MORALES

Interim Decision #3259

Interim Decision #3259

In re Salvador MORALES, Applicant

File A29 690 912 - El Paso

Decided December 7, 1995

Decided September 11, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Where an alien in exclusion or deportation proceedings requests administrative closure

pursuant to the settlement agreement set forth in American Baptist Churches et al. v.

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC agreement”), the function of the

Executive Office for Immigration Review (“EOIR”) is restricted to the inquiries required

under paragraph 19 of the agreement, i.e., (1) whether an alien is a class member, (2)

whether he has been convicted of an aggravated felony, and (3) whether he poses one of the

three safety concerns enumerated in paragraph 17.

(2) If a class member requesting administrative closure under the ABC agreement has not been

convicted of an aggravated felony and does not fall within one of the three listed categories

of public safety concerns under paragraph 17 of the agreement, EOIR must administratively

close the matter to afford the alien the opportunity to pursue his rights in a special proceed-

ing before the Immigration and Naturalization Service.

(3) If the applicant is subsequently found ineligible for the benefits of the ABC agreement in

the nonadversarial proceeding before the asylum officer, or if he is denied asylum after a full

de novo hearing, the Service may reinstitute exclusion or deportation proceedings by filing a

motion with the Immigration Judge to recalendar the case, and such motion need only show,

through evidence of an asylum officer’s decision in the matter, that the class member’s

rights under paragraph 2 of the agreement have been exercised.

(4) Neither the Board of Immigration Appeals nor the Immigration Judges will review the Ser-

vice’s eligibility determinations under paragraph 2 of the ABC agreement.

(5) An interlocutory appeal will ordinarily be considered moot upon the alien’s departure

under an order of exclusion and deportation, but such an appeal need not be considered moot

in each and every circumstance, particularly where the order of exclusion was erroneous and

the issue raised has continuing importance to the proper administration of the immigration

laws. Matter of Okoh, 20 I&N Dec. 864 (BIA 1994), distinguished.

FOR APPLICANT: Michael S. Gallagher, Esquire, El Paso, Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Lee Abbott, General

Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

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

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Concurring Opinion: ROSENBERG, Board Member. Concurring and Dissenting Opinion:

HOLMES, Board Member.

SCHMIDT, Chairman:

In a memorandum dated January 16, 1995, an Immigration Judge found

that the applicant was properly placed in exclusion proceedings. She denied

his motion to administratively close the matter pursuant to the settlement

agreement set forth in American Baptist Churches v. Thornburgh, 760 F.

Supp. 796 (N.D. Cal. 1991) (“ABC agreement”). The applicant filed this

interlocutory appeal. The interlocutory appeal will be sustained and the pro-

ceedings will be administratively closed.

I. BACKGROUND

The facts are not in dispute. The applicant is a male alien who claims to be

a native and citizen of El Salvador. He originally entered the United States in

December 1989. On December 3, 1991, he registered to become a member

of the class of aliens entitled to certain rights under the ABC settlement

agreement, pursuant to which he received work authorization. In early 1994,

the applicant left the United States, allegedly to attend to family matters in

Honduras. He sought reentry on or about December 23, 1994. At that time, he

was apprehended and alleged to be excludable, both as an alien without valid

entry documents and as an alien who sought entry through fraud.

The applicant appeared before an Immigration Judge. Through counsel,

the applicant moved that the proceedings be administratively closed pending

adjudication of an application for asylum before an asylum officer of the

Immigration and Naturalization Service pursuant to the ABC settlement

agreement. He presented two unpublished, nonprecedent decisions of this

Board in support of his motion.1 These decisions interpreted the ABC agree-

ment to require administrative closure under circumstances similar to those

presented here. The Service opposed the motion.

The Immigration Judge denied the applicant’s motion to administratively

close the case. She found that the applicant was not “present” in the United

States so as to become eligible for benefits under the agreement. The appli-

cant filed this interlocutory appeal.

II. INTERLOCUTORY CONSIDERATION

We do not ordinarily consider interlocutory appeals. However, we have,

on occasion, ruled on the merits of such appeals where we deemed it neces-

sary to address important jurisdictional questions regarding the administra-

tion of the immigration laws or to correct recurring problems in the handling

1 The prior cases were Matter of Pena-Menjivar, A70 436 348 (BIA December 20, 1991),

and Matter of Bradley, A72 433 931 (BIA May 18, 1994).

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of cases before the Immigration Judges. See Matter of Guevara, 20 I&N Dec.

238 (BIA 1990, 1991), and cases cited therein.

In the instant case, the applicant’s interlocutory appeal raises important

issues regarding the proper administration of the ABC settlement agreement.

The resolution of these issues is necessary to clarify the respective roles of

the Service and the Immigration Judges in implementing the agreement.

Consequently, we will consider the interlocutory appeal.

III. THE ABC AGREEMENT

The ABC litigation arose out of systemic challenges by certain

Salvadorans and Guatemalans in the United States to the processing of asy-

lum claims filed under section 208(a) of the Immigration and Nationality

Act, 8 U.S.C. § 1158(a) (1988). American Baptist Churches v. Thornburgh,

supra, at 799. The settlement agreement contemplates a special procedure

under which alien class members are entitled, under certain specified condi-

tions, to new proceedings before the Service to determine their right to asy-

lum or any other rights and benefits established under the agreement. It is

therefore ameliorative in nature. Thus, it is important in interpreting the

agreement to assure that all persons covered receive the procedural rights and

benefits before the Service to which the agreement entitles them.

The agreement provides that those class members who are in exclusion or

deportation proceedings, and who do not pose any specified public safety

concerns, may have their cases administratively closed pending the exercise

of their rights before an asylum officer of the Service. The sections of the

ABC agreement relevant to this appeal are in paragraphs 1, 2, 17, and 19.

They are set forth in pertinent part as follows.

Paragraph 1 of the agreement defines class members as:

a. all Salvadorans in the United States as of September 19, 1990; and

b. all Guatemalans in the United States as of October 1, 1990.

American Baptist Churches v. Thornburgh, supra, at 799.

Paragraph 2, entitled “CLASS MEMBERS ELIGIBLE FOR DE NOVO

ASYLUM ADJUDICATION,” sets forth a special asylum process before the

Service for class members and describes a subset of class members who are

eligible for a de novo asylum adjudication. These include certain Salvadoran

and Guatemalan class members who:

indicate to the INS their intent in writing to apply for a de novo asylum adjudication before

an Asylum Officer, or otherwise receive the benefits of this agreement, within [a specified

period].

Id. at 799-800. Paragraph 2 adds the following proviso relative to the eligi-

bility of the above class members for benefits under the agreement:

However, Salvadoran and Guatemalan class members who were interviewed by an Asylum

Officer regarding their asylum applications between October 1, 1990, and November 23,

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1990, will not be entitled to obtain a new asylum interview or a new initial Asylum Officer

adjudication but will be entitled to all other rights and benefits they would otherwise receive

under this agreement . . . . Class members apprehended at time of entry after the date of pre-

liminary approval of this agreement shall not be eligible for the benefits hereunder.

Id. at 800.

Paragraph 17 of the agreement, entitled “DETENTION OF CLASS

MEMBERS ELIGIBLE FOR RELIEF,” sets forth conditions under which

the Service can detain class members as follows:

The INS may only detain class members, eligible for relief under paragraph 2, who are oth-

erwise subject to detention under current law and who: 1) have been convicted of a crime

involving moral turpitude for which the sentence actually imposed exceeded a term of

imprisonment in excess of six months; or 2) pose a national security risk; or 3) pose a threat

to public safety.

Id. at 804 (emphasis added).

Paragraph 19 of the agreement provides for administrative closure of pro-

ceedings before an Immigration Judge or this Board pending a new asylum

adjudication under specified conditions. It states, in relevant part, that “any

class member” in proceedings commenced after November 30, 1990, who

has not yet exercised his rights under the agreement

may ask the Immigration Court or the [Board of Immigration Appeals] to administratively

close his or her case and the case will be administratively closed unless the class member

has been convicted of an aggravated felony or is subject to detention under paragraph 17.

Id. at 805.

IV. THE ISSUE PRESENTED

The applicant invokes Paragraph 19 of the ABC settlement agreement to

claim his right to administrative closure. He argues: (1) that such closure

entitles him to a further proceeding before the Service under paragraph 2 of

the agreement, and (2) that any further determinations regarding his eligibil-

ity for benefits under the agreement must be made by the Service in that sepa-

rate proceeding.

The Service argues, on the other hand, that before the Board can decide if

administrative closure is appropriate under paragraph 19, we must address a

number of substantive questions under paragraph 2, which determines an

alien’s eligibility for a new asylum adjudication. The Service further con-

tends that under paragraph 2, the applicant is not “eligible for the benefits” of

the agreement, including administrative closure, because he was “appre-

hended at time of entry.”

The ultimate question before us is whether the Service or the Executive

Office for Immigration Review (“EOIR”)2 has the responsibility for making

2 The Executive Office for Immigration Review, which includes the Immigration Judges and

the Board of Immigration Appeals, is an agency separate and distinct from the Immigration and

Naturalization Service. 8 C.F.R. § 3.0 (1995).

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substantive determinations regarding an alien’s eligibility under the ABC

agreement.

V. ANALYSIS

A. Interpretation of the Terms of the Settlement Agreement

The substance of the ABC agreement is addressed to the Service and to

certain applicants for asylum before the Service. The agreement also appro-

priately assigns to the Service and EOIR different roles in the implementa-

tion of its terms. These roles are set forth in separate paragraphs. In

interpreting the role of EOIR in the administration of the ABC agreement, we

look first to paragraph 19 since this is the sole paragraph which specifies any

role for the Immigration Judges and the Board.

Paragraph 19 of the agreement provides for administrative closure upon

request to “any class member” who has not been convicted of an aggravated

felony and who poses none of the specified public safety concerns contained

in paragraph 17. Thus, the Immigration Judges or the Board must first deter-

mine whether the alien requesting administrative closure is a class member

under paragraph 1 of the agreement.

The mandate of paragraph 19 that “any class member” may request

administrative closure clearly precludes EOIR from imposing on an alien

determined to be a class member any eligibility restrictions beyond those

specifically stated in that paragraph. Therefore, if a class member has not

been convicted of an aggravated felony and does not fall within one of the

three listed categories of public safety concerns under paragraph 17, EOIR

must administratively close the matter to afford the alien the opportunity to

pursue his rights in a special proceeding before the Service.

The agreement does not call upon EOIR to make any further substantive

determinations regarding an alien’s eligibility, which, under paragraph 2, are

to be made by the Service. Thus, the limited role assigned to EOIR, that of

assuring that each qualified alien class member has an opportunity for an eli-

gibility determination by an asylum officer, is essentially procedural and tan-

gential. Accordingly, we conclude we have no authority to interfere in the

special, ameliorative procedure set forth in the agreement by making the sub-

stantive determinations required of the Service under paragraph 2.3

3 While we agree with the dissenting opinion that the language of the ABC agreement itself

is determinative, we believe the dissent’s emphasis on the language of paragraph 2 begs the

broader question: Who is to interpret that language? As we indicate herein, we find that the

language and structure of the agreement indicate that paragraph 2 is addressed to the Service

and not to EOIR.

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B. Policy Considerations

We also find significant policy reasons for concluding that the role of

EOIR in administering the ABC agreement should be minimal. In our view,

the process of adjudication will be more orderly if the function of EOIR is

restricted to the inquiries required under paragraph 19, i.e., whether an alien

is a class member, whether he has been convicted of an aggravated felony,

and whether he poses one of the safety concerns enumerated in paragraph 17.

Involving EOIR in issues of substantive eligibility under paragraph 2 of the

agreement would only further complicate its already cumbersome process

and invite additional legal challenges to the procedure.

For example, issues could arise regarding the timeliness of a filing for the

de novo asylum adjudication, the possible disqualification of an alien from

further consideration on the basis of a previous asylum interview, and the

interpretation of such terms in paragraph 2 as “all other rights and benefits

they would otherwise receive” under the agreement. Adjudication of these

issues could lead to multiple avenues of further appeal, thus creating a poten-

tial morass of additional litigation instead of providing settlement.

By contrast, under our interpretation of the agreement, it is clear who is

entitled to a proceeding before the asylum officer. Once the asylum officer

determines eligibility for benefits under the agreement and/or eligibility for

asylum, the requirements of the agreement are satisfied and administrative

litigation of the issues then comes to an end.

C. Application of the Agreement

The applicant’s registration for class membership in accordance with

paragraph 1 is undisputed. The Service has not shown that he has been con-

victed of an aggravated felony or that he falls within one of the enumerated

categories of aliens who are a public safety concern under paragraph 17. Con-

sequently, the exclusion proceedings in this case must be administratively

closed.

Of course, if the applicant is found ineligible for the benefits of the ABC

agreement in the nonadversarial proceeding before the asylum officer, or if

he is denied asylum after a full de novo hearing, the Service may reinstitute

proceedings by filing a motion with the Immigration Judge to recalendar the

case. Such motion need only show, through evidence of an asylum officer’s

decision in the matter, that the class member’s rights under paragraph 2 of the

agreement have been exercised. At that point, the Government’s responsibil-

ities under the agreement with respect to the particular alien are completed

and the proceedings may continue in accordance with the usual requirements

of the Immigration and Nationality Act. Neither the Board nor the Immigra-

tion Judges will review the Service’s eligibility determinations under para-

graph 2.

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VI. AUTHORITY AND POLICY ARGUMENTS

In its brief in opposition to the appeal, the Service advances several addi-

tional arguments. First, the Service contends that our prior unpublished deci-

sions, and the applicant’s arguments on appeal, are erroneous or unsound for

policy reasons. The Service also asserts that, in any case, the applicant has

lost his class membership and is therefore ineligible for administrative clo-

sure. Finally, the Service argues in the alternative, and somewhat incongru-

ously, that we have no authority to pass upon the issue presented.

A. Propriety of the Board’s Policy

The Service first argues that as a matter of policy, its interpretation of the

ABC agreement must be accepted to avoid a serious enforcement problem

that could not have been intended under the agreement. It is alleged that

under our interpretation, the Service will be unable to control the borders pur-

suant to its mandate, because innumerable aliens could enter the country with

impunity and avoid detention and exclusion or deportation proceedings sim-

ply by invoking the ABC agreement.

This argument is unfounded. As we noted above, before an alien is enti-

tled to administrative closure under paragraph 19 of the agreement, he must

establish that he is a “class member.” That is, he must show that he is within

the finite class of persons who registered for ABC benefits, at a time certain,

under paragraph 1 of the agreement. Failing this, the normal enforcement

procedures, as well as adjudication in exclusion or deportation proceedings,

will continue without interruption. See, e.g., Arreaza-Cruz v. INS, 39 F.3d

909 (9th Cir. 1994) (holding that an alien’s deportation was legally executed

after he failed to file for class membership under the ABC agreement).

As the applicant points out, this Board has already issued two unpublished

decisions on the issue of the ABC settlement agreement, reaching essentially

the same conclusion as we reach here. The Service has not challenged these

decisions for 3 1/2 years. Presumably, therefore, these decisions have posed

no unmanageable administrative difficulties.

We note that cases of imposters or individuals who pose a public safety or

security risk are adequately dealt with under paragraph 19 of the agreement.

In other cases, the Service itself has the power to expedite “paragraph 2”

determinations whenever necessary to minimize any administrative difficul-

ties associated with enforcement.

Finally, if, in the judgment of the Service, the ABC agreement has been

misinterpreted, the appropriate remedy is to petition the district court with

jurisdiction over the agreement for a modification or clarification. See Ameri-

can Baptist Churches v. Thornburgh, supra, at 809-10 (providing specifi-

cally for retention of jurisdiction in case of repudiation of the agreement by

any party). The Service has not done this. Consequently, we are not

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persuaded that our interpretation of the ABC agreement represents improper

policy.

B. Applicant’s Class Membership Following Departure

The Service argues further, however, that even if our reasoning in this

regard is correct, it does not apply here because the applicant left the United

States without permission and has not been readmitted.

We find no basis in the ABC agreement for the proposition that a class

member loses his class membership upon departing from and returning to the

United States. A close reading of the language of paragraph 19 renders unten-

able the proposition that it applies only in deportation proceedings and not in

exclusion proceedings. Further, while a class member’s ultimate eligibility

for the full benefits of the ABC agreement may vary, there is simply no provi-

sion for the lapse of class membership itself, at least under the circumstances

presented here. Consequently, until such time as a determination is made by

an asylum officer as to this applicant’s eligibility for benefits under the agree-

ment, administrative closure is appropriate.

C. Challenges to Board Authority

Finally, as noted above, the Service offers two challenges to our authority

to pass on the issue presented. First, the Service argues that under our own

precedent decisions, administrative closure may not be granted where one of

the parties has not agreed to such closure. See Matter of Lopez-Barrios, 20

I&N Dec. 203 (BIA 1990). As the agreement makes clear, however, the Ser-

vice officially and formally agreed to administrative closure whenever called

for under the ABC settlement agreement. American Baptist Churches v.

Thornburgh, supra, at 799 (“[T]his agreement imposes binding obligations

on the parties . . . .”). The Service’s argument in this regard is therefore alto-

gether unfounded.

Next, the Service argues that this Board is without authority or subject

matter jurisdiction to rule upon this matter at all and may not issue binding

decisions directing the Service to adhere to the Board’s interpretation of the

agreement. This argument is erroneous in three fundamental respects.

First, this Board has jurisdiction over appeals from the decisions of Immi-

gration Judges generally, pursuant to regulations, and we must exercise such

authority, conferred by law upon the Attorney General, as is necessary and

appropriate to the disposition of the cases before us. 8 C.F.R. §§ 3.1(a)(1), (d)

(1995).

Second, nothing in the ABC agreement alters this jurisdictional structure,

notwithstanding the Service’s argument that the ABC agreement “impliedly”

vests all review in the courts. On the contrary, paragraph 19 of the agreement

states explicitly that under specified circumstances, when an alien requests of

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this Board that the proceedings be administratively closed, such request will

be granted.

Third, decisions of this Board are binding on all officers and employees of

the Service in the administration of the Immigration and Nationality Act. 8

C.F.R. §§ 2.1, 3.0, 3.1(g) (1995); see also United States ex rel. Accardi v.

Shaughnessy, 347 U.S. 260 (1954) (discussing the duty of the Board to exer-

cise its own independent judgment where the Attorney General has, by regu-

lation, delegated this responsibility to the Board). Thus, our disposition of

this matter is proper under both the applicable regulations and the ABC

agreement.

VII. CONCLUSION

Since the applicant is an ABC class member, has not been convicted of an

aggravated felony, and does not pose any of the public safety concerns set

forth in paragraph 17 of the ABC settlement agreement, he is entitled to

administrative closure. Therefore, his interlocutory appeal will be sustained.

ORDER: The interlocutory appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Judge with instructions to administratively close the exclusion proceedings

pending the outcome of proceedings before an asylum officer under the terms

of the ABC agreement.

Board Members Gerald S. Hurwitz and Lauri S. Filppu did not participate in

the decision in this case.

CONCURRING OPINION: Lory D. Rosenberg, Board Member

I respectfully concur.

At issue is whether a class member is entitled to have his exclusion hear-

ing administratively closed pending his pursuit of benefits under the settle-

ment agreement in American Baptist Churches v. Thornburgh, 760 F. Supp.

796 (N.D. Cal. 1991) (“ABC agreement”). I agree with the majority that the

substance of the ABC settlement agreement is addressed to the Immigration

and Naturalization Service and certain applicants for asylum before the Ser-

vice. The majority concludes that the ultimate question is whether the Execu-

tive Office for Immigration Review (“EOIR”) has authority to make

substantive determinations under the ABC settlement agreement, in the first

instance, and answers that question: No. Board Member Holmes, concurring

and dissenting in part, differs; he finds that the express language of the agree-

ment in paragraphs 2, 17, and 19 controls and authorizes us to determine

whether the circumstances in which the applicant here finds himself—having

been apprehended upon his return to the United States from an emergency

departure to attend to an ill parent and charged with being inadmissible—

renders him ineligible for ABC benefits.

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I agree with Board Member Holmes that the express language of the

agreement controls, but I concur with the result reached by the majority,

because I take issue with the reliance of both the majority and Board Member

Holmes on not only paragraphs 1 and 19, but paragraphs 2 and 17. Rather, I

find that the language relevant to the instant determination dictates a process

which compels the conclusion that class membership alone is determinative

of the right to obtain administrative closing of EOIR proceedings.

The ABC settlement agreement, which contains 42 paragraphs, is

designed to ameliorate systemic defects in the prior processing of Salvadoran

and Guatemalan asylum claims by providing a fresh opportunity for most

class members to present their applications under sections 208 and 243(h) of

the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1253(h) (1994), for

protection from persecution in their homelands.1 The agreement defines

those who qualify as such class members according to the date of an individ-

ual’s first presence “in the United States.” For a Salvadoran individual that

date is September 19, 1990; for a Guatemalan individual that date is October

1, 1990. ABC agreement paragraph 1.

Additional ABC agreement paragraphs are referred to in the appeal before

us, including paragraphs 2, 17, and 19. The language of paragraph 19, which

provides for the administrative closing of cases upon the request of a class

member, is plain.2 Paragraphs 2 and 17 are more tangentially related to the

precise issue before us. They relate respectively to treatment of certain class

members with respect to new adjudications and detention.3

In the case before us, the applicant seeks administrative closing of these

proceedings under paragraph 19 of the ABC settlement agreement. He is

Salvadoran by nationality and he has not been convicted of an aggravated fel-

ony. There is no dispute that he has established class membership by virtue

of an entry in 1989 (which occurred prior to September 19, 1990, the closing

date set by the agreement) or that he was previously present in the United

States until 1994. He is presently in exclusion proceedings and subject to the

1 A range of benefits is provided, from interim employment authorization to procedural

protections, such as administrative closure and release from Service custody, to de novo asylum

interviews.

2 Paragraph 19 refers to class members who are entitled to a stay of deportation or “whose

proceeding was commenced after November 30, 1990 . . . [who] may ask the Immigration

Court or the BIA to administratively close his or her case and the case will be administratively

closed unless the class member has been convicted of an aggravated felony or is subject to

detention under paragraph 17.”

3 Specifically, the paragraphs refer to those class members who “if they have not been

convicted of an aggravated felony . . . will be afforded a de novo, unappealable asylum

adjudication before an asylum officer” (paragraph 2); and who are eligible for relief under

paragraph 2 who may be detained (paragraph 17).

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Service’s detention based upon its claim that his departure and return to the

United States was meaningful and broke the continuity of his presence,

causing him to have effected an “entry” which would extinguish his eligibil-

ity for paragraph 2 benefits. Whether or not that is the case remains to be

determined.4

My position is simple. The ABC agreement is straightforward and its lan-

guage is clear on its face. While we need not reach the intent behind the

agreement to determine the issue before us, the intent also is clear: it is

intended to provide Salvadoran and Guatemalan class members a de novo

opportunity to apply, to be interviewed, and to be considered fairly for politi-

cal asylum by a Service asylum officer.5 That includes precluding detention

and the prosecution of charges before EOIR until such time as a class mem-

ber has had an opportunity to be considered by the asylum officer. In particu-

lar, the agreement provides that one who is a class member may, if an EOIR

proceeding is pending or commenced after November 30, 1990, request and

have that case closed administratively. The operation of this provision is lim-

ited only in two instances—where the class member has been convicted of an

aggravated felony or is subject to detention under paragraph 17, which in turn

references paragraph 2.

Paragraph 2 contains, at the end, two limitations on eligibility for de novo

benefits—one is for those who were interviewed by an asylum officer

between October 1, 1990, and October 23, 1990, as contemplated by the

agreement, and one is for those who were apprehended at entry after the

ABC settlement agreement’s preliminary approval.6 I conclude that these are

4 Indeed, once this applicant presents himself to a Service asylum officer (“AO”) for a

determination of eligibility under paragraph 2, a number of developments may occur. The AO

may find that there was no meaningful break in presence so that the applicant was not

“apprehended at entry” after the date of approval of the ABC agreement and therefore is not a

class member divested of eligibility. The AO may find that the applicant did make an entry and,

as a result of the Service’s apprehension, was “apprehended at entry,” notwithstanding that he

already had established class membership. The parties may dispute and resolve the issues

among themselves, or may seek clarification from the federal court over the meaning of the last

clause of paragraph 2 with regard to those persons who are apprehended at the time of entry into

the United States after the settlement approval date. Or, the AO may determine that this class

member cannot establish eligibility for de novo hearing benefits. Should that be the case, this

matter would come before the Immigration Judge and then would be ripe for an independent

determination regarding whether exclusion or deportation proceedings are the proper forum in

which to proceed.

5 Indeed, in a January 11, 1991, memorandum to EOIR personnel, former Chief Immigration

Judge Robie emphasized that “[s]ome members of the class are entitled to a de novo asylum

adjudication before an INS asylum officer pursuant to the asylum regulations that became

effective on October 1, 1990" and ”[w]e have purposely been over rather than under inclusive

in our decisions to administratively close matters in order to assure the broadest opportunity to

TPS and ABC eligible individuals."

6 The afterthought clause of paragraph 2, referenced above, does not specify the reasons that

the parties choose to include it, and I will not speculate either concerning the objectives

underlying it or its intended scope. Nevertheless, I do take note of the terminology of the clause

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conditions subsequent to class membership and therefore not relevant to our

action in administratively closing the case before us.

The language of the agreement is explicit. Paragraph 19, by its terms, is

tied only to paragraph 1. For purposes of determining whether or not admin-

istrative closure is available here, it is class membership under paragraph 1,

and not ultimate eligibility for de novo benefits under paragraph 2, which

controls. Paragraph 2’s final clause extinguishing eligibility for the benefits

of class membership is a condition subsequent and is not determinative of

class membership. One need not be fully qualified for the ultimate benefit in

order to warrant treatment under the terms and conditions of the settlement

agreement. I thus concur that the applicant is entitled to such administrative

closure on request under the ABC agreement. This reading of the agreement

does not divest us of authority to determine whether or not an entry has been

made, a task we may well face once an asylum officer reviews eligibility

under paragraph 2.7 But we may not address that issue in determining the

applicant’s entitlement to administrative closure, just as we may not address

other eligibility issues, before it is determined according to the provisions of

the agreement.

CONCURRING AND DISSENTING OPINION: David B. Holmes,

Board Member

I respectfully concur in part and dissent in part.

I.

The facts in this case would not appear to be in dispute. The applicant is a

native and citizen of El Salvador who initially entered the United States in

December 1989. He was included within the class of aliens entitled to

certain rights under the provisions of the stipulated settlement agreement in

which refers to entry “after the date of preliminary approval” rather than generically to all

apprehensions at entry. (Emphasis added.) In so doing I am struck by the apparent effort to

discourage entries by putative class members who may have been in the United States on or

before September 19, 1990, but who had left and might have considered returning later upon

learning of preliminary approval of the agreement.

7 I reject the argument made arguendo by the Service that we have no authority to pass upon

the issue presented—whether or not administrative closing of this case pursuant to paragraph

19 is proper. It is explicit in the terms of the agreement for us to review such cases as may come

before us to determine whether or not they should proceed or must be closed administratively

according to the settlement agreement. Nevertheless, I disagree with the position taken by the

dissent that either we or the Immigration Judge have jurisdiction and are called upon by the

agreement to make determinations concerning the collateral effects of class membership or

eligibility for other substantive benefits under the agreement. In my view, the agreement does

not contemplate EOIR’s resolving substantive disputes concerning ABC class member status

or entitlement to class member benefits except in only the most peripheral and jurisdictional

way.

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American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal.

1991) (“ABC agreement”).1 He registered as a class member under the ABC

agreement and received work authorization.

The applicant left the United States in February 1994 and traveled to Hon-

duras after receiving word that his mother was “quite ill and needed medi-

cine.” He departed without advance permission to return. On or about

December 23, 1994, he arrived at the port of entry in El Paso, Texas, and

made a false claim to United States citizenship in an unsuccessful attempt to

gain entry into the United States. He was denied entry and detained.

In accordance with the provisions of section 235(b) of the Immigration

and Nationality Act, 8 U.S.C. § 1225(b) (1994), exclusion proceedings were

commenced before an Immigration Judge for further inquiry regarding the

applicant’s admissibility. The decision of the Immigration Judge reflects that

the applicant admitted that he made a false claim to United States citizenship

but argued that he was admissible based on his previous grant of work autho-

rization. The Immigration Judge ultimately found the applicant excludable

under sections 212(a)(6)(C)(i) and (7)(A)(i)(I) of the Act, 8 U.S.C.

§§ 1182(a)(6)(C)(i) and (7)(A)(i)(I) (1994), based on his admissions and the

documentary evidence of record. The exclusion proceedings were continued

to provide the applicant the opportunity to apply for asylum and withholding

of deportation before the Immigration Judge. Through counsel, however, the

applicant argued that he was entitled under the terms of the ABC agreement

to have the exclusion proceedings administratively closed so that his applica-

tion for asylum could be adjudicated by an Immigration and Naturalization

Service asylum officer. The Service opposed the motion. The motion was

denied by the Immigration Judge. This interlocutory appeal followed.

II.

I initially note that I concur with the majority opinion insofar as it rejects

the argument by the Service that the Immigration Judge and the Board lack

subject matter jurisdiction to interpret and enforce “any” of the provisions of

the ABC agreement. The settlement agreement creates issues regarding the

administrative closure of cases that must be resolved during the course of

exclusion or deportation proceedings. As a party to these proceedings, the

Service cannot dictate to an Immigration Judge or the Board how contested

provisions of the ABC agreement that are determinative of issues raised in

exclusion or deportation proceedings must be interpreted.

1 The ABC stipulated settlement agreement is set forth in its entirety as an appendix to the

district court decision in American Baptist Churches v. Thornburgh, supra. Accordingly, it

will not be appended here. However, the rather abstract discussion of the issues in this case may

be somewhat easier to follow if this decision and the majority’s are read in conjunction with the

complete settlement agreement.

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I also agree with the majority that the Board’s decision in Matter of

Lopez-Barrios, 20 I&N Dec. 203 (BIA 1990) (holding that “the administra-

tive closing procedure should not be used if it is opposed by either party”), is

not determinative here. The issue before us is whether the Service stipulated

in the ABC agreement to the administrative closure of cases such as this. If

the Service did so stipulate, it has consented to the administrative closure of

this case.

However, as I agree with the Immigration Judge that administrative clo-

sure of this case is not mandated by the terms of the ABC agreement, I dissent

from the majority’s contrary conclusion.

III.

The issue of whether the applicant is entitled to administrative closure and

a de novo asylum adjudication before a Service asylum officer is controlled

by the provisions of the ABC agreement itself. Although I say so with a cer-

tain hesitancy as I am alone in dissent on this point, the issue seems clearly

resolved to me by the express language of the agreement.

The applicant is a member of the class described in paragraph 1 of the

ABC agreement. Paragraph 2 of the agreement (entitled “Class Members

Eligible for De Novo Asylum Adjudication”) describes the class members

eligible for a de novo, nonappealable asylum adjudication before a Service

asylum officer. Paragraph 2 concludes with the sentence: “Class members

apprehended at time of entry after the date of preliminary approval of this

agreement shall not be eligible for the benefits hereunder.” (Emphasis

added.) It is undisputed that the applicant was apprehended after the date of

preliminary approval of the agreement while attempting to enter the United

States. Consequently, I would conclude he is not eligible for benefits under

the ABC agreement.

The majority focuses on language in paragraphs 17 and 19 of the ABC

agreement. But I do not find that either of those paragraphs can be read to cre-

ate benefits for which paragraph 2 specifically states the applicant is

ineligible.

Paragraph 17 of the agreement is captioned “Detention of Class Members

Eligible for Relief.” The first sentence of this paragraph reads:

The INS may only detain class members, eligible for relief under paragraph 2, who are oth-

erwise subject to detention under current law and who: 1) have been convicted of a crime

involving moral turpitude for which the sentence actually imposed exceeded a term of

imprisonment in excess of six months; or 2) pose a national security risk; or 3) pose a threat

to public safety. (Emphasis added.)

By its express terms, paragraph 17 only places limitations on the detention of

certain class members “eligible for relief under paragraph 2.” As this appli-

cant is not eligible for relief under paragraph 2, paragraph 17 does not

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preclude the Service from detaining him (i.e., he is subject to detention under

paragraph 17).

Likewise, paragraph 19 of the agreement does not entitle this applicant to

administrative closure of these exclusion proceedings. The language in para-

graph 19 referenced by the majority reads:

However, any class member whose deportation proceeding is based on a criminal ground of

deportability or whose proceeding was commenced after November 30, 1990, will not have

his or her case automatically administratively closed on or before January 31, 1991. Rather,

that individual may ask the Immigration Court or the BIA to administratively close his or

her case and the case will be administratively closed unless the class member has been con-

victed of an aggravated felony or is subject to detention under paragraph 17. (Emphasis

added.)

In the instant case, the applicant’s proceedings were commenced after

November 30, 1990, and he is subject to detention under paragraph 17

because he is not “eligible for relief under paragraph 2.” Thus, he is not enti-

tled to administrative closure under paragraph 19.

I find no basis to conclude that any language in paragraph 17 or 19 of the

ABC agreement renders the applicant eligible for benefits under the settle-

ment agreement in the face of the clear language to the contrary in paragraph

2 of the agreement.

Further, I am not persuaded by the majority’s view that an Immigration

Judge or this Board cannot address the question whether the applicant was

“apprehended at time of entry” because there is no express reference in para-

graph 2 of the ABC agreement to Immigration Judges or the Board making

such a determination. I note that there similarly is no reference in paragraph

17 to Immigration Judges or the Board making a determination whether a

class member falls within the special detention rules of that paragraph. How-

ever, to make the determination of whether an applicant is entitled to admin-

istrative closure under paragraph 19, we are obliged to look to both

paragraphs 2 and 17 because the latter paragraph specifically references eli-

gibility for relief under the former. I am no more willing to have the Service

dictate for purposes of “administrative closure” under paragraph 19 whether

a class member was “apprehended at time of entry” for purposes of paragraph

2 than I would be to have the Service dictate whether a class member was

subject to detention under paragraph 17 as “one convicted of a crime involv-

ing moral turpitude,” if it were the Immigration Judge’s or the Board’s con-

clusion that the relevant crime did not involve moral turpitude.

IV.

As a final matter, I note that the Service has argued in other cases involv-

ing the ABC agreement that the phrase “apprehended at time of entry” in

paragraph 2 of the agreement has a broader meaning than “apprehended

while attempting entry.” Under the Service’s apparent interpretation, a class

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member who actually entered the United States could be construed to have

been “apprehended at time of entry” for paragraph 2 purposes. It is not clear

to me whether the argument is that a temporal or a distance test or a combina-

tion of the two would apply such a determination. In any event, I do not find

merit in this position.

The term “entry” is well defined for immigration law purposes. See sec-

tion 101(a)(13) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(13) (1994); Matter of G-, 20 I&N Dec. 764 (BIA 1993); Matter of

Z-, 20 I&N Dec. 707 (BIA 1993); Matter of Patel, 20 I&N Dec. 368 (BIA

1991), and cases cited therein. I would give the terms used in the ABC agree-

ment their commonly accepted meanings unless they were otherwise defined

in the agreement. The relevant language in paragraph 2 was not drafted with

precision. However, if the parties to the stipulation had intended the phrase

“apprehended at time of entry” to have a different meaning than “appre-

hended while attempting entry,” I have little doubt that it would have been

separately defined in the agreement.2 As it was not, I would find that the

question whether a class member was “apprehended at time of entry” under

paragraph 2 should be resolved under traditional “entry” analysis. If a class

member has entered the United States, he or she would not be disqualified

from the benefits of the agreement under paragraph 2. If a class member is

apprehended while attempting entry after the date of preliminary approval of

the agreement, then he or she would be disqualified from benefits under para-

graph 2 and the exclusion proceedings should go forward under the usual

provisions of the Act. See sections 235(b), 236 of the Act, 8 U.S.C.

§§ 1225(b), 1226 (1994).

V.

There is no dispute that the applicant in the instant case was apprehended

while attempting to enter the United States after the date of preliminary

approval of the ABC agreement. Accordingly, I would find that he is not eli-

gible for benefits under the ABC agreement and would affirm the decision of

the Immigration Judge denying the applicant’s motion to administratively

close the exclusion proceedings.

2 If the phrase “apprehended at time of entry” was read in its most literal sense so as to apply

to class members who had actually effected an entry, then it seemingly would not apply to class

members apprehended while attempting to enter the United States because there would be no

“time of entry” in such cases. If this phrase were so construed, only those class members who

were apprehended after having made an entry, but before the undefined “time of entry” period

had elapsed, would come within the scope of the last sentence in paragraph 2. Such an

interpretation would be nonsensical.

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BEFORE THE BOARD

(September 11, 1996)

FOR APPLICANT: Michael S. Gallagher Sr., Esquire, El Paso, Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: David M. Dixon, Chief

Appellate Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; VACCA, HEILMAN, VILLAGELIU,

COLE, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Dissenting

Opinions: HOLMES, Board Member; DUNNE, Vice Chairman

SCHMIDT, Chairman:

In a published decision dated December 7, 1995, we sustained the appli-

cant’s interlocutory appeal from an order of the Immigration Judge denying

the applicant’s motion for administrative closure. Matter of Morales, 21 I&N

Dec. 130 (BIA 1995). We ordered the proceedings remanded with instruc-

tions for administrative closure pending the outcome of adjudication of the

applicant’s asylum application under the terms of the settlement agreement

in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal.

1991) (“ABC settlement agreement”). The Immigration and Naturalization

Service has filed a motion to reconsider. The motion will be denied.

A motion to reconsider “shall state the reasons upon which the motion is

based and shall be supported by such precedent decisions as are pertinent.” 8

C.F.R. § 3.8 (1996). In the instant matter, the Service first argues that the

legal analysis in our decision of December 7, 1995, was flawed. The Service

has restated its position with greater emphasis and clarity, but has offered no

persuasive new arguments and no new case law to supplement the arguments

we have already rejected after careful deliberation.

In particular, the Service persists in its argument that the Board’s interpre-

tation of the ABC settlement agreement will interfere with its parole, deten-

tion, and, hence, general enforcement authority. However, we specifically

addressed and rejected this contention in our prior order, and we are not

inclined to revisit the issue. Matter of Morales, supra, at 136-37. The Service

also reiterates its argument that the Service, and not the Board, has the

authority to determine who within the Service shall decide the issue of eligi-

bility under paragraph 2 of the ABC settlement agreement. However, as we

have already pointed out unanimously in our prior decision, we are bound by

the terms of the ABC settlement agreement itself, and we are under an obliga-

tion to interpret those provisions of the agreement that require us to decide

whether a case can proceed or must be administratively closed. Matter of

Morales, supra, at 138-39, 143-44, 146 (Rosenberg, Board Member, concur-

ring; Holmes, Board Member, concurring in part and dissenting in part).

Consequently, we are not inclined to reconsider our decision in this matter on

the basis of the Service’s restatement of its position.

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Second, the Service argues that since the applicant’s hearing continued

during the pendency of his interlocutory appeal, and since he was ordered

excluded and deported, waived appeal, and was in fact excluded and

deported prior to the issuance of our interlocutory order, the Board’s decision

on the interlocutory matter should be regarded as moot and should be

vacated. The Service has not, however, cited any precedents or other author-

ity in support of this argument.

We observe that on the rare occasions when interlocutory consideration is

granted, this Board asserts jurisdiction because we deem it necessary to

address important jurisdictional questions regarding administration of the

immigration laws, or to correct recurring problems in the handling of cases

before the Immigration Judges. See Matter of Guevara, 20 I&N Dec. 238,

239 (BIA 1990, 1991), and cases cited therein. In adjudicating the applicant’s

case, we asserted jurisdiction for these very reasons. The Service has not

shown or even asserted why these reasons do not obtain, or why they should

not be of concern due to the applicant’s enforced departure predating our

order.

We note that an application for admission is a continuing application and

need not cease upon an applicant’s departure under an erroneous order of

exclusion while an appeal to the Board is pending. See Matter of Keyte, 20

I&N Dec. 158 (BIA 1990) (holding that departure after taking an appeal

from the denial of admission does not constitute withdrawal of the appeal);

Matter of Wu, 14 I&N Dec. 290 (R.C. 1973) (finding no withdrawal of appli-

cation for admission where reentry permit was erroneously denied and appli-

cant sought to test his admissibility as a returning resident); cf. Matter of

Okoh, 20 I&N Dec. 864 (BIA 1994) (limiting Matter of Keyte, supra, to

direct appeals, as distinguished from motions and appeals of motions); Mat-

ter of Ching and Chen, 19 I&N Dec. 203 (BIA 1984) (finding withdrawal of

request for admission where applicants accepted the order of exclusion, filed

no appeal, and entered surreptitiously). While an interlocutory appeal will

indeed ordinarily be considered moot upon the alien’s departure under an

order of exclusion and deportation, it need not be so considered in each and

every circumstance. See, e.g., Matter of Mincheff, 13 I&N Dec. 715, 721 n. 1

(BIA 1970, 1971) (finding that alien’s departure following a final order of

deportation issued by the Board, and his subsequent return and enlargement

on parole, did not moot the admissibility issue upon Service’s motion for

reconsideration); cf. Matter of Okoh, supra. In this case, the applicant’s inter-

locutory appeal had merit, properly asserted rights under the ABC settlement

agreement, was at no time specifically withdrawn, and raised issues that are

of continuing importance for the administration of the immigration laws.

Consequently, we did not and do not now regard our interlocutory order as

moot, but observe that our prior order effectively vacated the prior order of

the Immigration Judge. We will deny the motion to reconsider.

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ORDER: The motion by the Immigration and Naturalization Ser-

vice is denied.

Board Members Gerald S. Hurwitz and Lauri S. Filppu did not participate

in the decision in this case.

DISSENTING OPINION: David B. Holmes, Board Member

I respectfully dissent.

I need not restate my reasons for dissenting in part from the majority’s

December 7, 1995, decision in this case. See Matter of Morales, 21 I&N Dec.

130 (BIA 1995). Wholly aside from that disagreement, however, I would

grant the Immigration and Naturalization Service’s unopposed motion to

reconsider and would vacate as moot that decision of the Board.

Exclusion proceedings against the applicant commenced before the Immi-

gration Judge in January 1995. On January 16, 1995, the Immigration Judge

denied the applicant’s motion to administratively close the proceedings pur-

suant to the settlement agreement set forth in American Baptist Churches v.

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). Through counsel, the appli-

cant filed an interlocutory appeal from that ruling of the Immigration Judge.

It is important to note at this point that the mere filing of an interlocutory

appeal neither divests an Immigration Judge of jurisdiction over a case, nor

results in an automatic stay of further proceedings. Jurisdiction remains with

the Immigration Judge in such circumstances unless the Board asserts juris-

diction over the case. See Matter of Ruiz-Campuzano, 17 I&N Dec. 108

(BIA 1979); Matter of Ku, 15 I&N Dec. 712 (BIA 1976); Matter of Sacco, 15

I&N Dec. 109 (BIA 1974).3

In April 1995, the Immigration Judge properly proceeded with the exclu-

sion proceedings because the Board had not asserted jurisdiction over the

case and no stay of proceedings was in effect. In a decision dated April 13,

1995, the Immigration Judge found the applicant excludable under sections

212(a)(6)(C)(i) and (7)(A)(i)(I) of the Immigration and Nationality Act, 8

U.S.C. §§ 1182(a)(6)(C)(i) and (7)(A)(i)(I) (1994), and denied his applica-

tions for asylum and withholding of deportation.

The applicant, who was represented by counsel throughout these proceed-

ings, had the right to appeal from the Immigration Judge’s April 13, 1995,

decision. See 8 C.F.R. §§ 3.1(b)(1), 3.38, 236.7 (1995). On direct appeal, he

3 The Board has long opined that permitting “piecemeal review of interlocutory orders of an

immigration judge at successive stages of a . . . proceeding before final decision would only

open the door to obfuscation and delay.” Matter of Ruiz-Campuzano, supra, at 109. On

occasion, however, the Board has assumed jurisdiction over interlocutory appeals where it was

deemed necessary to address important jurisdictional questions regarding the administration of

the immigration laws, or to correct recurring problems in the handling of cases. See Matter of

Rahman, 20 I&N Dec. 480 (BIA 1992); Matter of Guevara, 20 I&N Dec. 238 (BIA 1990,

1991), and cases cited therein.

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could have sought Board review of any interlocutory rulings of the Immigra-

tion Judge and could have preserved his challenge to her decision not to

administratively close the proceedings. See Matter of Sacco, supra. The fil-

ing of such an appeal would have stayed execution of the Immigration

Judge’s decision. See 8 C.F.R. § 3.6(a) (1995).

The applicant, however, did not appeal from this decision of the Immigra-

tion Judge. Instead, on April 14, 1995, through counsel, he filed a signed

statement with the Immigration Court indicating that he waived his right to

appeal the Immigration Judge’s decision and that he desired to be deported.

As a result, the April 14, 1995, decision of the Immigration Judge became

final. See 8 C.F.R. §§ 3.39, 236.6 (1995). Pursuant to this final order, the Ser-

vice excluded and deported the applicant by airplane to Honduras on April

28, 1995. This execution of the order of exclusion and deportation brought

the exclusion proceedings to finality. See Matter of Okoh, 20 I&N Dec. 864,

865 (BIA 1994).

The Board should have been advised by the parties that the applicant had

been excluded and deported and that the previously filed interlocutory appeal

was moot. Neither party did so. This does not change the fact, however, that

when the Board sought to assert “jurisdiction” over the applicant’s interlocu-

tory appeal on December 7, 1995, there no longer was any pending case over

which jurisdiction could be asserted. The exclusion proceeding had been

brought to finality by the execution of the applicant’s order of exclusion and

deportation. Under these facts, I would reconsider the Board’s prior decision

in this case and vacate that decision as moot.4 If the issues addressed in that

decision represent a recurring problem, another case over which the Board in

fact has jurisdiction should exist or will arise in which these matters can be

addressed.

DISSENTING OPINION: Mary Maguire Dunne, Vice Chairman

I concur in the foregoing dissent insofar as it would reconsider the Board’s

prior decision in this case and vacate that decision as moot.

4 The case before us is clearly distinguishable from Matter of Mincheff, 13 I&N Dec. 715,

721 (BIA 1970, 1971). In Matter of Mincheff, which did not involve an interlocutory appeal,

the Service had moved the Board to reconsider its decision dismissing a Service appeal from an

order of an Immigration Judge admitting an applicant to the United States. In Mincheff, the

Board had jurisdiction over the exclusion case at the time of its initial decision; the Board’s

initial decision had been stayed pending consideration of the Service’s motion; and, when the

applicant thereafter briefly departed the United States and was paroled on return, he had not

been under an order of exclusion, final or otherwise.

149