Josadac Mariscal-Sandoval v. John Ashcroft, Attorney General ( 2004 )

TALLMAN, Circuit Judge.

Josadac Mariscal-Sandoval, a native and citizen of Mexico, petitions for review of a final order of exclusion by the Board of Immigration Appeals (“BIA”). The BIA affirmed without opinion the Immigration Judge’s (“IJ”) Order, which found Mariscal Sandoval excludable from the United States for knowingly attempting to transport six undocumented aliens from Mexico into California. Mariscal-Sandoval contends that he should have been placed in deportation rather than exclusion proceedings because he had “entered” the United States within the meaning of 8 U.S.C. § 1101(a)(13) (1997).¹ We hold that Maris-cal-Sandoval did not make an “entry” into the country when the Immigration and Naturalization Service (“INS”)² failed to promptly issue him a parole extension. Because he was not entitled to deportation proceedings, we deny the petition for review.

I

Mariscal-Sandoval obtained lawful permanent resident status in the United States in 1992. The INS’s exclusion proceedings against him arose out of an incident that occurred on May 16, 1995, at the Otay Mesa Port of Entry along the United States-Mexico border in California. The INS alleged that Mariscal-Sandoval tried to evade inspection while transporting six undocumented Mexican women into this country in his van, and it issued a notice of excludability that charged him with attempted alien smuggling under the Immigration and Nationality Act (“INA”) § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i) (1995).

The issue Mariscal-Sandoval presents concerns the effect of his pre-hearing parole status in the nearly two years between his initial detention at Otay Mesa and the completion of all exclusion proceedings. He first applied for and was granted parole on May 17, 1995. From 1995 to 1997, he appeared before an IJ for several master calendar hearings. The INS set his parole to expire on the day of each hearing. After each hearing was concluded, Mariscal-Sandoval received a notice from the Immigration Court that directed him to report to the nearest INS office so the INS could re-parole him into the country:³

If you are under exclusion proceedings, you are present in this country under a special permit called parole. The parole permits are issued only by the [INS] and not by this office. If your parole has expired, and you are now residing in this country, you must apply for an extension at [the local INS office]. You must apply in person and should go to that office at once. You will show the people in that office the notice which indicates your upcoming hearing date.

Following these directions, Mariscal-Sandoval reported to the local INS office after each hearing to be re-paroled. The INS then issued him an 1-94 Form⁴ that stated how long his parole would last until it next expired. This sequence of events recurred several times without incident during the next two years.

Of particular relevance are the events that occurred after a hearing on February 19, 1997. As he had many times before, Mariscal-Sandoval reported to the INS office after this hearing and asked to be re-paroled. However, this time he did not receive an 1-94 Form or any other document. Mariscal-Sandoval alleges that an INS officer on duty told him that he must show up for his next scheduled appearance before the IJ, but that he need not carry any particular documentation to prove that he was on parole. Instead, the officer directed Mariscal-Sandoval to carry the notice for his next hearing with him and to present that notice if stopped by an immigration inspector.

At the next hearing on April 2, 1997, Mariscal-Sandoval moved to terminate the exclusion proceedings. In an affidavit, he recounted his interaction with the INS officer on February 19, 1997. He argued that the INS’s failure to provide him with an 1-94 Form that day meant that he had effected an “entry” into the United States and that he now should be in deportation proceedings instead of exclusion proceedings. The IJ denied the motion.

Shortly thereafter, on April 23, 1997, the INS sent Mariscal-Sandoval’s attorney a notice requesting that Mariscal-Sandoval visit the San Diego office so the agency could “extend [his] 1-94 (parole)[.]” The notice also informed Mariscal-Sandoval’s attorney that it was the third time the INS had attempted to notify his client of its intent to extend his parole.

On May 5, 1997, the INS finally issued another 1-94 Form stating that Mariscal-Sandoval’s parole was extended until May 14. His parole was again terminated and renewed without incident for hearings that occurred on May 14, September 11, December 11, and December 18. At the conclusion of all proceedings, the IJ issued an order of exclusion.

When Mariscal-Sandoval filed a petition for review in this court on July 1, 2002, he also requested a stay of removal. Under Ninth Circuit General Order 6.4(c)(1), this caused a temporary stay to automatically issue. The government filed a notice of non-opposition to Mariscal-Sandoval’s motion. On September 9, 2002, pursuant to our local rules, a staff attorney in our Clerk’s office ordered the stay of removal to be continued pending our disposition of his petition for review, or until our further order.

II

We have jurisdiction pursuant to 8 U.S.C. § 1105a(a).⁵ Because the BIA adopted the IJ’s findings and reasoning in full, we review the IJ’s opinion as the basis for the agency’s decision. Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999).

Under the version of the INA in effect at the time of Mariscal-Sandoval’s exclusion proceedings,⁶ “excludable” aliens (those seeking admission from outside the United States) were entitled to fewer procedural protections than “deportable” aliens (those who had “entered” the United States). See Xi v. INS, 298 F.3d 832, 838 (9th Cir.2002); see also Landon v. Plasencia, 459 U.S. 21, 25-27, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Once an alien made an “entry” into the United States, lawfully or unlawfully, the relatively greater protections of deportation proceedings were required. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953); see also Landon, 459 U.S. at 30-32, 103 S.Ct. 321 (holding that the question of whether an alien has made an entry may be decided at either a deportation or exclusion hearing).

The determination of whether Mar-iscal-Sandoval was properly placed in exclusion proceedings or should have been placed in deportation proceedings thus depends upon whether he made an entry into the United States. In 1997, an entry was defined as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise[.]” INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1997). We recently adopted the BIA’s more detailed definition, which requires: “(1) a crossing into the territorial limits of the United States, ie., physical presence; (2)(a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.” See Sidhu v. Ashcroft, 368 F.3d 1160 (9th Cir.2004); see also Matter of Patel, 20 I. & N. Dec. 368, 370, 1991 WL 353524 (BIA 1991).

As to the third prong of the test, the BIA has held that an alien effects an entry when he comes into the United States “free from actual or constructive restraint.” Matter of Sanchez, 17 I. & N. Dec. 218, 220 1980 WL 121869 (BIA 1980) (citations omitted).' In Matter of Sanchez — the main authority upon which Mar-iseal-Sandoval relies — an alien was arrested at the border and charged with mail fraud. Id. at 219. He was brought into this country in INS custody, so at that time no entry was made. Id. at 220. However, “when he was released the following day without bond, and only on the condition that he appear for his trial on the mail charges, an entry was made. He was then free from any legal restraints imposed upon him by the immigration laws.” Id. at 220-21. Because the alien had entered the United States at that point, the BIA held that he should be in deportation proceedings rather than exclusion proceedings.

Mariseal-Sandoval argues that he too should be placed in deportation proceedings because he entered the United States when his parole expired on February 19, 1997, and the INS released him that same day and did not issue him an 1-94 Form to extend his parole until May of that year. He contends that at that point he became “free from restraint” because he was released without being re-paroled as required by 8 C.F.R. § 212.5(d)(2)® (1997), and the only condition on his freedom was that he appear for his continued hearing a month later. We disagree.

The Supreme Court has held that an alien’s parole status was never intended to affect immigration status. Ma v. Barber, 357 U.S. 185, 190, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (noting that an alien’s argument that her parole “placed her legally ‘within the United States’ is inconsistent with the congressional mandate, the administrative concept of parole, and the decisions of this Court.”); see also Matter of L—Y—Y—, 9 I. & N. Dec. 70, 1960 WL 12063 (1960) (holding that the plain language of the exclusion rule, INA § 212(d)(5), renders aliens whose parole has been terminated and who remain in the United States still subject to exclusion proceedings, not deportation proceedings).

Mariscal-Sandoval’s situation differs from the alien in Sanchez in one key respect: unlike Sanchez, Mariseal-Sandoval was already in active exclusion proceedings when his alleged entry occurred. In contrast, Sanchez was not subject to any pending immigration proceedings, only his upcoming criminal trial on mail fraud charges. In this respect, Mariseal-Sando-val’s situation is more closely analogous to our decision in Luk v. Rosenberg, 409 F.2d 555, 558 (9th Cir.1969). In Luk, an alien was paroled into the country while arrangements were made for his upcoming deportation. Id. at 556. A few months later, the INS revoked his parole and told him to appear for departure when notified. Id. That notice did not occur until two years later. Id.

Like Mariseal-Sandoval, Luk argued that he was no longer subject to exclusion proceedings because he had entered the country by virtue of the INS’s failure to take immediate action on his case. Id. at 558. We squarely rejected this argument, noting that Congress did not likely intend “the mere fact of delay to improve an alien’s status from that of one seeking admission to that of one legally considered within the United States.” Id. (quoting Rogers v. Quan, 357 U.S. 193, 196, 78 S.Ct. 1076, 2 L.Ed.2d 1252 (1958)). In this case, the fact that the INS delayed for over two months before reinstating Mariscal-Sando-val’s parole likewise does not serve to alter his immigration status.

Finally, we note that the BIA’s test for determining whether an alien has made an entry requires all three elements to be met: physical presence, inspection and admission or evasion of inspection at the border, and freedom from restraint. See Patel, 20 I. & N. Dec. at 370. Mariseal-Sandoval is physically present in this country. Even if we were to hold that he was “free from restraint” under Sanchez, he still cannot establish that the second prong has been met. He was never inspected and admitted in the usual manner by an immigration officer, nor did he actually succeed in evading inspection at the border. The IJ properly concluded that Mar-iseal-Sandoval had not made an entry and that exclusion proceedings were appropriate.

Ill

Finally, we must address our concurring colleague’s contention that we should dissolve the stay of removal immediately when this opinion is filed, rather than when the mandate is issued.

Today we deny Mariscal-Sandoval’s petition for review. The concurrence reasons that this action means there is no longer a “probability of success on the merits” or any “serious legal questions.” We disagree. Although it is true that “[njothing requires the court to wait until the mandate issues[,J” Concurring Op. at 6835, Mariseal-Sandoval still retains the ability to petition this panel for rehearing, or to petition the court as a whole to review our decision en banc. Until any further petitions to this panel or the entire court are resolved, we cannot say that Mariseal-Sandoval has no probability of success on the merits.

Therefore, we believe that the better course of action is to vacate Mariscal-Sandoval’s stay when we no longer have jurisdiction over his case. Until the mandate issues, we retain jurisdiction, see Sgaraglino v. State Farm Fire & Cas. Co., 896 F.2d 420, 421 (9th Cir.1990), and we are capable of modifying or rescinding today’s opinion, see United States v. Foumai, 910 F.2d 617, 620 (9th Cir.1990). Because we have previously held that “finality of an appellate order hinges on the mandate,” id., we order the Clerk to vacate Mariseal-Sandoval’s stay of removal when the mandate issues.

PETITION DENIED.

1 . We have addressed Mariscal-Sandoval's other arguments in a concurrently filed memorandum disposition.

2 . On March 1, 2003, the Department of Justice transferred the INS's functions to the Bureau of Border Security and the Bureau of Immigration and Citizenship Services. See Homeland Security Act of 2002, Pub. L. No. 107-296 § 471, 116 Stat. 2135 (2002). We will refer to the relevant agency as the INS.

3 . In 1997, the District Director of the INS had exclusive jurisdiction to parole an alien into the country pursuant to 8 C.F.R. § 212.5(a). Matter of Matelot, 18 I. & N. Dec. 334, 336 (BIA 1982). An immigration judge did not have jurisdiction to grant parole. Id.

4 . An 1-94 Form is an alien arrival-departure record that serves as proof of the bearer’s current immigration status and the time period during which his stay in this country is authorized. See 8 C.F.R. § 229.1 (1997) (prescribing the forms used by the INS).

5 . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA'’) repealed 8 U.S.C. § 1105a and replaced it with new rules for judicial review now codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by the Extension of Stay in the United States for Nurses Act, Pub.L. No. 104-302, 110 Stat. 3656 (Oct. 11, 1996). However, this case is governed by IIRIRA’s transitional rules and we continue to have jurisdiction pursuant to 8 U.S.C. § 1105(a) because the INS commenced exclusion proceedings against Maris-cal-Sandoval prior to April 1, 1997, and the final order of exclusion was entered after October 30, 1996. See IIRIRA § 309(c)(1).

6 . The IIRIRA merged deportation and exclusion proceedings into the broader category of "removal” proceedings. See Kalaw v. INS, 133 F.3d 1147, 1149 n. 2 (9th Cir.1997).