Ortega-Cervantes v. Gonzales, (9th Cir. Sept. 4, 2007)

A conditional parolee under INA §236(a) is not "paroled into the United States" and is therefore, ineligible for adjustment of status under INA §245(a).

On June 8, 2002, Petitioner, a native and citizen of Mexico, was apprehended along with 14 other undocumented individuals who had been smuggled into the U.S. Petitioner was served with a notice to appear, charging him with removability as an unlawful entrant under INA §212(a)(6)(A)(i). On June 20, 2002, in an effort to secure his testimony in the criminal prosecution of the smuggler, Petitioner was issued an order of release on recognizance (Form I-220A), which stated that he was being released, or paroled, in accordance with INA §236. Petitioner was not issued an I-94. Several days after his release, Petitioner married a U.S. citizen and applied for adjustment of status. Although never called upon to testify against the smuggler, Petitioner reported to INS as required, and was released on bond. In proceedings, the immigration judge concluded that Petitioner was ineligible for adjustment of status because a conditional parolee under INA §236(a) is not a person who has been "paroled into the United States" as required under INA §245(a). The BIA affirmed, rejecting Petitioner's reliance on a 1999 INS policy memorandum as not having "the force and effect of law."

Under INA §245(a), the status of a person who was inspected and admitted "or paroled into the United States…may be adjusted…" if the person submits an adjustment application, is eligible to receive an immigrant visa, is admissible to the U.S., and an immigrant visa is immediately available. Under INA §212(d)(5)(A), "[t]he Attorney General may…in his discretion parole into the United States temporarily…for urgent humanitarian reasons or significant public benefit any alien applying for admission…." A second parole provision, INA §236(a)(2)(B), provides for "conditional parole" of persons who are detained pending a final decision on removal. The court explained that it is undisputed that a person paroled under INA §212(d)(5)(A) is "paroled into the United States" for purposes of adjustment under §245(a).

First, the court rejected Petitioner's argument that he was actually paroled under INA §212(d)(5)(A), noting that the warrant, the notice of custody determination and the order of release on recognizance all reference INA §236 as opposed to §212(d)(5)(A). In addition, when Petitioner was released on his own recognizance, his parole was "conditioned" on certain events, including the reporting back to INS at the conclusion of the criminal proceedings in which Petitioner was a witness. Also, Petitioner was not issued a Form I-94 which is typically given to a §212(d)(5)(A) parolee. Although 8 CFR §212.5(b)(4) authorizes parole under §212(d)(5)(A) for persons "who will be witnesses" in judicial proceedings, the court explained that the regulation is limited to "arriving aliens," and persons deemed inadmissible under INA §212(a)(6)(c) or (7) and that Petitioner falls under neither of these categories. Although holding that Petitioner was not granted parole under §212(d)(5)(A), the court expressly did not hold that the government may never grant such parole to persons present in the U.S. who were not inspected and admitted.

Turning to Petitioner's alternative argument, the court considered whether a person who is conditionally paroled under INA §236(a) is "paroled into the United States" for purposes of adjustment of status under INA §245(a). Noting that the statute and regulations do not expressly preclude conditional parolees from adjustment of status, the court examined the legislative history and purpose of the provisions. Although §245(a) did not originally reference parolees, the provision was added in 1960 as part of a joint resolution authorizing the parole of certain refugees in order "to ensure that a class of otherwise excludable aliens who were being brought to the United States for humanitarian reasons would have an opportunity to become lawful permanent residents." See 106 Cong. Rec. 15389 (1960). Therefore, Congress did not intend the amendment to benefit persons who had been taken into custody and then released on parole pending a final determination on their removability.

IIRAIRA replaced the concept of "entry" with "admission" thereby subjecting all applicants for admission to inspection by an immigration officer and an admissibility determination, whether at the border or already present in the U.S. Therefore, it has been suggested that since IIRAIRA, any grant of parole allows a person "into the United States" pending a final determination on admissibility. As such, two INS memoranda have suggested that unlawful entrants paroled under §236(a) might qualify for adjustment of status. See INS, General Counsel's Office, Legal Op. No. 9810, 1988 WL 1806685 (Aug. 21, 1998); INS Commissioner, Meissner, Cuban Adjustment Act Memorandum (Apr. 19, 1999). However, the court rejected Petitioner's reliance on these documents, noting that internal memoranda are not binding authority. Moreover, post-IIRAIRA, the two parole provisions "continue to serve distinct purposes": §212(d)(5)(A) allows "deserving" persons to come temporarily to the U.S. who might not otherwise be admissible, while §236(a) focuses on persons already present in the U.S. who either entered unlawfully or who were lawfully admitted but have become subject to removal. In enacting IIRAIRA, Congress did not express any intent to allow the latter group to adjust their status. Finally, the court noted, "[g]iven that [INA §245(i)] permits unlawful entrants to adjust their status only under certain specified conditions, it would be odd to read [§245(a)] to authorize unlawful entrants who do not meet those conditions to seek adjustment of status whenever they are conditionally paroled pursuant to [§236(a)]. The petition for review was denied.

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