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IMMIG BIA NO ABSENTIA Removal if Not Paroled Detained

IMMIG BIA NO ABSENTIA Removal if Not Paroled Detained

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Published by: matt29nyc on Nov 17, 2008
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06/16/2009

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In re Luis Alfonso SANCHEZ-Avila, Applicant
File A92 764 131- El Centro
 Decided June 14, 1996 
U.S. Department of JusticeExecutive Office for Immigration ReviewBoard of Immigration Appeals
(1) Under the present statutory and regulatory scheme, an Immigration Judge properlydeclined to order an alien excluded in absentia where the Immigration and NaturalizationService did not detain or parole the alien at the time he applied for admission to the UnitedStates, but instead returned him to Mexico with instructions to appear for an exclusion hear-ing at a later date.(2) By directing an applicant for admission to return to Mexico after being served with aNotice to Applicant for Admission Detained for Hearing before an Immigration Judge(Form I-122), the Service in effect consented to the alien’s withdrawal of that applicationwhen the alien elected not to return to pursue his application for admission to the UnitedStates.Pro seFOR APPLICANT AS AMICUS CURIAE: Daniel C. Horne, Esquire and Daniel M.Kowalski, Esquire, Denver ColoradoFOR IMMIGRATION AND NATURALIZATION SERVICE: David Dixon, Chief AppellateCounselBefore: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, andGUENDELSBERGER, Board Members. Concurring and Dissenting Opinion: ROSENBERG,Board Member.HOLMES, Board Member:
In a decision dated March 9, 1995, the Immigration Judge ordered exclu-sionproceedingsterminatedinthisand12othercases.HeandanotherImmi-gration Judge, who had terminated other exclusion proceedings on theidentical grounds, certified their decisions to this Board for review pursuantto the provisions of 8 C.F.R. § 3.1(c) (1995). The Immigration and Natural-izationServicefiledabriefinresponsetotheImmigrationJudgesdecisions,arguing that the orders of termination were in error and requesting that theproceedings be remanded with instructions to proceed in absentia.
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As the decisions in these certified cases presented significant questions of statutory and regulatory construction and as the applicants not only wereunrepresented, but also did not appear at their exclusion proceedings orrespond to the notice of certification, the Board invited the submission of amicus curiae briefs. Pursuant to the Board’s request for further briefing, theService filed a supplemental brief. An amicus brief ultimately was filed onbehalf of the American Immigration Lawyers Association. The decision inthis case will be fully addressed as it is representative of the others. The deci-sion of the Immigration Judge will be affirmed in part.
I. FACTS
The applicant apparently arrived by vehicle at the land border port of Calexico, California, on November 10, 1994, and applied for entry into theUnited States as a resident alien commuter. He was not admitted. Instead,that same day he was served with a Notice to Applicant for AdmissionDetained for Hearing Before Immigration Judge (Form I-122), which puthim on notice that he appeared to come within the exclusion provisions of sections 212(a)(2)(A)(i)(II) and (C) of the Immigration and Nationality Act,8 U.S.C. §§ 212(a)(2)(A)(i)(II) and (C) (1994). Both exclusion groundsrelate to involvement with controlled substances.TheFormI-122advisedtheapplicantthathewas“detainedunderthepro-visions of section 235(b) of the Immigration and Nationality Act, asamended,forahearingbeforeanImmigrationJudgetodeterminewhetherornot [he was] entitled to enter the United States or whether [he should] beexcluded or deported.” This form also reflected that the hearing before theImmigration Judge was to be scheduled at a later date and that the applicantwanted the notice of hearing sent to an address in Mexico. On November 10,1994, the applicant also signed a separate, untitled form that in part reflectedthat he understood that he had been placed in exclusion proceedings and thatthe notice of the scheduled hearing would be sent to him at the address inMexico that he had provided. This form included the warning: “If you do notappear for your scheduled hearing, you will be ordered excluded anddeported in your absence.”On December 15, 1994, a notice of hearing was mailed to the applicant bythe Office of the Immigration Judge (now called the Immigration Court)advising him that an exclusion hearing before an Immigration Judge wasscheduled for 8:00 A.M. on February 7, 1995. This notice was sent by regularmailtotheapplicantandapparentlywasnotreturnedtotheImmigrationCourtasundeliverable.Theaddresstowhichthenoticewasmailedwaslargelycom-plete.However,itwasnotidenticaltotheaddressprovidedbytheapplicant.
1
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1
In view of the resolution of this case, the discrepancy in addresses need not be furtheraddressed. We note, however, that supplemental briefing was requested on the issue of mailservicetoMexico.Anyissuesposedbysuchservicewerenotfurtheraddressedbytheparties.
 
When the exclusion proceedings convened on February 7, 1995, theImmigration Judge noted that the applicant had not appeared for the hearing.The Immigration Judge advised the Service that there was an initial jurisdic-tionalissuewhichneededtobeaddressedbecausetheapplicant,whohadnotappeared, had not been detained or paroled by the Service. The ImmigrationJudge indicated that he had received briefs from the Service on the relevant jurisdictionalissueinothercasesandhewaspreparedtoenteranordertermi-nating proceedings if the Service wished him to proceed with this case ratherthan “renoticing it.” The Service requested that the Immigration Judge pro-ceed with a decision.
II. DECISION OF THE IMMIGRATION JUDGE
InhisMarch9,1995,decision,theImmigrationJudgeemphasizedthefol-lowing facts. The applicant sought entry into the United States at Calexico,California. Immigration inspectors were unable to determine that he wasentitled to enter the United States. The applicant was refused admission.However,hewasneitherdetainednorparoledbytheService.Instead,hewasheld only so long as was necessary to complete the initial inquiry and beserved with a charging document initiating exclusion proceedings (the FormI-122). He was then told to wait in Mexico for his hearing. The ImmigrationJudge characterized this sequence of events as “tantamount to temporaryexclusion by the officer at the port of entry.” The Immigration Judge notedthat the charging document was filed with the Immigration Court “followingthe release and temporary exclusion of the [applicant] to Mexico.” The aliendid not appear at the scheduled exclusion hearing to pursue his applicationfor admission.In the Immigration Judge’s view, this case raised the threshold issue of “whether an Immigration Judge has jurisdiction to hear an exclusion case inabsentia if the alien has not been detained or paroled under the Act.”“Applying the plain language of the statute,” the Immigration Judge con-cluded that he was “without jurisdiction to proceed in absentia in the limitedcircumstances of [this case.]”The principal statutory provisions relating to the entry and exclusion pro-cess are sections 235 and 236 of the Act, 8 U.S.C. §§ 1225 and 1226 (1994).The Immigration Judge pointed out that under section 235(b) of the Act theAttorney General “
shall detain
for further inquiry [any alien] who may notappeartotheexaminingimmigrationofficerattheportofarrivaltobeclearlyand beyond a doubt entitled to land.” Section 236(a) of the Act provides thatan Immigration Judge “shall have authority in any case to determine whetheranarrivingalien
whohasbeendetainedforfurtherinquiryundersection235
shall be allowed to enter or shall be excluded and deported.” (Emphasisadded.) The Immigration Judge noted that in discussing these provisions of law, the United States Supreme Court had observed that aliens who do not
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