Escolar Documentos
Profissional Documentos
Cultura Documentos
Department of Justice
A 079-069-141
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DonnL C
aftA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Pauley, Roger
Greer, Anne J.
Userteam: Docket
Date:
APPEAL
ON BEHALF OF RESPONDENT: Tyler Dorsett, Esquire
ON BEHALF OF DHS: Brandon Josephsen
Assistant Chief Counsel
CHARGE:
Notice: Sec.
212(a)(6)(A)(i), l&N Act [8 U.S.C. 1 l82(a)(6)(A)(i)] Present without being admitted or paroled
The Department of Homeland Security (OHS) appeals from the Immigration Judge's
February 11, 2011, decision granting the respondent's application for adjustment of status
pursuant to section 245(a) of the Immigration and Nationality Act (Act), 8 U.S.C. I255(a),
based on his marriage to a United States citizen. The DHS appeal will be dismissed, but the
record will be remanded to the Immigration Judge for further proceedings consistent with this
opinion and for the entry of a new decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. I003.l(d)(3)(ii).
The following undisputed facts and procedural history are relevant in this matter. 1 On or
about June 23, 2002, the respondent, a native and citizen of Costa Rica, entered the United States
through Canada without first being inspected and admitted or paroled, and as a result he was
issued a Notice to Appear (NTA) on the same date, instituting these proceedings (I.J. at 1;
1
Some of the fact recited in this order were not formally found by the Immigration Judge but
may be administratively noticed based on the submission of records maintained by the DHS, the
United States Department of State, and the state of Florida. See 8 C.F.R. I003.1(d)(3)(iv)
(limiting our appellate fact-finding authority to "taking administrative notice of commonly
known facts such as the contents of official documents"); Matter of S-H-, supra, at 465-66
(same).
Cite as: Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
IN REMOVAL PROCEEDINGS
On May 16, 2009, the respondent married a United States citizen, and she subsequently filed
an Alien Relative Petition (Form 1-130) on his behalf that was approved on September 17, 2009
(Resp. Motion to Recalendar at l, Tab B). On May 17, 2010, the respondent filed an unopposed
motion to recalendar and transfer venue, requesting an opportunity to pursue adjustment of status
under section 245(a) of the Act before the Immigration Court (Resp. Motion to Recalendar;
Resp. Motion to Transfer Venue; DRS Nonopposition). His motion was granted on May 27,
2010 (May 27, 2010, I.J. Order).
On appeal, the DRS maintains that the Immigration Judge erred as a matter of law in finding
the respondent eligible for adjustment of status pursuant to section 245(a) of the Act in light of
the fact that he was not granted parole when he first arrived in the United States, but had
received, while within the United States, a parole grant that had since terminated (DHS Brief at
2, 4-5). The respondent, however, argues that the Immigration Judge properly found him eligible
for adjustment of status under section 245(a) of the Act, as he was paroled pursuant to section
212(d)(5)(A) of the Act, notwithstanding the fact that the parole was granted after his initial
arrival in 2002 and had since terminated (Resp. Brief at 3-4). The DHS further asserts that,
assuming the respondent otherwise would be eligible to pursue adjustment of status under
section 245(a) of the Act, he remains inadmissible pursuant to section 212(a)(6)(A)(i) of the Act
as charged in the NTA, in that he initially arrived in the United States at a location other than a
designated port of entry (DRS Brief at 5-6). Although the respondent acknowledges that he
entered in 2002 without inspection, he argues that he is not inadmissible under section
212(a)(6)(A)(i) of the Act because he was subsequently paroled under section 212(d)(5)(A) of
the Act, thus invalidating the original charge brought under section 212(a)(6)(A)(i) of the Act
(Resp. Brief at 4-11).
Starting with the parties' arguments regarding the respondent's potential inadmissibility
under section 212(a)(6)(A)(i) of the Act as it relates to his adjustment eligibility under section
245(a) of the Act, we note that these arguments also relate to the sole charge contained in the
NTA (DHS Brief at 5-6; Resp. Brief at 4-11 ). However, the Immigration Judge did not enter an
explicit removability finding in his oral decision (I.J. at 3; DRS Brief at 3). Moreover, while we
2
Several orders were issued by Immigration Judges in this case. Unless otherwise specified,
references to "1.J." relate to the Immigration Judge's February 11, 2011, decision.
Cite as: Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
Tr. at 3-4, 50; Exh. 1; Resp. Motion to Terminate at Tab J).2 On July 3, 2002, the respondent,
without the assistance of counsel, admitted the factual allegations contained in the NTA, at
which time an Immigration Judge found him removable as charged (Tr. at 3-5, 53-54; Exh. 1).
Thereafter, the respondent was paroled into the United States in the public interest pursuant to
section 212(d)(5)(A) of the Act, 8 U.S.C. l 182(d)(5)(A), and the parole was extended a
number of times before ultimately being terminated in 2008 (I.J. at 2; Tr. at 15-16, 20, 30, 53-54;
Resp. Motion to Recalendar at Tab D; Resp. Motion to Terminate at Tab I; Resp. December 13,
2010, Documentary Submission at Tab I). On July 2, 2003, based on the parole (granted for the
purpose of allowing the respondent to testify in a criminal trial against an accused alien
smuggler), the DRS requested administrative closure, and that request was granted (July 2, 2003,
I.J. Order; Tr. at 15-17).
Inadmissibility under section 2I2(a)(6)(A)(i) of the Act may be triggered in one of two ways.
First, an alien is inadmissible if he is present in the United States without first being inspected
and either admitted or paroled. See id. Second, an alien is also inadmissible if he arrives in the
United States at any time or place not designated by the Attorney General. See id. The
regulations at 8 C.F.R. 235.l(d)(2) and 1235.l(d)(2) explain that an alien applies at a time and
place designated by the Attorney General if he presents himself at an identified port-of-entry
when the port is open or seeks entry "as otherwise permitted in this section." See also
United States v. Dominguez, 661 F.3d 1051, 1077-78, n. 10-11 (11th Cir. 2011) (noting generally
that an alien falls within section 212(a)(6)(A)(i) of the Act if he arrives in the United States at a
place other than an open, designated port-of-entry).
With respect to the portion of section 212(a)(6)(A)(i) of the Act that provides that an alien is
inadmissible if he is present in the United States without first being inspected and admitted or
paroled, we note that United States Citizenship and Immigration Services (USCIS) has analyzed
the impact of this ground of inadmissibility as it relates to an individual similarly situated to the
respondent, i.e. one who first entered without inspection but then is subsequently paroled under
section 212(d)(5)(A) of the Act. See Memorandum from Lori Scialabba, Associate Director of
Refugee, Asylum, & International Operations Directorate, USCIS, HQ 70/21.1 AD07-18,
Section 212(a)(6) of the Immigration and Nationality Act, Rlegal Entrants and Immigration
Violators, 2009 WL 888664 at *5 (March 3, 2009) (hereinafter "Scialabba Memorandum");
see also USCIS Policy Memorandum, PM-602-0091, Parole of Spouses, Children and Parents
of Active Duty Members of the Armed Forces, the Selected Reserve of the Ready Reserve, and
Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the
Effect of Parole on Inadmissibility under Immigration and Nationality Act
Cite as: Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
acknowledge that the then-pro se respondent conceded the factual allegations contained in the
NTA, we will not bind him to his pleadings in these circumstances (I.J. at 2; Tr. at 3-5, 15-16,
20, 30, 53; Exh. 1). See Matter of Roman, 19 I&N Dec. 855, 856 (BIA 1988); Matter of
Velasquez, 19 l&N Dec. 377, 382 (BIA 1986); see also Gonzalez v. United States Attorney
General, 368 F. App'x 963, 965 (11th Cir. 2010) (applying the standard outlined in Matter of
Velasquez, supra, within the jurisdiction of the United States Court of Appeals for the Eleventh
Circuit, the jurisdiction in which this case arises). Specifically, because (1) the respondent
entered his pleadings as a pro se alien before he was paroled pursuant to section 212(d)(5)(A) of
the Act and (2) his parole appears to bear on the validity of the factual allegations contained in
the NTA, the sole charge of inadmissibility remains at issue (Tr. at 3-5, 20, 30, 53; Exh. 1).
Often, under these circumstances, we would remand the record for the Immigration Judge to
engage in relevant fact-finding and to make legal conclusions in the first instance. However,
based on the specific facts and circumstances in this case, we conclude as a matter of law (as
applied to the specific arguments made by the parties) that the charge brought under section
212(a)(6)(A)(i) of the Act, although valid when lodged, is no longer legally tenable, and that the
respondent's initial entry without admission or parole no longer bars him from adjustment of
status, for the reasons outlined below.
As a result, here, we conclude that the respondent's parole under section 212(d)(5)(A) of the
Act served to invalidate the portion of the charge brought under section 212(a)(6)(A)(i) of the
Act as it relates to being present without admission or parole. In that regard, we note that the
OHS has not meaningfully argued on appeal, and apparently did not argue below, that the
eventual termination of the respondent's parole caused him again to become an alien who is
"present in the United States without being . . . paroled," for purposes of inadmissibility under
the first prong of section 212(a)(6)(A)(i) of the Act. Rather, the DHS's argument of
inadmissibility has focused on the second prong.
Turning to that second prong, making inadmissible one who arrives at any time or place other
than at a designated port-of-entry, USCIS has opined that an individual similarly situated to the
respondent would not be inadmissible under this provision either. See USCIS Policy
Memorandum, supra, at *4; USCIS Field Adjudicator's Manual, supra, at Chapter 40.6.2(a)(l ).
Specifically, USCIS has reasoned that "since [the]... alien arrived in the United States only in the
past, the second inadmissibility ground in section 212(a)(6)(A)(i) [of the Act] is already
inapplicable (even without the parole), because the alien is not one who 'arrives' (present tense)
at an undesignated time or place. " See also USCIS Field Adjudicator's Manual, supra, at
Chapter 40.6.2(a)(l ). Noting that this prong has a temporal limit based on the express language
used by Congress, USCIS has reasoned that "It is not a question of parole curing or erasing the
3
Although not binding on the Board, USCIS memoranda provide useful, practical guidance to
the extent that they are not contradicted by sections 212 and 245 of the Act or any related
regulations. See Matter of Castillo-Padilla, 25 l&N Dec. 257, 263 (BIA 2010). Although we
have relied on both the Scialabba and USCIS Policy Memoranda, we note that the Scialabba
Memorandum has been superseded, in part, by the USCIS Policy Memorandum, and we rely on
the Scialabba Memorandum only for those portions that have not been superseded.
4
Cite as: Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
In this scenario, USCIS has opined that such parole invalidates the ground of inadmissibility
at section 212(a)(6)(A)(i) of the Act insofar as it relates to presence without inspection and
admission or parole. See, e.g. , USCIS Policy Memorandum, supra, at *4 (explaining that an
alien who enters without inspection and then is subsequently paroled is no longer inadmissible
under this first prong of section 212(a)(6)(A)(i) of the Act); Scialabba Memorandum,
supra, at *8 (providing that a subsequent parole under section 212(d)(5)(A) of the Act "purges
the [alien's] inadmissibility [under this first prong of section 212(a)(6)(A)(i) of the Act].");
see also USCIS Field Adjudicator's Manual at Chapter 40.6.2(a)(l) (reasoning that "[a]n alien
who is paroled under ...section 212(d)(5)(A) [of the Act] will no longer be inadmissible under the
first ground in section 212(a)(6)(A)(i) .. .because the person has been paroled"). This is so
regardless of the reason underlying the DHS's decision to grant such parole.
See Scialabba Memorandum, supra, at *6 (clarifying the foregoing and explaining that this is
because "[p]arole is the discretionary decision, under section 212(d)(5)(A) of the Act, to permit
an inadmissible alien to leave the inspection facility free of official custody, so that, although the
alien is not admitted, the alien is permitted to be in the United States.").
second inadmissibility ground. Rather, the alien who arrived in the past is already outside the
ambit of the second ground; past arrivals are the subject of the first ground."
See USCIS Policy Memorandum, supra, at *4. USCIS has reasoned that because the first
portion of the ground of inadmissibility at section 212(a)(6)(A)(i) of the Act becomes
inapplicable by virtue of an alien's parole and because the second portion is inapplicable in light
of the temporal limitation, an individual, like the respondent here, who first enters without
inspection and then is subsequently paroled under section 212(d)(5)(A) of the Act is no longer
inadmissible under any portion of section 212(a)(6)(A)(i) of the Act upon being paroled.
For the same reasons that we conclude that the respondent is not inadmissible as charged
under section 212(a)(6)(A)(i) of the Act, we likewise conclude that he is not inadmissible on this
basis for purposes of otherwise evaluating his statutory eligibility for adjustment of status under
section 245(a) of the Act. See section 245(a)(2) of the Act. Accordingly, we agree with the
Immigration Judge to the extent that he so ruled (I.J. at 3-4).
However, because we have concluded that the respondent's parole under section
212(d)(5)(A) of the Act defeated the sole charge of inadmissibility contained in the NTA, we
note that-without a supporting charge-the current basis for these proceedings and the
Immigration Judge's jurisdiction over the respondent's adjustment application is eliminated. In
light of the unique circumstances in these proceedings, we conclude that remand of the record is
appropriate to allow the OHS to lodge any substituted charges the agency may wish to pursue.4
Accordingly, the following orders will be entered.
ORDER: The DHS's appeal is dismissed.
Cf Scheerer v. U.S. Att'y Gen., 445 F.3d 1311 (11th Cir. 2006) (determining that paroled alien
who had been found inadmissible under section 212(a)(7)(A)(i)(I) of the Act was eligible to
apply for adjustment of status), subsequent appeal, 513 F.3d 1244 (11th Cir. 2008) (upholding
subsequent regulation allocating jurisdiction as between the Immigration Judge and USCIS).
6
Cite as: Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
A079 069 1 41
FURTHER ORDER: The record is remanded to the Immigration Judge to allow the OHS to
lodge any substituted charges it may wish to pursue and for the Immigration Judge to conduct
further proceedings consistent with this opinion, including the entry of a new decision.
7
Cite as: Jonathon Mora-Espinoza, A079 069 141 (BIA June 14, 2016)
. ..'-
U . S . DEPl11.TMENT OF JUST I CE
EXECUT IVE O FFICE FOR IMM IGRAT I ON REVIEW
IMM IGRAT I ON COURT
Miami , Flori da
I n the Matter o f
JONATHON MORA-E S P I NOZA ,
Re spondent
CHARGE :
APPL I CAT I ON :
ON BEHALF OF THE RES PON DENT :
On that
not i ce the re spondent was des ignated as having been pre sent in
the United States without a dmi s s i on or parole .
I t a l leg e s that
February 1 1 , 2 0 1 1
Fi l e A 0 7 9 0 6 9 1 4 1
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i n spect i on by an Immigration O f f i ce r .
The respondent gave t e s t imony and indica ted that he did
and was confronted by an Immi grat ion O f ficer .
There h a s been
I t was
I t wa s p repa red by
the fact that that memo rea l l y re l ated to the Cuban Adj u s tment
Act or Cuban/Hai t i an ent rance s t atus .
S t i l l , according t o ca se
Februa ry 1 1 , 2 0 1 1
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And a s
February 1 1 , 2 0 1 1
jd
h e i s appa rent l y come acro s s we l l a s fa r a s that i s conce rned .
The respondent has had a medical examinat ion pre s ented wh i ch was
As s tated be fore , his f inge rprint s we re c l e a r .
A 07 9 0 6 9 14 1
February 1 1 , 2 0 1 1
s at i s fact ory .
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