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Tineo v. Ashcroft

December 04, 2003

CARLOS TINEO, APPELLEE,
v.
JOHN ASHCROFT, ATTORNEY GENERAL, U.S.A.; JAMES W. ZIGLAR, COMMISSIONER OF THE I.N.S.; ANDREA QUARANTILLO, DISTRICT DIRECTOR I.N.S. NEWARK; I.N.S.; LORELI VALVERDE, ASSISTANT DIRECTOR FOR DEPORTATION I.N.S.; JOHN DUFFY, WARDEN, BERGEN COUNTY JAIL, APPELLANTS.



On Appeal from the United States District Court for the District of New Jersey District Court Judge: The Honorable Joel A. Pisano (02-CV-2883)

Before: Alito, Fuentes and Greenberg, Circuit Judges

The opinion of the court was delivered by: Fuentes, Circuit Judge

PRECEDENTIAL

Argued April 7, 2003

OPINION OF THE COURT

The Attorney General and officials of the United States Immigration and Naturalization Service (collectively, the "INS")*fn1 appeal the District Court's partial grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner, Carlos Tineo, is a lawful permanent resident of the United States who briefly left the country to visit the Dominican Republic, his country of citizenship. Upon his return, the INS classified Tineo as an alien "seeking an admission," detained him, and charged him with being "inadmissible" for having been convicted of various offenses in the United States. See 8 U.S.C. §§ 1101(a)(13)(C), 1182(a)(2), and 1229a. Pending the removal proceedings against him, Tineo requested a bail hearing. He contended that he was not an alien seeking admission, but rather a returning lawful permanent resident because his trip abroad was "innocent, casual, and brief " and not meaningfully or intentionally interruptive of his residence in the United States. Rosenberg v. Fleuti, 374 U.S. 449, 461 (1963). According to Tineo, the nature of his trip and his legal status upon return to the United States made him eligible for release on bail. The District Court concluded that the doctrine of an innocent, casual, and brief departure as set forth in Fleuti still applied and that, therefore, Tineo was entitled to a bail hearing.

Under a prior statute governing the classification of returning lawful permanent residents, Tineo may indeed have been entitled to such a classification. The principal issue before us, however, is whether the specific provision of the prior statute and the common law doctrine of Fleuti survived the comprehensive amendments to the immigration laws enacted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended at 8 U.S.C. § 1101 et seq. ). Although there are meritorious arguments on both sides of the issue, we hold that the doctrine of an "innocent, casual, and brief " departure, as Tineo seeks to assert here, is inconsistent with the wholesale amendments to the relevant statutory scheme enacted in the IIRIRA. In addition, we hold that the decision of the Board of Immigration Appeals in In re Collado-Munoz, 21 I. & N. Dec. 1061, 1064 (BIA 1998) (as amended), finding that Fleuti did not survive the passage of the IIRIRA, should be accorded the proper degree of administrative deference. See Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 844 (1984). Accordingly, we will reverse the judgment of the District Court.

I.

A.

Because this appeal involves difficult issues of statutory interpretation and the effect of legislative amendments, we find it useful to review briefly the evolution of the legal framework.

Prior to the enactment of the IIRIRA, the classification of returning lawful permanent residents was governed by § 101(a)(13) of the Immigration and Nationality Act of 1952 ("INA"), 66 Stat. 167 (codified as amended at 8 U.S.C. § 1101(a)(13) (2000)). See also Fleuti, 374 U.S. at 452. Section 101(a)(13) provided:

The term "entry" means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.

INA, § 101(a)(13) (emphasis added)). This version of § 101(a)(13) and the intent exception contained therein were enacted in response to the harsh results that attained from earlier restrictive interpretations of the term "entry." See Fleuti, 374 U.S. at 453; Landon v. Plasencia, 459 U.S. 21, 29 n.6 (1982). For example, in DiPasquale v. Karnuth, the INS sought to deport an alien on account of a departure and "entry" which occurred because the alien took an overnight train from Buffalo to Detroit, which passed through Canada. 158 F.2d 878, 878 (2d Cir. 1947). The court refused to deport the alien, and the judicial clarifications of the entry doctrine that developed over time became embedded in § 101(a)(13). Id. at 879; see also Delgadillo v. Carmichael, 332 U.S. 388, 390-91 (1947); Fleuti, 374 U.S. at 457-58.

There are a few notable features of § 101(a)(13) which are relevant to our analysis. The statute presumed that all aliens arriving in the United States were making an "entry," without regard to prior residence here. In order for a lawful permanent resident to retain that status upon re-entry, he was obliged to prove that he was entitled to the exception. The principal feature of the exception was intent: a returning lawful permanent resident had the burden of showing that "his departure... was not intended." INA, § 101(a)(13).

The issue before the Supreme Court in Fleuti was the meaning and scope of the phrase "not intended." Fleuti was a lawful permanent resident of the United States and a Swiss national. Fleuti, 374 U.S. at 450. Sometime in August 1956, he stepped across the border for a visit to Ensenada, Mexico that lasted only a few hours. Id. In subsequent deportation proceedings, the INS sought to deport Fleuti as an alien "afflicted with psychopathic personality," by reason of his homosexuality. Id. at 450-51 (internal quotation marks and citations omitted). Turning its attention to the statute, the Court held that if a departure from the United States is "innocent, casual, and brief, it is consistent with all the discernible signs of congressional purpose to hold that the 'departure... was not intended' within the meaning and ameliorative intent of the exception of [§] 101(a)(13)." Id. at 461. Therefore, under the prior statutory regime of § 101(a)(13) and Fleuti, a lawful permanent resident whose departure was "innocent, casual, and brief " was not making an "entry" for purposes of the immigration laws. In effect, a returning alien could retain his status as a lawful permanent resident of the United States under these circumstances.

Despite this lengthy evolution of statutory interpretation and over three decades of practice based on the Fleuti doctrine, § 101(a)(13) no longer governs the status of lawful permanent residents who depart and re-enter the country. On September 30, 1996, Congress enacted the IIRIRA, which made sweeping changes to the immigration laws. The provisions of the Act went into effect on April 1, 1997. See IIRIRA, Pub. L. No. 104-208, § 309(a), 110 Stat. 3009-546, 3009-625 (1996); see also I.N.S. v. St. Cyr, 533 U.S. 289, 315 (2001); Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 502 (Souter, J., dissenting ). In particular, § 301(a)(13) of the IIRIRA replaced § 101(a)(13) of the INA, and the governing statute bears little resemblance to its predecessor. In pertinent part, § 301(a) now provides:

(13)(A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,

(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

IIRIRA, § 301(a)(13) (codified at 8 U.S.C. § 1101(a)(13) (2000)).

The new statute differs from § 101(a)(13) of the INA in material respects. First, the doctrine of entry is replaced by the distinct concepts of "admission" and "admitted." IIRIRA, § 301(a)(13)(A). Second, the presumption of entry which was a central feature of the prior statute is now reversed in favor of the lawful permanent resident who "shall not be regarded as seeking an admission." IIRIRA, § 301 (a)(13)(C). Returning lawful permanent residents are thus presumptively entitled to retain that status upon re-entry. Third, the statute establishes six scenarios under which the returning resident would lose the benefit of that presumption: a lawful permanent resident "shall not be regarded as seeking an admission... unless " he falls into one of the six enumerated subsections. IIRIRA, § 301(a)(13) (C)(i)-(vi) (emphasis added). If a lawful permanent resident falls into one of the six subsections, the clear import of § 301(a)(13) is that he is stripped of his lawful permanent residence. That is, he becomes an alien seeking admission as if he were entering for the first time. Finally, § 301(a)(13) eliminates entirely the language relating to the intent of the alien's departure. To the extent that the "not intended" inquiry in § 101(a)(13) of the INA operated as a means of preserving one's lawful permanent resident status, no such statutory vehicle appears on the face of the new provision.

The remaining statutes relevant to this appeal relate to the detention of aliens, such as Tineo, who have lost their status as lawful permanent residents upon re-entry and are deemed to be seeking ...


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