GRINBERG

Interim Decision #3235

MATTER OF GRINBERG

In Deportation Proceedings

A 71571961

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Decided by Board November 22, 1994

Notwithstanding a clerical error in the redundant designation of "section 245(1)" of

the Immigration and Nationality Act, to be codified at 8 U.S.C. § 1255(i), immigration

judges have jurisdiction to entertain applications for relief based on both the section

245(i) that was created through section 506(b) of the Departments of Commerce,

Justice, and State Appropriations Act for 1995, Pub. L. No. 103-317, 108 Stat. 1724,

1765, and the separate section 245(i) that was created through section 130003 of the

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103 322, 108

-

Stat. 1796, 2024.

CHARGE:

Orden Act of 1952—Sec. 241(a)(1)(3) [8 U.S.C. § 1251(a)(1)(13)1—Nonimrnipant—re-

mained longer than permitted

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Jolanta Kasztelewicz, Esquire Margaret Reichenberg

David M. Sturman, Esquire General Attorney

The Atrium

16530 Ventura Boulevard, Suite 306

Encino, California 91436

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,

Alternate Board Member

In a decision dated October 4, 1994, an immigration judge found

the respondent deportable as a nonimmigrant who remained longer

than permitted, granted the respondent voluntary departure, and

denied his Motion to Request Additional Relief in the form of an

adjustment of status based on section 245(i) of the Immigration and

Nationality Act (to be codified at 8 U.S.C. § 1255(i)). The immigra-

tion judge found that he lacked jurisdiction to consider such an

application for relief, because the version of section 245(i) upon which

the respondent sought to rely had been superseded by subsequent

legislation- On October 6, 1994, the immigration judge certified his

decision to this Board for review pursuant to regulations at 8 C.F.R.

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Interim Decision #3235

§ 3.1(c) (1994). Upon consideration, the decision of the immigration

judge will be vacated, and the record will be remanded for further

proceedings.

The sole issue presented for our resolution upon certification is

whether an immigration judge has jurisdiction over applications for

relief based upon "section 245(i)" of the Act, as enacted on August 16,

1994, through section 506(b) of the Departments of Commerce,

Justice, and State Appropriations Act for 1995, Pub. L. 14b. 103 317, -

108 Stat. 1724, 1765 ("Appropriations Act"), in light of the unusual

fact that a new "section 245(i)" was enacted less than 3 weeks later

through section 130003 of the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2024

("Crime Control Act").' We conclude that both sections 245(i) are

effective, that they create separate adjustment eligibility provisions,

and that the immigration judge has jurisdiction over applications

based on these subsections.

We begin by observing that the object of statutory construction is to

determine congressional intent with respect to the legislation enacted.

The paramount index of congressional intent is the plain meaning of

the words used in the statute taken as a whole. INS v. Cardoza-

Fonseca, 480 US_ 421, 431 (1987); Phinpathya 17- INS, 464 U.S. 183,

189 (1984). Whenever possible, statutes should be read as consistent

with one another. Kremer v. Chemical Constr. Corp., 456 U.S. 461,

468 (1982). Accordingly, we must not lightly presume that existing law

is repealed by subsequent legislation in the absence of clear legislative

language expressing an intent to repeal. lA N. Singer, Sutherland

Statutory Construction §§ 23.09, 23.10 (4th ed. 1985).

An examination of the words Congress used in the Crime Control

Act shows no evidence of any intent to repeal the original section

245(i), which Congress had enacted less than 3 weeks earlier in the

Appropriations Act, and which had not even gone into effect. Since

there was no expressed repeal of the provision in question, a

conclusion that the original section 245(i) was repealed could only be

reached upon a finding of repeal by implication. In this case, the

immigration judge made such a finding, determined that the later

enacted statute repealed the prior statute, and concluded that he had

no jurisdiction to entertain the respondent's application for adjust-

ment of status.

We disagree with the immigration judge's conclusion. As the

Supreme Court has stated repeatedly over the course of more than a

'The legislative vehicles for these Acts, H.R. 4603 and H.R. 3355, 103d Congress, 2d

Sess. (1994), will be referred to as the "Appropriations Bill" and the "Crime Bill,"

respectively.

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Interim Decision #3235

century and a half, it is a cardinal rule of statutory construction that

repeals by implication are not favored. County of Yakirna v. Confeder-

ated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251

(1992); United States v. Fausto, 484 U.S. 439 (1988); Georgia v.

Pennsylvanicz R.R. Co., 324 U.S. 439, 456-57 (1945); Posadas v.

National City Bank, 296 U.S. 497 (1936); Wood v. United States, 41

U.S. 342 (18 42). Indeed, repeal by implication will not be found unless

intent to repeal is "clear and manifest." Rodriguez v. United States,

480 U.S. 522, 524 (1987) (citations omitted). Thus, "'[i]n the absence

of some affirmative showing of an intention to repeal, the only

permissible justification for a repeal by implication is when the earlier

and later statutes are irreconcilable."' St. Martin Evangelical Lutheran

Church v. South Dakota, 451 U.S. 772, 787 (1981) (quoting Morton v.

Mancari, 411 U.S. 535, 550 (1974); see also United States v. Fausto,

supra (requhing "clear repugnancy"); Georgia v. Pennsylvania R.R.

Co., supra.

Applying these principles to the instant case, we observe that the

plain substantive language of the two enactments in question is not

irreconcilable, nor even slightly ambiguous as to the intended effect.

Rather, the relevant language evinces> a clear congressional intent to

add two separate, new provisions to existing law. Specifically, section

506(b) of the Appropriations Act created an exception to the usual

adjustment of status provisions, so that certain aliens who are out of

legal status, such as the respondent here, may nevertheless apply for

adjustment under section 245(a) of the Act. Section 130003 of the

Crime Control Act, on the other hand, offers the new possibility of

adjustment of status to a separate, newly created category of nonimmi-

grant aliens who have fulfilled a promise to supply the United States

with certain critical information. The substance of neither of these

provisions conflicts in any way with the substance of the other.

Further, as the Immigration and Naturalization Service correctly

points out in its well written brief in this matter, the legislative history

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of the Crime Bill does not indicate an intent to repeal any existing law

under section 245. The Crime Control Act and the Appropriations Act

both indicates that the relevant amendment in each case creates a

"new" subsection under section 245 and that no existing portion of

that section is to be repealed. Each act states: "Section 245 of the

Immigration and Nationality Act, as amended (8 U.S.C. 1255), is

amended by .adding at the end thereof the following new subsection."

(Emphasis added).

We note that the bills in question made their way through the

legislative process more or less simultaneously. It could not have been

known with certainty when the relevant provisions were introduced

that either or both of the bills would be enacted as written—much less

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which would be enacted first. Thus, it is no surprise that each bill

designated its "new" subsection identically, as subsection "(i)," to

follow the existing subsections (a) through (h). All the relevant

evidence indicates that in the period of less than 3 weeks between the

passage of the Appropriations Bill and the Crime Bill, the duplication

of subsection "(i)" in the Crime Bill was simply overlooked.

In view of the foregoing, we conclude that the redundant subsection

designation at section 245 of the Act is properly understood for what it

clearly is, namely, a clerical oversight. Since there exists no inconsis-

tency in the substantive language of the legislation in question, and

since there was no express repeal, our duty is to give force and effect to

both acts of Congress, and not to a clerical error. United States v.

Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83 (1932). 2

Accordingly, we conclude that the immigration judge in this case

had jurisdiction to entertain the respondent's application for adjust-

ment of status under section 245(i) of the Act, and denial of the

respondent's prehearing "notion to apply for relief under this subsec-

tion was unnecessary. Consequently, the decision of the immigration

judge will be vacated and the record will be remanded for further

proceedings.

ORDER: The decision of the immigration judge is vacated.

FURTHER ORDER: The record is remanded to the immi-

gration judge for further proceedings consistent with the foregoing

opinion.

2 The Service argues erroneously in its brief that the Board owes substantial deference

to the Service's own administrative interpretation of the statutory law. See 59 Fed. Reg.

51,091, 51,094 (1994). However, we exercise our judgment independently of the Service,

and our decisions are binding on all officers and employees of the Service in the

administration of tho Aot. 8 C.F.R.§§ 2.1, 3.0, 3.1(e) (1994) (setting forth the authority

of the Board); see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)

(discussing the duty of the Board to exercise its own independent judgment where the

Attorney General has, by regulation, delegated this responsibility to the Board).

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