Dorsett, Tyler., Esq Immigration Group, LLC 3030 Coral Way Miami, FL 33145

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Q[fice of the Clerk

5/07 Leesburg Pike, Suite 2000 Falls Church. Virginia 2204/

OHS/ICE Office of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

Name:

Date of this notice: 6/14/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Wendtland, Linda S. Pauley, Roger Greer, Anne J.

Sincerely,

DonnL C aftA)

Donna Carr Chief Clerk

Userteam: Docket

U .�. D"partm.ent of Justice

Executive Office for Immigration Review Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: -Miami, FL

In re:

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Tyler Dorsett, Esquire

ON BEHALF OF DHS: Brandon Josephsen Assistant Chief Counsel

CHARGE:

JUN 1 't 2016

Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. § 1 l 82(a)(6)(A)(i)] -Present without being admitted or paroled

APPLICATION: Adjustment of status

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).

·

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 NT A, 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).

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 NT A (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.

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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.

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

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Section 212(a)(6)(A)(i), 2013 WL 6623905, at **2-4 (November 15, 2013) (hereinafter "USCIS Policy Memorandum"). 3

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.").

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.

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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.

We are persuaded by USCIS' s interpretation of this provision, which is grounded in the specific language of the statute and is not otherwise contradicted by other relevant authority. Accordingly, we conclude that, as a matter of law (as applied to the specific arguments made by the parties), the respondent's parole under section 212(d)(5)(A) of the Act in 2003 invalidates the ground of inadmissibility contained in the NTA, notwithstanding the fact that the respondent's parole has since been terminated. That is, because the respondent's parole rendered the first prong of section 212(a)(6)(A)(i) of the Act inoperative (and the DHS has not meaningfully argued that the parole's subsequent termination revived that prong), and because parole (including its termination) is irrelevant to the second prong under USCIS's own interpretation, the DHS has not persuaded us that either prong of section 212(a)(6)(A)(i) now covers the respondent's situation.

Similarly, we are unpersuaded by the DHS's assertion in this case that the respondent's initial entry without inspection and admission or parole makes him statutorily ineligible for adjustment of status under section 245(a) of the Act, in light of his subsequent parole pursuant to section 212(d)(5)(A) of the Act (OHS Brief at 2, 4-5). Notably, the language at section 212(d)(5)(A) of the Act uses the phrase "paroled into the United States," which is identical to the language used at section 245(a) of the Act in describing as eligible those aliens who have been "inspected and admitted or paroled into the United States." See Matter of Castillo-Padilla, supra, at 260. For this, and other reasons, this Board and several Circuit Courts, including the Eleventh Circuit, have concluded that an alien who has been paroled under section 212(d)(5)(A) of the Act has established that he has been "paroled into the United States" for purposes of demonstrating eligibility for adjustment of status pursuant to section 245(a) of the Act. See id. at 260-63; see also Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011); Delgado-Sobalvarro v. Attorney General of the United States, 625 F.3d 782 (3d Cir. 2010); Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1116-20 (9th Cir. 2007); Castillo-Padilla v. United States Attorney General, 417 F. App'x 888, 890 (11th Cir. 2011); Matter of C. Valdez, 25 I&N Dec. 824, 826-27 n.1 (BIA 2012). Further, we agree with the respondent's argument that the ultimate termination of his parole does not alter his status as someone who "was ... paroled," for purposes of section 245(a) adjustment eligibility ( emphasis added).

We conclude that a parole pursuant to section 212(d)(5)(A) of the Act following an entry without inspection should be treated the same as any other parole under this provision, as such treatment is reasonable and is consistent with the foregoing case law and cited agency guidance. Moreover, both USCIS and its predecessor agency, the former Immigration and Naturalization Service (INS), recognized the ability to parole individuals already physically present within the United States. See, e.g., Memorandum from Tracy Renaud, Chief, Office of Field Operations,

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USCIS, HQ 70/10.10, Processing of Initial Parole or Renewal Parole Requests Presented by Natives or Citizens of Cuba to USCIS Field Offices, 2008 WL 90394 7 at * 1 (March 4, 2008) ( explaining that Cuban nationals who entered the United States without inspection may present themselves at USCIS field offices within the United States to request parole in establishing eligibility to apply for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended (Cuban Adjustment Act)) (hereinafter "Renaud Memorandum"); Memorandum from Paul W. Virtue for Bo Cooper, General Counsel, INS, HQCOU 120/17-P, Authority to Parole Applicants for Admission Who are Not Also Arriving Aliens, 1998 WL 1806685 at *2 (August 21, 1998) (interpreting section 212(d)(5)(A) of the Act as permitting the parole of an "applicant for admission" who is not an "arriving alien"). Notably, not only has USCIS recognized the agency's ability to parole individuals physically present in the United States under section 212(d)(5)(A) of the Act, but the agency has also explained that those individuals are eligible to adjust their statuses on the basis of such parole. See Renaud Memorandum, supra, at *1 (recognizing the public policy consideration of allowing Cuban nationals who entered the United States without inspection to receive parole from within the United States in qualifying for adjustment of status under the Cuban Adjustment Act); see also Memorandum from Doris Meissner, Commissioner, INS, Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other Than a Designated Port-of Entry, reprinted at 2008 WL 903947 at Attachment A **3-6 (April 19, 1999).

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.

4 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).

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FURTHER ORDER: The record i s 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.

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U . S . DEPl � 11.TMENT OF JUST ICE EXECUT IVE OFFICE FOR IMMIGRAT I ON REVIEW

IMMIGRATION COURT Miami , Florida

Fi le February 1 1 , 2 0 1 1

In the Matter o f

,

Re spondent

CHARGE :

APPLICATION :

ON BEHALF OF THE RESPON DENT :

Martin Lluch , Esquire 3 0 3 0 Coral Way Miami , Florida 3 3 1 4 5

IN REMOVAL PROCEEDINGS

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY :

Brandon J . Josephsen , Esquire 3 3 3 South Miami Avenue Miami , Florida 3 3 1 3 0 .

ORAL DEC I S ION OF THE IMMIGRAT ION JUDGE

Thi s case came on to the record based upon the Notice

to Appear that was dated June 2 3 , 2 0 0 2 ( Exhibit 1 ) . On that

not i ce the respondent was des ignated as having been present in

the United States without admission or parole . It alleges that

the respondent is not a citizen or national of the United States ,

that he i s a native and cit i zen of Costa Rica , that he arrived in

the United States at or near Lewiston , New Yor k , on or about June

f)tr' 2 3 , 2 0 0 2 , and that he has been admitted or paroled after

. '

j q

\,

inspection by an Immigration Officer .

The respondent gave testimony and indicated that he did

actua l l y receive a parole after he cro s s ed into the United States

and was confronted by an Immi grat ion Officer . There has been

argument from the Service that a parole did not is sue to him at a

subsequent date . As far as the parole i s concerned, a copy of

Form I - 9 4 wa s s ubmitted as part of one of the briefs . I t was

filed by counsel for the respondent , indi cating that the

re spondent was a l l owed to be pre sent in the United States and was

granted a parole in the public interest under Section 2 1 2 ( d ) ( 5 )

o f the Immigrati on and Nationality Act .

The Court ha s been informed that the parole was

subsequently revoked . The issue raised in thi s case i s whether

or not the respondent is eligible to adj ust his status in the

United States .

In that respect , the Court has reviewed the memorandum

on eligibility for permanent resident s . I t was prepared by

Commi s s ioner Doris Mei s sner on Apr i l 1 9 , 1 9 9 9 . From a cursory

reading of that , it would appear that a parole should be adequate

for these purpo s e s . Thi s seems to be the ca se notwithstanding

the fact that that memo really related to the Cuban Adj ustment

Act or Cuban/Haitian ent rance status . Still , according to case

law from the Ninth Circuit , Ortega-Cervante s v . Gonzales , 5 0 1

F . 3d 1 1 1 1 , 1 1 1 4 ( 9th Cir . 2 0 0 7 ) , that an alien once paroled into

the United States is el igible to adj ust pursuant to Section 2 4 5

2 February 1 1 , 2 0 1 1

(( � '·

o f the Irrunigration and Nationa lity Act . The statute and

regulati ons do not requi re a paroled alien to maintain parole

status at the time he fi les for adj ustment of status . Rather ,

all that i s required is an inspection and admi s s ion o r parole

into the United States under Section 2 4 5 of the Immigration Act .

Although the Service may have argued and presented a

Noti ce to Appear charging that the respondent had not been

admitted or paroled, the Court finds that the respondent wa s in

fact paroled at some t ime which on one hand could be looked at a

factor to defeat the Not ice to Appear , and on the other basis as

authori z ing the respondent to have e ligibil ity to adj ust his

status a s he was paroled into the United States for humanitarian

reasons . See Matter of Castillo-Parril l a , 2 5 I &N Dec . 2 5 7 , 2 5 9 \ \ /1

( B IA 2 0 1 0 ) . S ince the respondent was admitted purs�ant t o

Section 2 1 2 ( d ) ( 5 ) , th�spondent ' s status can b e adj usted

because the respondent was temporarily paroled into t he United

States for a s igni ficant publ ic bene fit and i s thus , cons idered

an applicant for admi s s i on who is not an arriving al ien . And as

such i s el igible to adj ust his status .

The Court has heard testimony from the respondent as

far as his application for adj ustment of status is concerned . I

have reviewed his Form I - 4 8 5 , it has been indicated that the

respondent has no defect s in that applicat ion , and there has not

been argued that there has been any defects in that application .

The respondent has submitted himself t o fingerprint che cks , and

3 February 1 1 , 2 0 1 1

j d

h e i s apparentl y come across well a s far a s that i s concerned .

The respondent has had a medical examinat ion presented which was

s at i s factory . As stated before , his f ingerprint s we re clear .

The Court sees no bas i s to not adj udicate thi s matter and as

such , this Court will adj udi cate the application for adj ustment

of status favorably and grant the respondent permanent res idence

as the spouse of a citi zen .

4

mmigration Judge 1 1 February 2 0 1 1

February 1 1 , 2 0 1 1

•

CERT I FICATE PAGE

I hereby cert i fy that the attached proceeding_

before STEPHEN E . MANDER in the matter of :

Miami , Florida

was held as herein appears , and that this i s the original

transcript thereof for the file of the Executive Office for

Immigration Revi ew .

�athan Douglas(Transcriber }

Deposit i on Services , Inc . 1 232 1 Mi ddlebrook Road , Suite 2 1 0 Germantown , Maryland 2 0 8 7 4 ( 3 0 1 ) 8 8 1 - 3 3 4 4

April 6 , 2 0 1 1 { Complet ion Date }