicant under section 245A of the Act is protected by the Fleuti doctrine,

my interpretation of section 245A(a)(3)(B) is consistent with notions of

equal protection due those long-term undocumented aliens awaiting tempo-

rary resident status.

I recognize that a determination by this Board on whether the applicant’s

trip satisfied the “brief, casual, and innocent” standard may be binding on a

subsequent assessment by the Service on whether the applicant satisfies the

legalization requirement for continuous physical presence. That is the rea-

son, I believe, why the majority seeks to avoid deciding this issue, asserting

that this matter is wholly within the province of the Service. While I concede

that some overlap will result if we exercise authority in this case, the alterna-

tive is wholly unacceptable. The Service has issued no assessment whether

the applicant’s trip satisfies the “brief, casual, and innocent” standard.

Because the majority refuses to consider the question, the issue will go to dis-

trict court without the benefit of any written assessment by the agency

entrusted with administering the Act and possessed with the expertise to

evaluate the effect of such departures. I believe the Act and case law allows

us to employ our expertise to address these issues.

II. AN ALIEN’S DEPARTURE AND RETURN MUST BE

CONSTRUED CONSISTENT WITH APPLICATIONS OF THE

ENTRY DOCTRINE IN OTHER SECTIONS OF THE ACT

I find support for this more expansive interpretation of section

245A(a)(3)(B) in the historic intent of the Supreme Court not only in

Rosenberg v. Fleuti, supra, but in Congress’ recent amendments to other stat-

utory provisions regarding the reentry doctrine. The applicant is not merely a

legalization candidate. Assuming that he can show he is of good moral char-

acter, that he can establish a period of continuous physical presence in the

United States for more than 7 years, and that he can demonstrate extreme

hardship flowing from his potential deportation to himself or to qualifying

family members, he is also eligible for suspension of deportation, a separate

form of statutory relief which may be granted in the exercise of discretion

under section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1) (1994).

Eligibility for this form of relief from deportation was enhanced by a pro-

vision in IRCA which added section 244(b)(2) to the Act. That amendment

provides that brief, casual, and innocent absences will not interrupt a period

of continuous presence for purposes of satisfying that requirement.5 Thus,

the ties forged as the result of longtime residence, and holding that a former legalization

applicant may count towards the requisite period of lawful domicile years of residence

accumulated while a temporary lawful resident. Matter of Cazares, 21 I&N Dec. 188 (BIA

1996); see also White v. INS, 75 F.3d 213 (5th Cir. 1996); Matter of Ponce De Leon, 21 I&N

Dec. 154 (BIA 1996).

5 In INS v. Phinpathya, 464 U.S. 183 (1984), the Supreme Court held that any departure from

the United States, however brief, broke the period of continuous residence required for

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not only should such absences have no effect on the applicant’s eligibility for

legalization under section 245A(a)(3)(B), they would also not render him

ineligible for suspension of deportation, should his legalization application

ultimately be denied by the Service.

Consider for a moment the Hobson’s choice faced by a legalization appli-

cant who sought to take advantage of these clear expressions of congressio-

nal compassion but needed to travel. If he or she obtained advance parole

from the Service, pursuant to 8 C.F.R. § 245a.2(m), eligibility for legaliza-

tion would be preserved. However, eligibility for suspension would be lost,

because the alien who travelled pursuant to advance parole would be return-

ing to the United States in “parole status” and thus would be subject to exclu-

sion proceedings. Alternatively, the legalization applicant could forego

advance parole (and the resulting loss of suspension eligibility) by departing

“without permission” and by attempting surreptitious entry upon return. To

do so, however, would be to jeopardize his or her eligibility for legalization.6

To read the statute as calling for such an unprecedented “election” of reme-

dies, one of which encourages an implicit disregard of the immigration laws,

creates a situation in which nobody wins.

Could Congress possibly have intended such a result? I think not. In

attempting to find a rational construction for these provisions, I believe it is

instructive to examine the way in which Congress handled the consequences

of a temporary departure for candidates for other forms of relief—family

unity and temporary protected status (“TPS”)—created as part of the Immi-

gration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (“IMMACT”).7 In

response to expressions of concern that family unity and TPS status holders

who obtained advance parole as then construed by the Service could forfeit

their right to apply for other forms of relief such as suspension of deportation,

Congress enacted section 304 of the Miscellaneous and Technical

suspension of deportation. Two years later, Congress abrogated the harsh effect of this decision

by enacting section 315(b) of IRCA, 100 Stat. at 3439-40, which added section 244(b)(2) to the

Act. That amendment provides that brief, casual, and innocent absences will not interrupt a

period of continuous residence. In enacting this change, Congress intended to replace the rigid

test in INS v. Phinpathya with a more flexible means of satisfying this statutory requirement for

suspension. See H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 78, reprinted in 1986 U.S.C.C.A.N.

5649, 5682.

6 Of course, as here, the legalization applicant who departs by choice or necessity without

advance parole can present himself to an immigration inspector at a port of entry, but without

extension of the statute as I urge here, he is likely to forego both legalization eligibility and

access to suspension.

7 The family unity provision was enacted as a short-term mechanism to address a problem

for alien relatives of legalization applicants. It provided for a stay of deportation for spouses

and children of aliens who were applying under the legalization program. See section 301 of

IMMACT, 104 Stat. at 5029. The temporary protected status provision, on the other hand,

added section 244A to the Immigration and Nationality Act, 8 U.S.C. § 1254a (1994). It created

a mechanism for granting safe haven to aliens in the United States who were temporarily unable

to return safely to their home due to war, natural disaster, or other emergency condition.

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Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232,

105 Stat. 1733, 1749. That provision stated that TPS or family-unity holders

who travel under advance parole “shall be inspected and admitted in the same

immigration status the alien had at the time of departure.” The provision also

specifically provides that this authorized departure will not affect the require-

ment of continuous physical presence for suspension of deportation if the

travel meets the requirements of section 244(b)(2) of the Act. Id.

A similar result could be reached easily for suspension-eligible aliens who

are also legalization applicants by simply construing the provisions of the

statute harmoniously. IRCA explicitly intended to make legal those in our

society who previously resided here without legal documentation. Like legal-

ization, suspension of deportation is a provision enacted by Congress to pro-

vide an alternate means for long-term residents to become lawful permanent

residents. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (in

ascertaining “plain meaning,” not only the particular statutory language, but

the language and design of the statute as a whole should be considered).8 It is

absurd to conclude that IRCA would confer a status—legalization appli-

cant—which would itself function to deprive a long-term resident of the abil-

ity to apply for suspension of deportation, simply because he or she departed

the United States under emergency conditions. It is equally absurd to read the

statute to hold that one who is a legalization applicant, based upon long-term

residence in the United States, leaves his suspension credentials at the door,

but that his qualifying family members who may have been here a shorter

time, do not.9

It simply cannot be the case that Congress authorized two forms of relief

in the same statute, only to force eligible aliens to abandon one by electing

the other. Indeed, if that is the case, then the entire purpose of IRCA is frus-

trated and those seeking to become part of our society legally are given a

mixed message. Thus, I believe we must look to see if there is another way

the suspension and legalization provisions can be reconciled.

8 In particular, it is unreasonable to conclude, as one might otherwise have to, that Congress

intended subsection 244(b)(2) to preserve eligibility for suspension only for those legalization

applicants who violate the Act by illegal reentry. As the Ninth Circuit recently emphasized,

“The evident statutory purpose [of subsection 244(b)(2)] is to recognize that a person who lives

for seven continuous years in the United States does not destroy his eligibility by actions that do

not affect his commitment to living in this country.” Castrejon-Garcia v. INS, 60 F.3d 1359,

1362 (9th Cir. 1995) (citations omitted).

9 See INS v. Phinpathya, supra, at 198 (Brennan, J., concurring) (stating that all laws should

receive a sensible construction and should not lead to injustice, oppression, or an absurd

consequence; therefore it always is presumed the legislature intended exceptions to its

language); Caminetti v. United States, 242 U.S. 470, 490 (1917) (finding that unless leading to

absurd or wholly impracticable consequences, plain language is the sole evidence of legislative

intent); see also Castellon-Contreras v. INS, 45 F.3d 149, 153 (7th Cir. 1995) (construing

“domicile” as distinct from “lawful permanent resident” status does not lead to an absurd result).

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By allowing TPS and family-unity aliens to reenter in the same status in

which they departed, Congress created a benefit for those who traveled with

the advance permission of the Service, a benefit not specifically created for

legalization applicants. If a legalization applicant obtains advance parole

from the Service (or, as is the case with the applicant before us, does not

require advance parole because of his CSS class membership), I believe that

we should construe the congressional silence in the legalization program to

have implicitly authorized the same form of relief explicitly granted to TPS

and family-unity aliens. This construction would allow the alien to return to

the status that he or she left upon her departure, so long as the absence is brief,

casual, and innocent. Similarly, a legalization applicant who attempts to

maintain eligibility for suspension by travelling without advance parole

should not be penalized for this action if the departure was brief, casual, and

innocent. In either case, the Immigration Judge must determine if the trip

falls within the contours of the “brief, casual, and innocent” standard. If so,

exclusion proceedings should be terminated.10

III. CONCLUSION

Nothing in this dissent should be read to advance the proposition that all

aliens in this country have a right to enter and depart at will, so long as their

departures are brief, casual, and innocent. As the Court of Appeals for the

Ninth Circuit has noted, while Congress has expanded the Fleuti doctrine to

legalization applicants and to aliens eligible for suspension of deportation, it

did not indicate that the doctrine applies to all undocumented aliens. See

Mendoza v. INS, 16 F.3d 335 (9th Cir. 1994). Nevertheless, for those aliens

who fall into these congressionally protected categories, I am convinced that

this Board has an obligation to assume jurisdiction where required and to

construe the various statutory enactments in a way that advances the clear

and compassionate intent of the Congress.

By focusing its decision exclusively on the issues pertaining to the appli-

cant’s status as a legalization candidate, the majority fails to address the nut

of the issue: whether or not exclusion proceedings are proper. Given Con-

gress’ express intention to apply the “brief, casual, and innocent” concept to

legalization and a variety of other situations, I would find the applicant’s

departure not to have been meaningful, and his return not to constitute an

entry within the meaning of the Act. Should the Service determine it is

10 While originally this Board held in Matter of Torres, 19 I&N Dec. 371 (BIA 1986), that it

would not extend the Fleuti doctrine to aliens who had not been admitted for lawful permanent

residence, I believe the prior decisions of this Board should be viewed in light of two

developments: 1) the extension of the “brief, casual, and innocent” principle to contexts other

than those involving the departures of lawful permanent residents; and 2) the significant

statutory change to section 244 of the Act. Moreover, as noted previously, the Board has

revisited this issue and arrived at a different conclusion, albeit in dicta, in Matter of

Chavez-Calderon, supra.

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appropriate to treat him as present in this country without authorization, or in

violation of any other provision of the Act, it may pursue these or any other

charges in the deportation context.

443