Microsoft Word Paul W Virtue Memorandum (1998 WL 1806685) (2)

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1 Legal Op. No. 98-10 (INS), 1998 WL 1806685 U.S. Department of Justice Immigration and Naturalization Service General Counsel's Office MEMORANDUM FOR: EXECUTIVE ASSOCI ATE COMMISSIONER FOR POLICY AND MMISSIONER FOR FIELD OPERATIONS, PLANNING, EXECUTIVE ASSOCIATE CO ALL REGIONAL COUNSELS, ALL DISTRICT COUNSELS, and ALL SECTOR COUNSELS FROM: Paul W. Virtue /s/ Bo Cooper for General Counsel SUBJECT: Authority to parole applicants for admission who are not also arriving aliens HQCOU 120/17-P August 21, 1998 I. QUESTION *1 This memorandum addresses the following issue, wh ich has arisen recently in several cases in the Miami district: Does the Service have authority to parole an who is not also an applicant for admission “arriving alien,” as defined by 8 C.F.R. § 1.1(q)? II. SUMMARY CONCLUSION red without inspection are now considered in Aliens who were once deportable for having ente law to be applicants for admission, § 235(a)(1)(A), 8 U.S.C. § 1225(a)(1)(A), who are id. inadmissible, id. § 212(a)(6)(A)(i), 8 U.S.C. § 1182( a)(6)(A)(i). As aliens applying for admission, they are within the scope of the st atutory parole authority. INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). The Service has author ity, therefore, to parole an applicant for defined by 8 C.F.R. § 1.1(q). It remains the admission who is not also an “arriving alien,” as retion, not an entitlement . INA § 212(d)(5)(A), 8 case, however, that parole is an act of disc U.S.C. § 1182(d)(5)(A). III. ANALYSIS This question over the extent es because of two significant of the parole authority aris amendments to the immigrati on laws enacted in 1996. INA § 212(a)(6)(A)(i) and 235, 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1225, as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Division C, §§ 301(c) and 302(a), 110 Stat. 3009-546, 3009-578, 3009-579. First, aliens who are present in the United States without having been admitted or paroled are now deemed to be applicants for admission, id. § 235(a)(1), 8 U.S.C. § 1225(a )(1), who are inadmissible, id. § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Before this amen dment, of course, aliens who had entered the United States without having been inspected were amenable to deportation, rather than to exclusion, proceedings. 8 U.S.C. § 1251(a)(1)(B) (1994) . Second, Congress has now provided for an expedited removal proceeding, conducted by a Servic e officer, rather than an immigration judge.

2 INA § 235(b)(1)(A), 8 U.S.C. § 1225(b)(1)(A). Th e Service may invoke this procedure if an ited States” is inadmissible becau se the alien does not have the alien “who is arriving in the Un ained a passport or visa by fraud or material required passport or visa, or because the alien obt gulation which aliens are to be considered misrepresentation. The Service has defined by re Fed. Reg. “arriving aliens.” 8 C.F.R. § 1.1(q), 63 as amended, 19,382, 19,383 (1998). The consequence of these two amendments is that there are now two categories of applicants for 62 admission: those who are arriving aliens, and those who are not. 444, 444- See, e.g., Fed. Reg. 1 5 (1997). INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A), give s the Attorney General authority to parole from custody “an alien applying for admission” who would otherwise be held in custody until the Attorney General had resolved whether to admit order to exercise this or remove the alien. In authority, the Attorney General must find, on either that “urgent a case-by-case basis, parole, or that paroling the alie humanitarian reasons” justify the n will yield a “significant public benefit.” Id. Even if the Attorney Genera l finds that either factor exists, parole remains a matter is no judicial review of the exercise of this discretion. Id. of discretion. In fact, there § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a) (2)(B)(ii). The Attorney Genera l has delegated this parole authority to the Service. 8 C.F.R. § 2.1. *2 As we have already noted, aliens who were once deportable for having entered without inspection are now considered in la w to be applicants for admission, id. § 235(a)(1)(A), 8 U.S.C. § 1225(a)(1)(A), who are inadmissible, id. § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). As scope of the statutory pa role authority. INA § aliens applying for admission, they are within the 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). The question whether there is authority to parole th ese aliens arises not from the statute itself, but 2.5. Section 212.5(a) specifies circumstances in from an implementing regulation. 8 C.F.R. § 21 which it is, generally, appropriate to parole aliens “detained in accordance with § 235.3(b) or Id. (c).” to the universal set of all applicants for Sections 235.3(b) and (c), in turn, refer not admission, but to the subset of arriving aliens. 8 C.F.R. § 235.3(b) (arriving aliens subject to 2 Section expedited removal) and (c) (arriving alie ns subject to § 240 removal proceedings). 212.5(b) refers to “all other arriving aliens.” 8 C.F.R. § 212.5(b). Neither § 212.5(a) nor § 212.5(b) addresses the parole of applicants fo r admission who are not al so “arriving aliens.” Neither provision, therefore, purports to prohi ercising the Attorney bit the Service from ex General's broad statutory parole authority in the case of an app licant for admission who is not an “arriving alien.” For two reasons, we conclude that § 212.5 cannot co rrectly be read as exhausting the Service's parole authority. First, nothing in § 212.5 expressly purports to forbid the pa role of applicants for admission who are not also arriving aliens. Sec tion 212.5 simply says nothing at all about that issue. Second, as we have not ed, the Attorney General has de legated to the Commissioner the fullness of the Attorney General's statutory auth ority under the INA, except for matters delegated to the Executive Office for Immigration Review. 8 C.F.R. § 2.1. The Service, therefore, may parole anyone whom the Attorney General may parole.

3 We are mindful of the protracted litigation that resulted in Jean the Supreme Court's judgment in 472 U.S. 846 (1985). But our reading of § 212.5 is an expa v. Nelson, nsive, not a restrictive, that the parole authority is as broad authority. A rule that said, in effect, application of the parole terpretative rule. There is no obligation to publish as the statute says it is, would clearly be an in interpretative rules in accordance with th e APA. 5 U.S.C. § 553(b)(A) and (d)(2). We are also aware of the argument that our conc lusion, in effect, gives an inadmissible applicant for admission who is not an ar riving alien “two bites at the apple” in seeking release from e alien may seek release from the immigration custody. If the Service denies a parole request, th judge. 8 C.F.R. § 236.1(d)(1). The restrictions on the immigration judge's authority would not apply, since the alien is not an “arriving alien.” Cf. 8 C.F.R. §§ 3.19(h)(1)(B) and (2)(I)(B) and as amended, 63 236.1(c)(11), 27,441, 27,448-49 (1998). But release under § 236 of the Fed. Reg. Act and 8 C.F.R. § 236.1(d)(1) should not be seen as a separate form of relief from custody. Any ody, without resolution of his or her admissibility, release of an applicant for admission from cust See INA §§ 101(a)(13)(B) and 212(d)(5)(A), 8 U.S.C. §§ 1101(a)(13)(B) and is a parole. 1182(d)(5)(A); Leng May Ma v. Barber, 357 U.S. 185, 189 (1958); Matter of L- Y- Y-, 9 I &N ant for admission who is not an “arriving alien,” Dec. 70, 71 (BIA 1960). In the case of an applic should be seen as complementar therefore, § 212(d)(5)(A) and § 236 y, rather than as alternative at the traditional rule has been that neither the Board nor an release mechanisms. We realize th immigration judge had authority to Matter of Conceiro, 14 I &N exercise the parole authority. Dec. 278, 281 (BIA 1973). But the Board based this rule on the fact that the Attorney General had established by regulation that only the Service could exerci se the parole authority on the Attorney General's behalf. Id. delegation of the parole authority The statute itself does not forbid ice officers. INA § 212(d)(5)(A to officials who are not Serv ), 8 U.S.C. § 1182(d)(5)(A). *3 The Service may consider it imprudent, as a ma tter of policy, to permit an immigration judge to adjudicate requests for release made by applic ants for admission who are not arriving aliens. ask the Attorney Genera l to amend 8 C.F.R. §§ The way to achieve this policy, however, is to s no authority to parole in these cases does 3.19 and 236.1. Taking the position that the Service ha ppear to permit an immigration j udge to adjudicate a request for not amend the regulations that a release, if the applicant for ad mission is not an arriving alien. We conclude that the Service may, in the exer cise of discretion, paro le any applicant for admission, if the Service finds that parole would serve urgent humanitari an reasons or yield a significant public benefit. INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 2.1. Aliens een admitted or paroled are applicants for present in the United States without having b admission. Id. § 235(a)(1)(A), 8 U.S.C. § 1225(a)(1)(A). To say that these aliens are for eligible parole, of course, does not mean that they are entitled to parole. Whether to parole any particular alien remains a matter entrusted to the exercise of discretion. Id. § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). The exercise of this discre judicial review. Id. § tion is not subject to 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii). Paul W. Virtue for Bo Cooper General Counsel Footnotes 1

4 The Attorney General has the authority to invoke the expedited removal proceeding against an alien who is inadmissible because he or she is pres on or parole, if the alien has been ent in the United States without admissi )(iii), 8 U.S.C. § 1225(b)(1)(A )(iii). To date, neither the physically present for less than 2 years. INA § 235(b)(1)(A exercise this authority. 8 C.F.R. § 235.3(b)(1)(ii); cf. 62 Fed. Attorney General nor the Commissioner has chosen to Reg. 10,312, 10,313 (1996). 2 Section 235.3(b) also refers to applicants for admission who are not arriving aliens, but who are inadmissible, and subject to expedited removal, because they are present w ithout admission or parole, but have been present for less than two years. 8 C.F.R. § 235.3(b)(1)(ii). No aliens currently belong to this subset, since neither the Attorney General nor the Commissioner has provided for the use of expedited removal proceedings for these aliens. Legal Op. No. 98-10 (INS), 1998 WL 1806685 1998 WL 1806685, 1-3

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