Carreon v. Attorney General , 288 F. App'x 855 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
Carreon v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2870
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2870
___________
JUANITO CARREON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A 91-506-665)
Immigration Judge: Daniel A. Meisner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2008
Before: FUENTES, ALDISERT and GARTH, Circuit Judges
(Opinion filed: August 4, 2008)
___________
OPINION
___________
PER CURIAM
Juanito Carreon, an alleged native and citizen of the Philippines, petitions for
review of a final order of the Board of Immigration Appeals (“BIA”), ordering his
removal from the United States.
On or about November 4, 2002, Carreon applied for adjustment of status or
permanent residence based on the Legal Immigration Family Equity (“LIFE”) Act.1 On
March 28, 2005, United States Citizenship and Immigration Services (“USCIS”) notified
Carreon by letter that the Department intended to deny his application because he had
failed to provide evidence that he entered the United States before January 1, 1982, and
continued residence through May 4, 1988, as required by the statute. (Joint Appendix
(“App.”) at 102.)2
On May 5, 2005, Carreon was interviewed by USCIS in conjunction with his LIFE
legalization application. At the interview, USCIS determined that Carreon was not
eligible for permanent residence under the LIFE Act and Carreon was thus instructed by
the officer conducting the interview to sign a statement indicating that he “entered the
United States for the first time on or about August 7, 1987 . . . using a non-immigrant B-2
1
In 1986, Congress enacted the Immigration Reform and Control Act (“IRCA”), which
created a legalization program that “allow[ed] existing undocumented aliens to emerge
from the shadows” and gain legal residency in the United States. McNary v. Haitian
Refugee Ctr., 498 U.S. 479, 483 (1991). IRCA provided undocumented aliens who had
resided continuously in the United States since January 1, 1982, with the opportunity to
apply to the INS for legal resident status. See 8 U.S.C. § 1255a; INA § 245(i). The LIFE
Act was enacted on December 21, 2000. Pub. L. No. 106-554, § 1101, 114 Stat. 2763
(codified as amended at 8 U.S.C. § 1255 (Dec. 21, 2000)). “It extended the
grandfathering provision of [the IRCA] § 245(i), offering adjustment of status to anyone
present in the United States, legally or illegally, who had a petition for an immigrant visa
submitted on his or her behalf by April 30, 2001.” Piranej v. Mukasey, 516 F.3d 137, 140
n.5 (2d Cir. 2008).
2
Carreon was given thirty days to submit evidence in opposition to the intended denial
and in support of his application for adjustment of status which he apparently failed to do.
2
visa” and that he “voluntarily wish[ed] to withdraw the adjustment of status application
that [was] filed on October 13, 2001.” (App. 106.) The statement also contained
Carreon’s admission that he was “not present in the United States on January 1, 1982, in
unlawful status” and that he understood that he was not qualified to receive benefits under
the provisions of the LIFE Act. (Id.)
Carreon was placed in removal proceedings on July 11, 2006. (App. 155.) The
Notice to Appear (“NTA”) alleged that he was an arriving alien paroled into the United
States at a port of entry on or about May 29, 2002, for a period of one year until May 28,
2003, to pursue his application of adjustment of status, and that he voluntarily withdrew
his application for adjustment of status on May 5, 2005. As an alien inadmissible due to
invalid entry documentation, he was charged with removability. 8 U.S.C. §
1182(a)(7)(A).
Carreon appeared before the IJ on February 23, 2006, and again on March 1, 2006.
He denied all the factual allegations and moved to terminate the removal proceedings.
The IJ entered into the record Carreon’s motion to terminate, his withdrawal of his
adjustment application and the USCIS denial. The Government sought to question
Carreon about his nationality and immigration status; however, on the advice of his
attorney, Carreon refused to answer any questions as to his nationality or alienage. The
Government then sought to establish alienage using various other documentation,
including evidence Carreon had provided pursuant to his application for adjustment of
3
status under the LIFE Act regulations. Through his attorney, Carreon objected to the
admission of any documents associated with his LIFE application on the basis of
confidentiality provisions set forth in the regulations that govern INA § 245(a). See 8
C.F.R. § 245a.21.
The IJ was not convinced that the LIFE Act was subject to the same confidentiality
requirements as INA § 245(a), nor that Carreon’s voluntary withdrawal of his application
for adjustment of status was entitled to confidentiality. Nonetheless, the IJ did not rule on
the basis of that documentation. Instead, the IJ concluded that the Arrival or Departure
document, Form I-94, which Carreon submitted in Anchorage, Alaska, on May 29, 2002,
and which contained Carreon’s name and designated his country of citizenship as the
Philippines, (App. at 96), was sufficient documentation to establish alienage and to shift
the burden to Carreon to establish lawful status in the United States.3 Carreon did not
attempt to satisfy this burden, and the IJ therefore ordered Carreon removed from the
United States as an arriving alien. The BIA affirmed without opinion, and Carreon filed a
timely petition for review. Because the BIA affirmed the decision of the IJ without
3
Between 1999 and 2002, the Immigration and Naturalization Service (“INS”) (now
the Department of Homeland Security) provided Form I-94—Departure or Arrival
Record—as temporary proof of status, and accompanied the alien’s visa. See Etuk v.
Slattery, 936 F.2d 1433, 1438 (2d Cir. 1991); United States v. Ndiaye, 434 F.3d 1270,
1278 (11th Cir. 2006). “The I-94 documented the non-immigrant classification of the
alien, such as tourist, or visitor for pleasure or business or student. The alien’s
classification was also listed on his or her visa, and both the I-94 and visa were placed in
the alien’s passport and discussed with the alien by INS at the point of entry into this
country.” Ndiaye, 434 F.3d at 1278.
4
opinion, we review the decision of the IJ. See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.
2003).
Carreon contends that the IJ erred in holding that his withdrawal of his adjustment
of status application and Form I-94 were not covered by the confidentiality provisions in
8 C.F.R. § 245a.21.4 He further argues that the IJ erred in ordering Carreon removed as
an arriving alien seeking admission because a legalization applicant who enters on an
advance parole or Form I-94 document cannot be charged as inadmissible, but only as a
deportable alien.5 The Government argues that substantial evidence supports the IJ’s
finding of Carreon’s alienage based solely on the Form I-94 Arrival-Departure Record.6
4
Carreon does not dispute that Form I-94 is sufficient to prove his alienage. Both the
Board and several Courts of Appeal have found Form I-94 sufficient to establish alienage.
See, e.g., United States v. Pahlavani, 802 F.2d 1505, 1506 (4th Cir. 1986) (finding I-94,
standing alone, sufficient to establish alienage); see also Matter of Chen, 15 I. & N. Dec.
480, 483 (BIA 1975); Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 853 n.4 (9th Cir.
2004) (Form I-94 is “proof of the bearer’s current immigration status and the time period
during which his stay in this country is authorized.”); United States v. Hammoude, 51
F.3d 288, 292 (D.C. Cir. 1995) (acknowledging Form I-94 as evidence of identification).
5
Carreon also argues that the IJ erred in holding that the LIFE legalization provisions
may not entitle Carreon to the same confidentiality protections that exist for legalization
applications under INA § 245A. However, the IJ did not hold that § 245A’s
confidentiality provisions do not apply to LIFE application materials. We therefore
decline to rule on the applicability of the confidentiality provisions in 8 C.F.R. § 245a.21
to the LIFE legalization statute.
6
The Government notes that Carreon’s passport was also submitted as evidence and
definitively establishes Carreon’s alienage. Carreon appears to assert that his passport
was also “information furnished pursuant to [his] application for adjustment of status”
and thus subject to any confidentiality restriction. (Pet’s Br. at 15.) However, we need
not resolve this issue as the IJ did not rely on Carreon’s passport in concluding that
Carreon was removable.
5
Because the IJ ordered Carreon removed solely on the basis of the Form I-94 document,
we confine our discussion to whether the Form I-94 that Carreon submitted upon entry to
the United States is subject to the confidentiality provisions in 8 C.F.R. § 245a.21, and
whether the IJ properly considered Carreon inadmissible.
As the Government points out, even assuming that the confidentiality provisions
governing INA § 245(a) apply equally to the additions to the statute pursuant to the LIFE
Act, the confidentiality provision only extends to “information furnished pursuant to an
application for permanent resident status under the [regulations].” 8 C.F.R. § 245a.21(b).
Carreon argues that Form I-94, the advance parole document, was generated or produced
in conjunction with his LIFE legalization application; however, there is no evidence to
support this claim. Carreon filled out Form I-94 on May 29, 2002, when he arrived in
Anchorage. He did not file his LIFE Act application until just over five months later, on
or about November 4, 2002. Carreon therefore did not “furnish” the “information”
therein, “pursuant to” his LIFE Act application for adjustment of status, as required by the
confidentiality regulations. 7 Instead, he furnished that information pursuant to his
inspection and parole into the United States. Accordingly, the IJ properly considered
Carreon’s Form I-94 as proof of his alienage.
Carreon also argues that the IJ erred in describing him as an “arriving alien”
7
“Pursuant to” means “following upon, consequent and conformable to; in accordance
with.” See United States v. Copeland, 381 F.3d 1101, 1107 (11th Cir. 2004) (citing
Oxford English Dictionary (2d ed. 1989)).
6
seeking admission because an applicant for adjustment of status under the LIFE Act
regulations cannot be charged with inadmissibility. Carreon relies on two Ninth Circuit
Court of Appeals cases, Sissoko v. Rocha, 440 F.3d 1145, 1153 (9th Cir. 2006), and
Espinoza-Gutierrez v. Smith, 94 F.3d 1270 (9th Cir. 1996), for this proposition; however,
both cases are inapposite. Unlike the appellant in Sissoko who was already a temporary
resident when he was granted advance parole to attend a funeral in Senegal, Carreon was
not a legalization applicant who left on advance parole while the application was pending
and returned after a brief trip. Cf. Sissoko, 440 F.3d at 1150. Likewise in Espinoza-
Gutierrez, the appellant was a legalization applicant who flew to Mexico during the
pendency of her application without first requesting advance parole from INS. 94 F.3d at
1277. Carreon, however, entered the United States for the first time on May 29, 2002, at
which time he was granted one year of advance parole. He applied for adjustment of
status five months later. Thus, his legalization application could not have been pending
on the day that he entered the United States. Moreover, Carreon’s legalization application
was withdrawn on May 5, 2005. Because his application was no longer pending on July
11, 2006, the date of his NTA, he could no longer be considered an applicant under the
LIFE Act.
Finally, we note that Carreon’s year grant of advance parole status did not change
his status as an arriving alien. “An arriving alien remains an arriving alien even if paroled
pursuant to section 212(d)(5) of the [Immigration and Nationality] Act, and even after any
7
such parole is terminated or revoked.” 8 C.F.R. § 1.1(q). Thus, the IJ properly
considered Carreon an “arriving alien” subject to removal.
For the foregoing reasons, we will deny the petition for review.
8