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Interim Decision #3630

Matter of F-P-R-, Respondent

Decided November 5, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

For purposes of determining if an alien’s application for asylum was timely filed within

1 year of arrival in the United States pursuant to section 208(a)(2)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2006), the term “last arrival” in 8 C.F.R.

§ 1208.4(a)(2)(ii) (2008) refers to the alien’s most recent arrival in the United States from

a trip abroad.

FOR RESPONDENT: Judith A. Marty, Esquire, Fullerton, California

BEFORE: Board Panel: FILPPU, PAULEY, and HESS, Board Members.

PAULEY, Board Member:

In a decision dated February 6, 2007, an Immigration Judge granted the

respondent’s application for withholding of removal under section 241(b)(3)

of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (2006), but

pretermitted his application for asylum as time barred under section

208(a)(2)(B) of the Act, 8 U.S.C. § 1158(a)(2)(B) (2006), and 8 C.F.R.

§ 1208.4(a)(2)(ii) (2008) because of his failure to file an Application for

Asylum and for Withholding of Removal (Form I-589) within 1 year of his

“last arrival” in the United States. The respondent has appealed from that

decision. The appeal will be sustained.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who initially arrived in the

United States in 1983 without inspection. Later that year he returned to

Mexico, where he stayed until returning without inspection to the

United States in 1989. The respondent remained in the United States without

lawful status until he returned to Mexico on June 17, 2005, to attend the

funeral of his stepfather. Most recently, he came to the United States on

July 20, 2005, when he was apprehended near the southern border and was

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Interim Decision #3630

placed in removal proceedings.1 The respondent subsequently conceded that

he is removable as charged, and he filed an application for asylum and related

relief with the Immigration Judge on February 8, 2006.

The Immigration Judge received evidence, mainly consisting of the

respondent’s testimony, at the stipulated merits hearings held on July 6, and

July 25, 2006, in accordance with Grava v. INS, 205 F.3d 1177, 1180-81 (9th

Cir. 2000). After giving the parties a final opportunity to submit briefs on the

issues of the respondent’s eligibility for asylum and withholding of removal,

the Immigration Judge issued an oral decision granting the respondent’s

application for withholding of removal, but finding him ineligible for asylum

as a result of his failure to file the Form I-589 within 1 year of his “last arrival”

in the United States, as required by 8 C.F.R. § 1208.4(a)(2)(ii).

With respect to the 1-year filing deadline, the Immigration Judge stated that

“applicants should not be able to reset the asylum clock by taking a short

excursion abroad,” and that “such an interpretation would undermine the

[1-year] deadline’s clear purpose of focusing the asylum process on those who

have recently fled persecution in their home countries.” Thus, the Immigration

Judge calculated the respondent’s 1-year period of eligibility to apply for

asylum from his second arrival in the United States in 1989 instead of his most

recent coming to this country on July 20, 2005. In the absence of any

controlling decisions on the issue from either the United States Court of

Appeals for the Ninth Circuit or the Board, the Immigration Judge

substantially adopted the rationale set forth by the Second Circuit in

Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006). On March 5, 2006,

the respondent filed a timely appeal challenging the Immigration Judge’s

adverse asylum eligibility determination. The Department of Homeland

Security has not filed a brief on appeal.

1

We note that the respondent’s Form I-589 reflects that he arrived in the United States twice

in July 2005, the first time on July 15 and the second on July 20, 2005. However, because

we do not conduct fact-finding on appeal and we do not deem the Immigration Judge’s

findings of fact to be clearly erroneous, we have based our decision on the facts as

determined by the Immigration Judge. See 8 C.F.R. § 1003.1(d)(3)(i), (iv) (2008); see also

Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (stating that under new regulations the Board

has limited fact-finding ability on appeal, which heightens the need for Immigration Judges

to include in their decisions clear and complete findings of fact that are supported by the

record and are in compliance with controlling law); Matter of Fedorenko, 19 I&N Dec. 57,

74 (BIA 1984) (“[A]ll evidence which is pertinent to determinations made during deportation

proceedings . . . must be adduced in the hearing before the immigration judge. The Board

is an appellate body whose function is to review, not to create, a record.” (footnote omitted)).

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II. ISSUE

On appeal we must determine the meaning of the phrase “last arrival” in the

8 C.F.R. § 1208.4(a)(2)(ii), which governs an alien’s statutory burden of

proving by clear and convincing evidence that he filed an application for

asylum within 1 year after the date of his arrival in the United States under

section 208(a)(2)(B) of the Act. Specifically, the regulation provides in

pertinent part that “[t]he 1-year period shall be calculated from the date of the

alien’s last arrival in the United States or April 1, 1997, whichever is later.”

III. ANALYSIS

When construing the Attorney General’s regulations, we abide by the

canons of construction that generally apply to the interpretation of statutory

texts. See Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001) (citing Matter

of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999)). We recognized in Matter of

Artigas that “there is ‘no more persuasive evidence of the purpose of a

[regulation] than the words by which the [Attorney General] undertook to give

expression to [her] wishes.’” Id. (quoting Perry v. Commerce Loan Co., 383

U.S. 392, 400 (1966)). Furthermore, the Board and the Immigration Judges,

which are the adjudicative bodies within the Executive Office for Immigration

Review, “‘must give effect to the unambiguously expressed intent’ of the

Attorney General.” Id. (quoting Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 843 (1984)); see also Matter of W-F-,

21 I&N Dec. 503, 506 (BIA 1996).

Accordingly, in ascertaining executive intent, we look to the ordinary

meaning of the words used in the regulation.

Cf. Matter of

Rodriguez-Rodriguez, 22 I&N Dec. 991, 993 (BIA 1999) (citing INS

v. Phinpathya, 464 U.S. 183, 189 (1984)). “Arrival” is defined as the “act of

arriving,” and “arrive” is defined as “to come to a certain point in the course

of travel; reach one’s destination” and “to come to a place after traveling.”

The Random House Dictionary of the English Language 83 (unabridged ed.

1973). “Last” is defined as “occurring or coming after all others, as in time,

order, or place” and “most recent, next before the present, latest.” Id. at 809.

These definitions make clear that the words “last arrival” refer to an alien’s

most recent coming or crossing into the United States after having traveled

from somewhere outside of the country. Thus, we conclude that for purposes

of calculating the period of time between the alien’s arrival in the

United States and the date on which an application for asylum was filed

pursuant to section 208(a)(2)(B) of the Act, the term “last arrival” referred to

in the regulation should, subject to a possible narrow exception discussed

subsequently, be given its natural and literal meaning, i.e., the alien’s most

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recent arrival in the United States from a trip abroad. See Matter of Pierre,

14 I&N Dec. 467, 468 (BIA 1973) (setting forth a four-pronged definition of

the term “entry” under former section 101(a)(13) of the Act, 8 U.S.C.

§ 1101(a)(13) (1970)). This construction of the phrase “last arrival” is

consistent with our previous treatment of the concept of “arrival” in the

context of the 1-year filing deadline for asylum applications in Matter of Y-C-,

23 I&N Dec. 286 (BIA 2002), where we recognized that an unaccompanied

minor who entered the United States without inspection had effected an

“arrival” for purposes of calculating the 1-year filing period.

Moreover, the regulation states that the 1-year filing period “shall be

calculated from the date of the alien’s last arrival.” 8 C.F.R. § 1208.4(a)(2)(ii)

(emphasis added). Accordingly, the identification and use of the date of the

alien’s last arrival in the United States for purposes of calculating the 1-year

filing period is mandatory, not discretionary or conditional. See Alabama

v. Bozeman, 533 U.S. 146, 153 (2001) (“‘The word “shall” is ordinarily “the

language of command.”’” (quoting Anderson v. Yungkau, 329 U.S. 482, 485

(1947) (quoting Escoe v. Zerbst, 295 U.S. 490, 493 (1935))); accord Lexecon

Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (citing

Anderson v. Yungkau, supra). Here, the Immigration Judge erred as a

matter of law when he calculated the 1-year filing period on the basis of the

respondent’s prior arrival in the United States in 1989 instead of the

respondent’s last arrival on July 20, 2005.

In rendering his decision, the Immigration Judge relied on Joaquin-Porras

v. Gonzales, supra, the only published decision to date from the courts of

appeals construing the term “last arrival.” In that case the Second Circuit held

that “the term ‘last arrival in the United States’ should not be read to include

an alien’s return to the United States after a brief trip abroad pursuant to a

parole explicitly permitted by United States immigration authorities.” Id. at

179. While noting that this interpretation “seemed to disregard the words of

the applicable regulation,” the court ultimately concluded that this selective

manner of interpreting “last arrival” “best accords with the purpose of the

statute as a whole.” Id. The Second Circuit based its conclusion principally

on a survey of the legislative history behind the rewriting of section 208 of the

Act by section 604(a) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, 3009-690 (“IIRIRA”). Id. at 179-80.

We disagree with Joaquin-Porras v. Gonzales in that we discern no basis

for construing the regulation as not taking into account entries that occurred

after brief absences from the United States. Cf. Matter of Collado, 21 I&N

Dec. 1061 (BIA 1998) (noting the demise of the so-called “Fleuti doctrine” as

a result of the enactment of the IIRIRA). Whatever might be the policy

advantages of the construction adopted by the Second Circuit, and whether or

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not the legislative history invoked by the Second Circuit represents an accurate

recapitulation of Congress’s intent when it enacted the 1-year filing period in

1996, that legislative history provides no direct insight into the Attorney

General’s intent in promulgating the clear regulatory text through which

he implemented his delegated authority to administer, interpret, and enforce

the 1-year filing period. Instead, the relevant entries in the Federal Register

constitute the regulatory history underlying the final promulgation of 8 C.F.R.

§ 1208.4(a)(2)(ii). In this regard, we observe that the term “last arrival”

initially appeared in the proposed rule published in the Federal Register on

January 3, 1997, and was subsequently retained without comment or

amendment in the subsequent interim rule published on March 6, 1997, and in

the final rule published on December 6, 2000. See Asylum Procedures,

65 Fed. Reg. 76,121, 72,123 (Dec. 6, 2000); Inspection and Expedited

Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal

Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,316 (Mar. 6, 1997)

and 62 Fed. Reg. 444, 463 (Jan. 3, 1997) (Supplementary Information). Thus,

the regulatory history does not amplify the meaning of the phrase “last arrival”

conveyed through the ordinary meaning of the words in the regulation.

We understand the concern that appears to underlie the Second Circuit’s

decision in Joaquin-Porras v. Gonzales, supra. Indeed, a literal construction

of the term “last arrival” may have the potential to permit certain aliens to

defeat the purpose of the 1-year asylum filing deadline by making a brief trip

abroad for the sole or principal purpose of evading the time bar and

resuscitating the ability to seek asylum. However, it is not disputed that the

respondent’s trip, although brief, was for the legitimate purpose of attending

a relative’s funeral. Thus, we need not here examine whether the regulation

should be read to embody an implicit exception in a case where it is found that

an alien’s trip abroad was solely or principally intended to overcome the

1-year time bar.2

In light of the above, we will remand the record of proceedings to the

Immigration Judge. Inasmuch as the Immigration Judge determined that the

respondent has met his burden of proof for withholding of removal under

section 241(b)(3) of the Act, it necessarily follows that he has met his burden

of proof for asylum under section 208(a). Compare INS v. Cardoza-Fonseca,

480 U.S. 421 (1987), with INS v. Stevic, 467 U.S. 407 (1984). Thus, the

purpose of our remand is limited to determining whether the respondent merits

asylum in the exercise of discretion, as the Immigration Judge did not make

2

In Matter of Collado, supra, we observed that the Supreme Court’s decision in Rosenberg

v. Fleuti, 374 U.S. 449 (1963), was based on the fact that the definition of “entry” then in

force included the term “intended” such as to support an exception for departures whose

purpose was brief, casual, and innocent.

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any findings in this aspect. See generally Matter of Pula, 19 I&N Dec. 467,

473-75 (BIA 1987) (setting forth factors relevant to a discretionary analysis of

an asylum claim). Accordingly, the respondent’s appeal will be sustained and

the record will be remanded.

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

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