PETITIONER’S OPENING BRIEF...TO COMPLETE BRIEFING AND PRESENTATION OF EVIDENCE ON QUESTIONS BEFORE...

C.A. No. 14-72325

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUZVIMINDA LOLA ERWIN

Petitioner

v.

ERIC H. HOLDER, Jr., Attorney General

Respondent

ON PETITION FOR REVIEW OF A DECISION AND ORDER

OF THE

BOARD OF IMMIGRATION APPEALS

Agency No. A200-160-164

PETITIONER’S OPENING BRIEF

Stephen C. Woodruff

Counsel to Appellant

Susupe Terraces #3

P. O. Box 500770

Saipan, MP 96950

Tel.: + 1 (670) 989-2797

Telefax: + 1 (808) 356-1349

Email: [email protected]

____________________________________________________________

RESTRICTED Case: 14-72325, 04/08/2015, ID: 9487522, DktEntry: 16, of 126

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................... iii

STATEMENT OF JURISDICTION ............................................................ 1

Jurisdiction of the Agency .................................................................. 1

Jurisdiction of the Court ..................................................................... 1

Timeliness of Petition ......................................................................... 2

STATEMENT OF THE ISSUES ................................................................. 2

STATEMENT OF THE CASE .................................................................... 7

Nature of the Case .............................................................................. 7

Course of Proceedings and Disposition Below .................................. 8

STATEMENT OF FACTS ......................................................................... 18

SUMMARY OF ARGUMENT .................................................................. 19

ARGUMENT .............................................................................................. 20

I. PETITIONER WAS DENIED DUE PROCESS OF LAW WHEN

THE BIA IGNORED THREE OF THE ARGUMENTS SHE

RAISED ON APPEAL ..................................................................................... 22

A. Petitioner has been deprived, without due process of law,

of her vested right to live and work in the CNMI indefinitely

as the spouse of a citizen of the Federated States of Micronesia ....... 23

B. Petitioner was denied due process of law when she was

hauled into Immigration Court on an inexcusably factually

inaccurate boilerplate Notice to Appear .............................................. 27

C. Petitioner was denied due process of law when wrongful denial

of her application for an immigration benefit specially tailored

to deal with the challenges of transition from an immigration


ii

regime governed by CNMI law to integration into the

Federal system was used to initiate and prosecute removal

proceedings against her ......................................................................... 31

II. PETITIONER’S LAWFUL ADMISSION BY CNMI IMMIGRATION

OFFICERS ACTING PURSANT TO A CONGRESSIONAL

GRANT OF AUTHORITY FORECLOSES REMOVAL ON

INADMISSABILITY GROUNDS .................................................................... 32

A. The relationship between the CNMI and the United States .............. 33

B. The immigration power ......................................................................... 34

C. Petitioner should be considered admitted as a matter of law ............ 36

D. Petitioner’s inspection and authorization for entry

by CNMI immigration officers constitutes a lawful

admission to the United States .............................................................. 37

E. Petitioner’s entry to the United States was procedurally

regular in any event ............................................................................... 43

III. PETITIONER CANNOT BE REMOVABLE AS AN INTENDING

IMMIGRANT WITH OUT REQUIRED DOCUMENTS ABSENT

AN INDIVIDUALIZED PERSONAL CHOICE TO ENTER OR

SEEK ENTRY TO THE UNITED STATES .................................................. 44

A. “Application for admission” is a defined term in the INA ................. 46

B. Deeming Ms. Erwin an “applicant for admission”

makes no difference ............................................................................... 48

C. Use of 8 U.S.C. § 1182(a)(7)(A)(i)(I) to remove Petitioner

flies in the face of Congressional purpose and intent ......................... 51

IV. EXERCISE OF PAROLE AUTHORITY BY IMMIGRATION

JUDGES AND THE BOARD OF IMMIGRATION APPEALS

IS NECESSARY TO ACCOMPLISHMENT OF THE TRANSITION

TO FEDERAL IMMIGRATION CONTROL IN THE CNMI

CONSISTENT WITH EXPRESSLY STATED CONGRESSIONAL

MANDATES ...................................................................................................... 55

V. THE IMMIGRATION JUDGE ABUSED HIS DISCRETION

IN DENYING, DESPITE COUNSEL’S SUBSTANTIAL SHOWING

OF GOOD CAUSE, A SHORT CONTINANCE FOR PETITIONER

TO COMPLETE BRIEFING AND PRESENTATION OF EVIDENCE

ON QUESTIONS BEFORE THE IMMIGRATION COURT AND

THUS DENIED PETITIONER DUE PROCESS OF LAW ......................... 59


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VI. THE BIA’s SUMMARY DISPOSITION OF PETITIONER ERWIN’s

APPEAL VIOLATED DUE PROCESS AND CANNOT STAND ............... 59

CONCLUSION ........................................................................................... 60

STATEMENT OF RELATED CASES ...................................................... 62


iv

TABLE OF AUTHORITIES

Page(s)

U.S SUPREME COURT CASES

Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492 (2012) ..................................... 34

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............................................................ 34

Head Money Cases, 112 U.S. 580 (1884) .........................................................................35

INS v. Cardoza-Fonseca, 480 U.S. 421,

107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987) ................................................................... 42

Landgraf v. USI Film Products, 511 U.S. 244 (1994) ..................................................... 26

Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L. Ed. 2d 478 (1976) ......................... 22

Nishimura Ekiu v. United States, 142 U.S. 651, (1892) ............................................ 34, 35

Passenger Cases, 48 U.S. 283 (1849) .............................................................................. 35

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) .................................. 34

Skidmore v. Swift & Co., 323 U.S. 134 (1944) .................................................................. 7

St. Louis, I.M. & S. Ry. v. United States, 251 U.S. 198,

40 S. Ct. 120, 64 L. Ed. 225 (1920) ............................................................................ 38

United States ex rel. Claussen v. Day, 279 U.S. 398,

49 S. Ct. 354, 73 L. Ed. 758 (1929) ............................................................................ 47

Vartelas v. Holder, ___ U.S. ___, 132 S. Ct. 1479 (2012) .............................................. 26

Wong Wing v. United States, 163 U.S. 228,

16 S. Ct. 977, 41 L. Ed. 140, 143 (1896) .................................................................... 22

Wong Yang Sung v. McGrath, 339 U.S. 33,

70 S. Ct. 445, 94 L .Ed. 616, 627-29 (1950) ............................................................... 22

OTHER FEDERAL COURT CASES

Andrieu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) .............................................. 48, 49, 51


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Page(s)

Cardenas-Delgado v. Holder, 720 F.3d 1111 (9th Cir. 2013) ......................................... 26

Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004) ............................................................. 60

Chew Heong v. United States, 112 U. S. 536 (1884) ....................................................... 27

Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012) ............................................................... 51

Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) ......................................... 59

Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) .................................... 25

Hillblom v. United States, 896 F.2d 426 (9th Cir.1990) ...................................... 24, 32, 38

Lanier v. U.S. Att’y Gen., 631 F.3d 1363 (11th Cir. 2011) .............................................. 40

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) ............................................................. 59

Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011) ............................................ 7, 47

Montes-Lopez v. Gonzales, 486 F.3d 1163 (9th Cir. 2007) ............................................. 59

Northern Mariana Islands v. United States (I),

670 F.Supp.2d 65 (D.D.C. 2009) ................................................................................ 52

Northern Mariana Islands v. United States (II),

686 F.Supp.2d 7 (D.D.C. 2009) ............................................................................ 52, 54

Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th

Cir. 2007) ........................................ 56

Owner-Operators Independent Drivers Ass'n of America, Inc. v. Skinner,

931 F.2d 582 (9th

Cir. 1991) ....................................................................................... 38

Padash v. INS, 358 F.3d 1161 (9th

Cir. 2004) .................................................................. 51

Sabangan v. Powell, 375 F.3d 818 (9th

Cir. 2004) ........................................................... 38

United States v. Li, 643 F.3d 1183 (9th Cir. 2011) .......................................................... 47

United States ex rel. Richards v. Guerrero, 4 F.3d 749 (9th Cir. 1993) .............. 24, 32, 38

United States v. Maria-Gonzalez, 268 F.3d 664 (9th Cir. 2001) ..................................... 45


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Page(s)

AGENCY CASES

Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010) .................................... 56, 57

Matter of Castellon, 17 I. & N. Dec. 616 (BIA 1981) ..................................................... 56

Matter of Conceiro, 14 I&N Dec. 278 (BIA 1973) ......................................................... 56

Matter of Lepofsky, 14 I. & N. Dec. 718 (BIA 1974) ...................................................... 56

Matter of Matelot, 18 I. & N. Dec. 334 (BIA 1982) ........................................................ 56

Matter of Niayesh, 17 I. & N. Dec. 231 (BIA 1980) ....................................................... 56

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) ............................................ 30, 43, 50

Matter of Valdez, 25 I&N Dec. 824 (BIA 2012) ................................................... 3, 17, 57

Matter of United Airlines Flight UA802,

22 I. & N. Dec. 777 (BIA 1999) ................................................................................. 56

U.S. CONSTITUTION

Fifth Amendment ......................................................................................................... 7, 22

COMMONWEALTH COVENANT

Covenant to Establish a Commonwealth of the Northern Mariana

Islands in Political Union with the United States of America, 48 U.S.C. § 1801 note

Section 101....................................................................................................... passim

Section 102 .............................................................................................................. 43

Section 103 .............................................................................................................. 24

Section 104 .............................................................................................................. 34

Section 105 .............................................................................................................. 37


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Page(s)

Section 501 .............................................................................................................. 38

Section 503 ...................................................................................................... passim

Section 506 ...................................................................................................... passim

Section 1003 ............................................................................................................ 33

U.S. STATUTES AND PUBLIC LAWS

8 U.S.C. § 1101(a)(4) ....................................................................................................... 47

8 U.S.C. § 1101(a)(13) ............................................................................................. passim

8 U.S.C. § 1101(a)(15) ..................................................................................................... 44

8 U.S.C. § 1101(a)(15)(L) ................................................................................................ 49

8 U.S.C. § 1101(a)(15)(R) ............................................................................................... 49

8 U.S.C. § 1101(a)(18) ............................................................................................... 36, 41

8 U.S.C. § 1101(a)(27) ..................................................................................................... 49

8 U.S.C. § 1101(a)(38) ............................................................................................. passim

8 U.S.C. § 1181 ................................................................................................................ 47

8 U.S.C. § 1182(a) ............................................................................................................. 4

8 U.S.C. § 1182(a)(2)(A)(ii) ............................................................................................ 49

8 U.S.C. § 1182(a)(6)(A)(i) ............................................................................................... 8

8 U.S.C. § 1182(a)(7)(A)(i)(I) ................................................................................. passim

8 U.S.C. § 1182(d)(5) .............................................................................................. passim

8 U.S.C. § 1184 ................................................................................................................ 47

8 U.S.C. § 1225 .......................................................................................................... 48, 49


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Page(s)

8 U.S.C. § 1226(a)(2)(B) ........................................................................................... 56, 57

8 U.S.C. § 1227 ............................................................................................................ 4, 30

8 U.S.C. § 1229 .................................................................................................................. 1

8 U.S.C. § 1229a ........................................................................................................ 29, 30

8 U.S.C. § 1252 .............................................................................................................. 1, 2

8 U.S.C. § 1255(a) ........................................................................................................... 57

28 U.S.C. § 1294 ................................................................................................................ 1

28 U.S.C. § 2342 ................................................................................................................ 1

48 U.S.C. § 1801 .................................................................................................... 4, 24, 32

48 U.S.C. § 1806 .............................................................................................. 2, 43, 52, 53

48 U.S.C. § 1821 ................................................................................................................ 1

Consolidated Natural Resources Act of 2008 (CNRA),

Pub. L. 110-229, 122 Stat. 754 .......................................................................... passim

Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 ................................. 55

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) .................... 49

U.S. RULES & POLICY DOCUMENTS

51 Fed. Reg. 40399 ................................................................................................ 4, 33, 37

76 Fed. Reg. 55502 .......................................................................................................... 53

8 C.F.R. § 212.5(a) ........................................................................................................... 57

8 C.F.R. § 214.2(w) ......................................................................................................... 53

8 C.F.R. Part 1003 ........................................................................................................... 41

8 C.F.R. § 1003.1 ............................................................................................................... 1


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Page(s)

8 C.F.R. § 1003.15(b) ................................................................................................ 27, 28

LEGISLATIVE HISTORY

S. Rep. 110-324, 2008 WL 1740677 ......................................................................... 36, 54

H. Rep. 110-469, 2007 WL 4291940 ......................................................................... 35, 54

S. 744, 113th

Cong., 1st Sess. ............................................................................................ 54

SECONDARY AUTHORITIES

Daniel Cicchini & Joseph Hassell, The Continuing Struggle To Define

“Admission” and “Admitted” in the Immigration and Nationality Act,

IMMIGRATION LAW ADVISOR, Vol. 6, No. 6 (June 2012) ................................................ 50

Kurzban & Chaviano, Immigration Law:

1997 Survey of Florida Law, 22 NOVA L. REV. 149 (1997) ....................................... 50

Lizabeth A. McKibben, The Political Relationship Between the United States

and Pacific Islands Entities: The Path to Self-Government in the Northern

Mariana Islands, Palau, and Guam, 31 HARV. INT'L L.J. 257, 272 (1990) .................... 33


STATEMENT OF JURISDICTION

Jurisdiction of the Agency. The immigration judge had jurisdiction to

determine removability of Petitioner pursuant to 8 U.S.C. § 1229a(a)(1)

(“An immigration judge shall conduct proceedings for deciding the

inadmissibility or deportability of an alien.”). The Board of Immigration

Appeals (BIA) had jurisdiction of Petitioner’s appeal from the order of the

Immigration Judge pursuant to 8 C.F.R. § 1003.1(b)(3) (“Appeals may be

filed with the Board of Immigration Appeals from . . . [d]ecisions of

Immigration Judges in removal proceedings[.]”).

Jurisdiction of this Court. This Court has jurisdiction in this matter

pursuant to 8 U.S.C. § 1252(a) (“Judicial review of a final order of removal

. . . is governed only by chapter 158 of Title 28[.]”) and 28 U.S.C. § 2342 (a

section of chapter 158 of Title 28, granting the courts of appeal jurisdiction

to review administrative orders). Venue is proper in this Circuit pursuant to

8 U.S.C. § 1252(b)(2) (“The petition for review shall be filed with the court

of appeals for the judicial circuit in which the immigration judge completed

the proceedings.”); 48 U.S.C. § 1821(a) (placing the Northern Mariana

Islands in the same judicial circuit as Guam); and 28 U.S.C. § 1294 (placing

Guam in the Ninth Circuit).


2

Timeliness of Petition. The Petition for Judicial Review was filed on

July 28, 2014, within 30 days of the July 1, 2014, final order of removal, see

Certified Administrative Record (“CAR”) at 2 (Dkt# 6), and thus was timely

pursuant to 8 U.S.C. § 1252(b)(1).

DETENTION STATUS

Petitioner is NOT DETAINED. Petitioner has NOT moved the Board

of Immigration Appeals to reopen or applied to the district director for an

adjustment of status.

STATEMENT OF ISSUES

This case presents several issues not previously decided by the Court

of Appeals in the context of the extension of the territorial application of

U.S. immigration law to the Commonwealth of the Northern Mariana

Islands (“CNMI”) and the administration and enforcement of that law by the

United States during the transition period prescribed by 48 U.S.C. §

1806(a)(1)-(3). It also presents questions of general applicability pertaining

to the proper construction, interpretation, and application of specific

provisions of the Immigration and Nationality Act (“INA”), under

conditions that may be unique to the CNMI at the present time, and general

principles of due process of law and fidelity to circuit precedent.


3

The Issues:

I.

Whether the BIA erred in relying on Matter of Valdez, 24 I&N

Dec. 824, 826 n.1, (BIA 2012) and 8 C.F.R. § 212.5(a) for the

proposition that “[P]arole authority under section 212(d)(5)(A) is

delegated solely to the Secretary of Homeland Security and is not

within the jurisdiction of Immigration Judges or this Board,”

notwithstanding the special directives made by Congress in Title VII,

Subtitle A of Public Law 110-229 for the transition to federal

immigration control in the CNMI, the complete absence of any

reasoning or analysis in Valdez to support that conclusion, and lack of

any statutory or regulatory text pointing to that result.

II.

Whether in fact immigration judges and the Board of

Immigration Appeals do have jurisdiction to grant relief in the form of

parole-in-place pursuant to 8 U.S.C. § 1182(d)(5), particularly in the

context of the transition to Federal immigration control in the CNMI.

III.

Whether Petitioner must be deemed admitted and hence

removable, if at all, only on grounds of deportability under 8 U.S.C. §


4

8 U.S.C. § 1227, and not on 8 U.S.C. § 1182(a) grounds of

inadmissibility, given that Petitioner was lawfully present in the

CNMI on November 28, 2009,1 pursuant to the immigration laws of

the Commonwealth, having been duly authorized entry to the CNMI

following inspection by a CNMI immigration officer at a time when

the CNMI was in “political union with and under the s sovereignty of

the United States”2 and immigration authority was expressly delegated

to the CNMI pursuant to Sections 503(a) and 506 of the Covenant to

Establish a Commonwealth of the Northern Mariana Islands in

Political Union with the United States of America (“Commonwealth

Covenant”), see 48 U.S.C. § 1801 note.

IV.

Whether the BIA erred in finding Petitioner removable under

8 U.S.C. § 1182(a)(7)(A)(i)(I) as an intending immigrant without

required documents despite the facts that Petitioner was not at the

1 The date upon which immigration authority in the CNMI shifted

from CNMI to Federal authority pursuant to Subtitle A of Title VII of Pub.

L. 110-229.

2 Covenant to Establish a Commonwealth of the Northern Mariana

Islands in Political Union with the United States of America

(“Commonwealth Covenant”) § 101, 48 U.S.C. § 1801 note; Presidential

Proclamation 5564, 51 Fed Reg. 40399.


5

border seeking entry to the United States but instead was in, and long

had lawfully been in, the United States and the CNMI, and the only

application she had made was for parole-in-place pursuant to USCIS

policy encouraging such applications by spouses of citizens of freely

associated states as part of federal policy initiatives for an orderly and

non-disruptive transition to Federal immigration control in the CNMI.

V.

Whether the BIA erred by ignoring three of the issues Petitioner

raised in her appeal to the Board.

VI.

Whether Petitioner was deprived of liberty and property

without due process of law by the refusal of DHS, the Immigration

Judge, and the BIA to recognize her right to live and work in the

CNMI indefinitely as the spouse of a citizen of the Federated States of

Micronesia, which vested under Commonwealth law prior to the

extension of the immigration laws of the United States to the CNMI.

VII.

Whether Petitioner’s due process rights were violated by

hauling her into Immigration Court on an inexcusably factually

inaccurate Notice to Appear.


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VIII.

Whether Petitioner was denied due process of law when

wrongful denial of her application for an immigration benefit

specially tailored to deal with the challenges of transition from an

immigration regime governed by CNMI law to integration into the

Federal system was used to initiate and prosecute removal

proceedings against her.

IX.

Whether the Immigration Judge abused his discretion and

denied Petitioner due process rights when he refused to grant

petitioner’s attorney’s request for a continuance to complete briefing

of relevant issues despite a strong showing of good cause.

X.

Whether the BIA erred and violated Petitioner’s due process

rights by deciding his case by a single Board member despite

substantial factual and legal questions, a complex factual scenario,

and operative facts and legal issues potentially applicable to numerous

other aliens given the unique and special circumstances of the

transition to Federal immigration control in the CNMI.


7

Standard of Review:

The issues presented are questions of law, principally of statutory

construction. Questions of law are reviewed de novo, “except to the extent

that deference is owed to [the BIA’s] interpretation of the governing statutes

and regulations.” Lezama-Garcia v. Holder, 666 F.3d 518, 524 (9th Cir.

2011). “Where—as here—a BIA decision interpreting a statute is

unpublished and issued by a single member of the BIA, it does not carry the

force of law, and is accorded only Skidmore deference proportional to its

thoroughness, reasoning, consistency, and ability to persuade.” Id. at 524-25

(citation and internal punctuation omitted) (citing Skidmore v. Swift & Co.,

323 U.S. 134 (1944)). Where the decision is “conclusory and lacks any

meaningful analysis,” it is therefore afforded no deference at all. Id. at 532

n. 14.

STATEMENT OF THE CASE

Nature of the Case. This is a petition for review of an administrative

order finding Petitioner Erwin removable from the United States –

specifically, from the Commonwealth of the Northern Mariana Islands – to

her home country of the Republic of the Philippines and refusing to

recognize her entitlement under the Fifth Amendment to the Constitution of

the United States of America to recognition of her status as spouse of a


8

citizen of the Federated States of Micronesia and thus to 8 U.S.C. §

1182(d)(5) parole under USCIS policy, which was arbitrarily and

capriciously denied to her by the director of the USCIS Guam Field Office.

Course of Proceedings and Disposition Below. Ms. Erwin was served

with a boilerplate Notice to Appear (NTA) on or about June 15, 2012,

charging her with being removable from the United States based on Sections

212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality

Act (INA) (8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I)). See CAR

106-08.

Ms. Erwin made her first appearance in the Saipan Immigration Court

at a master calendar hearing on July 17, 2012. CAR 59-65. Ms. Erwin

requested time to locate an attorney, which request was granted. CAR 63-

65. Also on July 17, 2012, DHS filed evidence consisting of a Form I-213.

CAR 101-03.

The I-213 acknowledges that Ms. Erwin had valid CNMI-derivative

status entitling her to remain in the United States through November 27,

2011. CAR 103. The I-213 further notes that she made a timely request for

parole in place on October 25, 2011, more than a month prior to expiration


9

of her CNMI-derivative status. Id. It also states that Ms. Erwin’s parole

request was denied on March 23, 2013 (five months later). Id.

Since the I-213 indicates Ms. Erwin was interviewed by ICE officers

on June 15, 2012, id., it appears the USCIS Guam Field Office referred

Ms. Erwin to ICE as a candidate for removal after denying her request for

parole.

Ms. Erwin next appeared at a master calendar hearing on July 31,

2012, with counsel. CAR 66-69. The matter was reset due to unavailability

of a Tagalog-English interpreter. Id. at 68. On August 7, 2012, Ms. Erwin

was back in Immigration Court. CAR 70-78. Pleadings were taken, with

Ms. Erwin contesting both charges of removability. Id. at 73. Counsel then

explained Ms. Erwin’s situation to the Immigration Judge. He expressed

concern about the manner in which Ms. Erwin had been hauled into

immigration court after making an application to the USCIS Guam Field

Office for parole-in-place under USCIS policy encouraging such

applications by spouses of nationals of Freely Associated States (“FAS”) as

part of an orderly transition to Federal immigration control in the CNMI. Id.

at 74.

Counsel noted that Ms. Erwin’s husband was in the courtroom, that

her husband had been in the courtroom at each of Ms. Erwin’s appearances,


10

and that her husband had accompanied Ms. Erwin to each and every meeting

she had with counsel. CAR 74. Counsel stated that based on his

investigation and his observations and experience there was no doubt in his

mind about the bona fides of the marriage. Id. Counsel asked that DHS

counsel evaluate the case for possible exercise of prosecutorial discretion in

Ms. Erwin’s favor. He also indicated he was considering a motion to

terminate on grounds of violation of due process of law in the apparent use

of Ms. Erwin’s parole request as a means of selection as a candidate for

removal. Id.

DHS counsel responded that placement in removal was proper

because Ms. Erwin’s parole was denied and she did not have any

applications pending. CAR 75. DHS counsel did not respond directly to the

concerns raised by Ms. Erwin’s attorney about the manner of Ms. Erwin’s

selection for removal and the need for an appropriate exercise of

prosecutorial discretion. Id.

The immigration judge then asked if either party believed “that this

Court has jurisdiction over 212(d) (5) parole in place?” Id. Counsel for Ms.

Erwin replied that, in his view, “the law is ambiguous on that point.” Id.

Counsel then proceeded to explicate his view of the question, CAR 75-76,

concluding:


11

[A]t least in the context of the transition [to] Federal

Immigration Law in the CNMI [as] contemplated by the CNRA

that this Court does have authority to entertain and grant a

parole under pursuant to Section 212(d)(5).

CAR 76. DHS counsel rejected this position and suggested that counsel

“raise these issues with the Ninth Circuit if he sees appropriate.” Id.

The immigration judge then asked if DHS had evaluated the case for

prosecutorial discretion. Id. DHS counsel responded:

[I]t has been reviewed for prosecutorial discretion. If the

respondent's counsel has additional information that the

Department should review, we'd be happy to do so. But based

on the information before us, presently, it does not qualify for

prosecutorial discretion.

CAR 76. DHS counsel did not explain how it was that Ms. Erwin’s case

failed to “qualify” for prosecutorial discretion under the factors defined in

the “Morton Memo.”3

The Court then continued the hearing to allow the parties an

opportunity for briefing, stating, “The Court will set this matter giving you a

little over a month to brief these issues and submit those issues to the Court.”

CAR 77. The immigration judge reset the case for September 11, 2012, and

set a filing deadline for any briefs for September 7, 2012. Id.

3 Available at http://www.ice.gov/doclib/secure-communities/pdf/

prosecutorial-discretion-memo.pdf.


12

At the master calendar hearing on September 11, 2012, petitioner’s

counsel informed the immigration judge that he had failed to meet the

September 7, 2011 filing deadline because of a number of factors:

One is that the respondent provided me with over 100 pages of

documents that relate to this issue and we had to go through

those documents. And in addition, the legal issue is essentially

one of first impression and fairly complex for me to brief

properly. And third, we've also, during this time period we had

to brief this, we've received a number of other cases, where I

represent the client, we've received a number of denials from

USCIS, which have a very short appeal deadline, that I had to

deal with at that time. And also another matter in the past week

that required a lot of time to be in Federal Court. And for those

reasons, I wasn't able to complete the submissions that I had

intended to complete and I would like to request a continuance

of this hearing of one week, in fact is sufficient, and I would

like an extension of the filing deadline up until this Friday.

CAR 83. DHS opposed the request for a continuance, arguing that it should

have been submitted in writing. CAR 83-84. Petitioner’s counsel

responded:

Ordinarily, Your Honor, I would agree with what Ms. Latey

just said, however, I was trying to meet the deadline. The

deadline was on September 7 but the Federal Court matter that I

had to deal with ended up consuming much more time than was

expected last week, and that was the reason why I, you know, I

thought I could meet the deadline but I ran up against it and so I

did not prepare a written submission. I was just in Federal

Court yesterday, almost all day in the same ma[tt]`er, which has

been placed on an expedited track and involves some very large

and complex issues. I can speak in more detail with regard to

that, if necessary, but that was just the situation and that is why

I did not present a written, formal request. Ms. Latey's point

would otherwise be very well taken.


13

CAR 84. Immediately at the conclusion of this statement, the immigration

judge stated, “Counsel, your request for continuance is denied.” Id.

However, he did allow argument on points of law, and Petitioner’s counsel

argued as follows:

Section 212(d) (5) states that [ – ] the language of that

provision of the statute states that the Attorney General shall

grant humanitarian and public interest parole in section 212(d)

(5). There are two provisions in 8 C.F.R. that relate to

evaluation of that type of relief. One of them is actually 212(c)

(5) relief, if I remember correctly, and the other one is

212([d]) (5). And those regulations delegate authority to

certain persons within the Department of Homeland Security

who can grant that relief. There is no regulation that I have

been able to find that states that the Immigration Judges do not

have that authority or that the authority is exclusively to be

exercised by [an] officer of the Department of Homeland

Security. As we all know the [i]mmigration functions were

transferred to the Department of Homeland Security f[ro]m

the former Immigration and Naturalization [S]ervice, which

was a component of the Department of Justice, as is the

current Executive Office for Immigration Review. I have not

been able to find any regulation on point that indicates that

Immigration Judges would not have the authority granted by

statute under section 212(d) (5), which specifically says that

the Attorney General has that authority. I have not been able

to identify [any] statutory provision that states that the

Attorney General has been divested of that authority. So

apparently, the Attorney General himself could exercise that

authority. And given that the Executive Office for

Immigration Appeals and Immigration Judges are within the

Department of Justice and under the Attorney General of the

United States and I find nothing that deprives Immigration

Judges of the jurisdiction to grant relief as articulated in

Section 212(d) (5)[,] I believe that Immigration Judges do, in

fact, have that authority and in the [context] of the transition to

U.S. Immigration in the Commonwealth of the Northern


14

Marianas Islands and in the transitional policies that were

adopted by USCIS and the goals articulated by Congress in

Title 7 of the CNRA, I think it's incumbent upon the

Immigration Judges to exercise that kind of authority and that

is necessary to a smooth and orderly transition as intended by

[Congress in enacting Title V of the CNRA].

CAR 84-86.

The Immigration Judge then proceeded to sustain the contested factual

allegations of the NTA, and ruled that “respondent is an immigrant, who at

the time of application for admission, is not in possession of a valid,

unexpired Immigrant visa, re-entry permit, border crossing card, or other

valid entry document required by the Act. And a valid, unexpired passport

or other suitable travel document or document of identity and nationality as

required under the regulations issued by the Attorney General under Section

211(a) of the Act.” CAR 87. Neither the Immigration Judge nor DHS

identified when, where, or how petitioner made an “application for

admission.” Moreover, the Immigration Judge’s ruling that petitioner lacked

a valid, unexpired passport is contradicted by DHS Exhibit “2” which

explicitly notes that ERO/ICE had taken possession of petitioner’s passport,

which was valid until September 17, 2014. CAR 94.

Petitioner timely appealed the decision of the Immigration Judge.

CAR 34-42. Petitioner filed a brief with the Board of Immigration Appeals


15

on June 3, 2013. CAR 6-17. Annexed to the brief was a copy of USCIS

Questions and Answers concerning policy for exercise of parole authority.

CAR 12-16. Petitioner’s brief to the BIA made seven points:

1. That she was not properly amenable to removal on

inadmissibility grounds (INA § 212) in view of her lawful presence in

the CNMI on November 28, 2009, based on her prior procedurally

regular admission to the CNMI by CNMI immigration officers. CAR

6-7.

2. That INA § 212(a)(7)(A)(i)(I) is not properly applied to

an alien who never made an individualized personal choice to enter or

seek entry to the United States. CAR 7.

3. That she possessed a vested right to live and work in the

CNMI as the spouse of a citizen of the Federated States of Micronesia

of which the DHS denial of parole and the Immigration Judge’s order

of removal were divesting her without due process of law and with

impermissible retroactive effect. CAR 8-9.

4. The Notice to Appear (“NTA”) was fatally deficient in

that it carelessly and recklessly contained false and inaccurate

allegations that would have been avoided with a mere modicum of

due diligence. CAR 9.


16

5. That the apparent means by which she came to be placed

in removal proceedings violated due process of law by undermining

the Congressional purposes behind INA section 212(d)(5) and the

CNMI transition program. CAR 9-10.

6. That the immigration judge erroneously refused to

consider her for discretionary relief under INA § 212(d)(5). CAR 10-

11.

7. The immigration judge’s refusal to allow a short

continuance despite counsel’s extensive showing of good cause for

missing the filing deadline was an abuse of discretion denying her due

process of law. CAR 11.

On July 1, 2014, a single member of the BIA dismissed the appeal.

CAR 1-3. The single Board member first rejected Petitioner’s contention

that the immigration judge could, and should have, exercised discretion

under INA § 212(d)(5) to determine whether petitioner should be granted

parole-in-place in accordance with publicly-announced DHS policy. He did

so with the bald, conclusory statement, “[P]arole authority under section

212(d)(5) of the Act is delegated solely to the Secretary of Homeland

Security and is not within the jurisdiction of Immigration Judges or this


17

Board.” CAR 2 (citing Matter of Valdez, 25 I&N Dec. 824, 826 n.1, and

8 C.F.R. 212.5(a)).

The single Board member disposed of Petitioner’s arguments that she

is legally entitled to be treated as “admitted” to the United States, and that

INA § 212(a)(7)(A)(i)(I) cannot properly be applied to her, in equally

summary fashion. Despite substantial differences in the legal principles

underlying and determinative of these questions, the single Board member

disposed of both with a single naked edict: “Although her situation is

unique, the respondent was never admitted to the United States within the

meaning of section 101(a)(13)(A) of the Act, and does not have an

immigrant visa or other valid entry document authorizing her admission to

the United States. She is, thus, inadmissible as charged under section

212(a)(7)(A)(i)(I) of the Act.” CAR 3.

The single Board member gave barely more deliberation to whether it

was error for the immigration judge to deny the requested continuance.

Reciting the authority of immigration judges to set filing deadlines, and the

broad discretion IJs possess in granting or denying continuances, he

concluded that there was no denial of due process. This was based in part on

a conclusion that his decision on the unavailability of INA § 212(d)(5) relief

foreclosed any possible prejudice from the denial of the requested


18

continuance. No mention was made of whether the immigration judge may

have abused his discretion in denying the requested continuance. Id. The

appeal was dismissed, and this petition followed.

STATEMENT OF FACTS

Petitioner Erwin had valid immigration status through November 27,

2011, as acknowledged by DHS. CAR 103. She held an “Immediate

Relative Permit.” Id. More than a month prior to expiration of her status,

she applied for parole-in-place pursuant to announced USCIS policy. Id.

That application was denied five months later on March 23, 2012. Id.

During the removal proceedings, DHS supplied no information on the

putative grounds for denial of Ms. Erwin’s parole-in-place request, despite

its obvious pertinence to issues she raised. Instead, the I-213 entered into

evidence referenced the “denial letter” as being “attached to A-file.” Id.

Petitioner Erwin is married to a citizen of the Federated States of

Micronesia, who was present at each of the Immigration Court hearings in

which she appeared. CAR 74. One of the first DHS initiatives upon

implementation of the transition to Federal immigration control in the

CNMI, was a series of Questions and Answers issued November 30, 2009,

seting forth DHS policies designed to address the special needs of persons

like Petitioner Erwin and her husband in the transitional period. See CAR


19

12-16. As the “legally recognized spouse” of a citizen of a “Freely

Associated State,” Petitioner Erwin clearly qualified for this parole program.

See CAR 12. During the course of the removal proceedings, DHS did not

indentify any “inadmissibility factors that may warrant an unfavorable

exercise of discretion” in Petitioner Erwin’s case. See CAR 13.

Less than two months after Petitioner Erwin’s parole application was

denied, ICE/ERO called her in for an encounter on June 15, 2012. CAR

103. Petitioner was served with an NTA the same day. CAR 107, 109, 110.

The NTA had been prepared the previous day. CAR 106.

SUMMARY OF ARGUMENT

The Board of Immigration Appeals (“BIA”) denied Petitioner’s right

to due process of law when it ignored entirely three of the issues Petitioner

raised on appeal: (1) Petitioner’s claim that she possessed a vested right to

live and work in the CNMI as the spouse of a citizen of the Federated States

of Micronesia that the DHS denial of parole and the order of removal were

divesting without due process of law and with impermissible retroactive

effect; (2) Petitioner’s claim that NTA was offensive to due process of law

and thus fatally deficient in that it carelessly and recklessly contained false

and inaccurate allegations that would have been avoided with a mere

modicum of due diligence; and (3) Petitioner’s claim that the apparent


20

means by which she came to be placed in removal proceedings violated due

process of law by undermining the Congressional purposes behind INA

section 212(d)(5) and the CNMI transition program.

Petitioner was not properly amenable to removal on inadmissibility

grounds (INA § 212) in view of her lawful presence in the CNMI on

November 28, 2009, based on her prior procedurally regular admission to

the CNMI by CNMI immigration officers. Additionally, 8 U.S.C. §

1182(a)(7)(A)(i)(I) is not properly applied to an alien who never made an

individualized personal choice to enter or seek entry to the United States.

The Immigration Judge and the BIA also erred in ruling that they

lacked jurisdiction to grant Petitioner relief in the form of parole-in-place

pursuant to 8 U.S.C. § 1182(d)(5). Finally, summary dismissal of

Petitioner’s appeal by a single member of the BIA was inappropriate and

requires, as a minimum, that the BIA decision be vacated and the matter

remanded for further consideration by a full panel.

ARGUMENT

On November 28, 2009, the U.S. Department of Homeland Security

assumed control over immigration in the Commonwealth of the Northern

Mariana Islands. In providing for a transitional program, Congress sought


21

to protect persons such as Petitioner herein, but the legal, administrative, and

bureaucratic environment is incredibly complex. The Citizenship and

Immigration Services component of the Department of Homeland Security

initially established and implemented proactive policies to meet the special

challenges of the transition and the needs of particular populations of aliens

within the CNMI; however, the various components of the Department of

Homeland Security are poorly coordinated, often lacking unified policy

direction, and have operations driven by differing incentives and

organizational philosophies. In the case of the Immigration and Customs

Enforcement and USCIS components of DHS, with closely related

responsibilities and overlapping powers, sound policies implemented by

USCIS are easily frustrated or undermined, either from within or without, by

the introduction of ICE/ERO into the calculus, compounded by insufficient

and inadequate internal due process safeguards. Luzviminda Lola Erwin is a

victim of this regrettable situation and now humbly petitions the judges of

this circuit court of appeals for justice and restoration of the rule of law for

herself and all other persons affected by the transition to U.S. immigration

control in the CNMI.


22

I. PETITIONER WAS DENIED DUE PROCESS OF LAW WHEN THE BIA

IGNORED THREE OF THE ARGUMENTS SHE RAISED ON APPEAL

The Fifth Amendment to the Constitution of the United States of

America provides in relevant part:

No person shall be . . . deprived of life, liberty, or property,

without due process of law . . . .

U.S. CONST. amd.V. It is well established that the Fifth Amendment applies

to all aliens within the jurisdiction of the United States, even those “whose

presence in this country is unlawful, involuntary, or transitory.” Mathews v.

Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L. Ed. 2d 478 (1976)(citing

Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51, 70 S. Ct. 445, 53-455, 94

L .Ed. 616, 627-29 (1950) and Wong Wing v. United States, 163 U.S. 228,

238, 16 S. Ct. 977, 981, 41 L. Ed. 140, 143 (1896)).

A single member of the Board of Immigration Appeals decided

Petitioner’s appeal. In a cursory two-page decision, the single member

disposed of four of petitioner’s issues in a mostly bald, conclusory fashion,

with little reasoning. Those issues are addressed infra. But three of

petitioner’s issues were not addressed at all. Those are presented here.


23

A. Petitioner has been deprived, without due process of law, of

her vested right to live and work in the CNMI indefinitely

as the spouse of a citizen of the Federated States of

Micronesia

It is undisputed that Petitioner Erwin is the spouse of a citizen of the

Federated States of Micronesia. It is undisputed that prior to the transition to

Federal immigration control, Petitioner Erwin was lawfully admitted to the

CNMI in “immediate relative” status based on her legally recognized

marriage to her husband, and that she was lawfully present in the CNMI on

November 28, 2009, pursuant to that status, and that she continued to be

lawfully present in the United States until November 27, 2011, pursuant to

that status and 48 U.S.C. § 1806(e)(1).

It further is indisputable that the United States Immigration and

Citizenship Service, a component of the Department of Homeland Security,

on or before November 30, 2009, announced and implemented policy for

exercise of its 8 U.S.C. § 1182(d)(5) authority for the benefit of persons such

as Petitioner Erwin and her husband. It is indisputable that petitioner

qualified under the policy. Moreover, there is no evidence in the record of

any reason for petitioner to be denied this benefit. The sole circumstance

stated in the policy where a person such as petitioner, otherwise qualified

under the policy, would be denied is where “inadmissibility factors that may

warrant an unfavorable exercise of discretion” are present. No evidence of


24

any such disqualifying factor “that may warrant an unfavorable exercise of

discretion” was presented to the Immigration Court.

Pursuant to sections 101 and 103 the Covenant to Establish a

Commonwealth of the Northern Mariana Islands in Political Union with the

United States of America, see 48 U.S.C. 1801; Act of Mar 24, 1976, Pub.L.

94-241, 90 Stat. 263, the people of the CNMI, acting through their

constitutional processes, had and have a right to self-government that the

Federal Government cannot invade.. United States ex rel. Richards v. De

Leon Guerrero, 4 F.3d 749 (9th Cir. 1993)(“[T]he authority of the United

States towards the CNMI arises solely under the Covenant." citing Hillblom

v. United States, 896 F.2d 426, 429 (9th Cir.1990)).

Prior to November 28, 2009, as part of its exercise of that right to self-

government, the CNMI government afforded Petitioner Erwin the right to

live and work in the CNMI based on her status as the spouse of a citizen of

the Federated States of Micronesia. While maintenance of that status was

subject to annual review, the right to live and work in the CNMI continued

indefinitely absent a change in marital status or failure of procedural

compliance. Petitioner Erwin’s husband’s right to “habitually reside” and

work in the United States and CNMI is guaranteed by the Compact of Free

Association. Petitioner Erwin had a legitimate and reasonable expectation


25

that she would be able to continue to live and work in the CNMI so long as

she remained married to her husband and obeyed the law. That is a vested

right. To deny Petitioner Erwin the enjoyment of the status afforded her by

the CNMI as an exercise of the CNMI’s Covenant-guaranteed right of self-

government and which she had a legitimate and reasonable expectation she

would be able to enjoy indefinitely so long as she remained married to her

husband violates the Commonwealth’s right to self-government (on which

Ms. Erwin was entitled to rely), retroactively applies the law to withdraw

from Ms. Erwin benefits previously vested in her, and divests her of

property and liberty interests without due process of law.

“Retroactivity challenges to immigration laws implicate legitimate

due process considerations that need not be exhausted in administrative

proceedings because the Board of Immigration Appeals cannot give relief on

such claims.” Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.

2005). By refusing to recognize, and give Ms. Erwin the benefit of, the

immigration status conferred upon her by the CNMI Government, acting

pursuant to its right of self-government and delegated immigration authority,

as the spouse of a citizen of the Federated States of Micronesia, to live and

work in the CNMI indefinitely, subject only to the maintenance of that

status, the United States, through its implementation of Subtitle A of Title


26

VII of the CNRA, Pub. L. 110-229, has attached a new consequence – loss

of immigration status and potential removal from her CNMI home and her

husband – to the previously settled question of what it means in the CNMI

for an alien to be married to a citizen of the Federated States of Micronesia.

Courts are required to courts read laws as prospective in application

unless Congress has unambiguously instructed retroactivity. See Landgraf v.

USI Film Products, 511 U.S. 244, 263 (1994). Nothing in the CNRA

reflects an intention to alter the benefits and burdens flowing from

Ms. Erwin’s marriage to an FAS-national, as fixed under prior law.

A law has impermissible retroactive effect whenever it – or, as is the

same thing, its implementation – would take away or impair vested rights

acquired under existing law, or create a new obligation, impose a new duty,

or attach a new disability, in respect to transactions or considerations already

past. Vartelas v. Holder, ___ U.S. ___, 132 S. Ct. 1479, 1486-87 (2012);

Cardenas-Delgado v. Holder, 720 F.3d 1111, 1115 (9th Cir. 2013). Clearly

denial of parole-in-place for spouses of citizens of the Federated States of

Micronesia – a USCIS imitative designed to do nothing more than

effectively preserve the pre-transition immigration status of alien spouses of

FAS-nationals – and placement in removal proceedings takes away or

impairs Ms. Erwin’s vested rights acquired under prior law to live and work


27

in the CNMI indefinitely so long as she continued to be the spouse of an

FAS-national. Moreover, the ability of DHS to arbitrarily and capriciously

subject Petitioner Erwin, an alien lawfully in the CNMI on the transition

date, to possible removal from the CNMI and the United States, by the mere

expedient of denying her parole-in-place, constitutes a new disability she did

not face in the past with no change of circumstances other than the legal

regime.

In Chew Heong v. United States, 112 U. S. 536 (1884), the Supreme

Court held that a new law barring reentry to Chinese laborers who had not

obtained a certificate upon departure could not be applied to individuals who

had departed the United States prior to passage of the law. The new

requirement that Ms. Erwin be granted parole before she can continue to

enjoy the immigration benefit she previously enjoyed as the immediate

relative of a FAS-national is no different than the departure certificate

involved in Chew Heong.

B. Petitioner was denied due process of law when she was

hauled into Immigration Court on an inexcusably factually

inaccurate boilerplate Notice to Appear

Petitioner was not properly charged in conformance with 8 C.F.R

1003.15(b), which specifically provides that the Notice to Appear (“NTA”)

“must . . . include” the “nature of the proceedings against the alien,” the


28

“legal authority under which the proceedings are conducted,” and, inter alia,

the “acts or conduct alleged to be in violation of law.” 8 C.F.R. §

1003.15(b). As discussed below, the NTA in Petitioner’s case was fatally

deficient. Allegations of “acts or conduct” are not consonant with due

process of law unless made in good faith upon reasonably diligent inquiry.

One of the allegations against Petitioner Erwin clearly and demonstrably

was not so made.

This Court should not countenance false or careless pleadings by

DHS. DHS should be held to the same standards of pleading as attorneys in

civil cases. It was well known to DHS that Petitioner Erwin was in the

CNMI prior to the transition program effective date. See supra at 8; CAR

103. Regardless of whether she “entered the United States” on that date by

operation of law or on the earlier date when she was inspected and admitted

by CNMI immigration officers,4 it was known (and obvious) that she entered

at Saipan, Northern Mariana Islands. As for the date of entry, that obviously

was either November 28, 2009, or the earlier date of Ms. Erwin’s actual

4 Petitioner’s position is that she is entitled to be credited with

admission to the United States based on her inspection and authorization for

entry by a CNMI immigration officer acting pursuant to CNMI law

authorized by Congress, see Commonwealth Covenant §§ 503(a), 506, as

discussed in Part II infra. Accordingly, the inaccurate and misleading

allegation in the NTA is indeed material. And if the allegation were

immaterial, it would have no proper place in the NTA either.


29

physical entry to the CNMI (which was under the sovereignty of the United

States at the time but outside the definition of “United States” for INA

purposes). The latter date was readily ascertainable by DHS officers upon

reasonable inquiry.

In issuing an NTA, the immigration officer could plead both dates or

chose one; what the officer should not be allowed to do is avoid the issue

and enter a false or careless pleading. Instead, indifferent to their duty to

plead a legitimate good faith truthful basis for removal, DHS officers, as

shown here, resort to expedient boilerplate pleading requiring no effort to

determine the true facts and upon such inexcusably factually inaccurate

pleadings the burden of proof is to be shifted to the alien.5 Thus, in

Petitioner’s case, DHS pled that Ms. Erwin “entered the United States at or

near UNKNOWN, on or about unknown date,” CAR 106, when the place

and date of her entry actually was known to ICE or readily ascertainable

upon reasonable inquiry.

DHS has the burden of “establishing by clear and convincing . . .

reasonable, substantial, and probative evidence” all questions of fact it is

5 See 8 U.S.C. § 1229a (c)(2). This burden can be imposed on the

alien only in the absence of evidence of admission and where the alien has

been provided access to any and all non-confidential records and documents

“pertaining to the alien’s admission or presence in the United States.” Id.


30

required to prove. See 8 U.S.C. § 1229a (c)(3)(A). Section 1229a also

makes clear that a threshold question in every removal case is determination

of how the alien may be charged. See 8 U.S.C. § 1229a (e)(2). The burden

of showing that the alien is properly charged plainly must belong to DHS.

That function and duty is not meaningfully performed unless immigration

officers are diligent in their investigation and pleading of removal cases.

The importance of these pre-commencement duties is apparent upon

an examination of the governing law. An alien charged as removable on

grounds of inadmissibility need only show lawful presence in the United

States pursuant to a valid admission6 to defeat removal. 8 U.S.C. § 1229a

(c)(2)(B). Moreover, an alien who has been admitted is not properly

chargeable as removable on 8 U.S.C. § 1182 (inadmissibility) grounds at all.

8 U.S.C. § 1229a (e)(2)(A). Such an alien can only be charged as removable

on 8 U.S.C. § 1227 (deportability) grounds. 8 U.S.C. § 1229a (e)(2)(B).

DHS careless and irresponsible pleading practices denied Petitioner

both substantive and procedural due process of law. This Honorable Court

6 An admission need only be procedurally regular to be valid. Matter

of Quilantan, 25 I&N Dec. 285, 291 (BIA 2010). It is undisputable that

Petitioner Erwin’s entry prior to November 28, 2009, was procedurally

regular. In Matter of Quilantan, the alien had merely been waved through

the port of entry by the immigration officer. This action was deemed a

procedurally regular admission.


31

should, as an exercise of discipline, in this and every other case likewise

falsely or carelessly pled, grant the petition, vacate the order of removal, and

remand to the BIA with instructions terminate proceedings with prejudice.

C. Petitioner was denied due process of law when wrongful

denial of her application for an immigration benefit

specially tailored to deal with the challenges of transition

from an immigration regime governed by CNMI law to

integration into the Federal system was used to initiate and

prosecute removal proceedings against her

Review of Exhibit 2, CAR 92-94, suggests that Petitioner Erwin came

to the attention of ICE as a result of a referral by the USCIS Guam Field

Office after she applied for the parole-in-place to which she was entitled.

See CAR 94. Such a referral for possible removal is inappropriate when an

alien applies for parole in place because it conflicts with the Congressional

purposes of section 212(d)(5) and the CNMI transition program. Such

referrals means aliens are put at risk by making a good faith request for a

benefit. This can only have a chilling effect on requests for immigration

benefits and drive many aliens to chose obscurity, avoidance, and violation

of the immigration laws rather than seeking to comply voluntarily, which is

the far more effective means of obtaining conformance of conduct to the

law. Thus, the arbitrary and capricious approach of denying the benefit and

referring for removal also unnecessarily drives up the costs of enforcement.

This Honorable Court should refuse to countenance an “enforcement” tactic


32

that so undermines the law. Accordingly, in such cases, as this appears to

be, the BIA should grant the petition, vacate the order of removal, and

remand to the BIA with instructions to terminate proceedings with prejudice.

II. PETITIONER’S LAWFUL ADMISSION BY CNMI IMMIGRATION

OFFICERS ACTING PURSANT TO A CONGRESSIONAL GRANT OF

AUTHORITY FORECLOSES REMOVAL ON INADMISSABILITY

GROUNDS

United States immigration law was extended to the Commonwealth of

the Northern Mariana Islands (CNMI) effective November 28, 2009, by

Title VII of the Consolidated Natural Resources Act of 2008 (CNRA). Pub.

L. 110-229, 122 Stat. 754, 854-55. This case arises out of the shift in

exercise of immigration authority in the CNMI from CNMI to Federal

officials. Accordingly, its resolution depends on a proper understanding of

the relationship between the CNMI and the United States. See United States

ex rel. Richards v. Guerrero, 4 F.3d 749 (9th Cir. 1993)(“[T]he authority of

the United States towards the CNMI arises solely under the Covenant,"

quoting Hillblom v. United States, 896 F.2d 426, 429 (9th Cir.1990).

In 1975, the Northern Mariana Islands acceded to the United States

pursuant to a Covenant to Establish a Commonwealth of the Northern

Mariana Islands in Political Union with the United States of America (“the

Covenant”), approved by Congress and given effect as United States law.

48 U.S. § 1801. On November 3, 1986, the Commonwealth of the Northern


33

Mariana Islands (CNMI) formally became part of the United States pursuant

to sections 101 and 1003 of the Covenant as “a self-governing

commonwealth . . . in political union with and under the sovereignty of the

United States of America.” COVENANT § 101; Presidential Proclamation

5564, 51 Fed Reg. 40399.

Under Section 503(a) of the Covenant, the immigration and

naturalization laws of the United States did not apply to the CNMI except

with respect to certain limited circumstances set out in Section 506 of the

Covenant. Consistent with these provisions of the Covenant, the CNMI was

excluded from the definition of “United States” in 8 U.S.C. § 1101(a)(38)

(and related definitions) until Congress enacted Title VII of the Consolidated

Natural Resources Act of 2008 (CNRA). Pub. L. 110-229, 122 Stat. 754,

854-55. Pursuant to the CNRA, the INA became applicable to the CNMI,

with certain limitations, modifications and overlays, on November 28, 2009.

A. The relationship between the CNMI and the United States

"The Covenant is an executive agreement under United States law,

authorized by the executive recognition power and the President's power as

Commander-in-Chief of the armed forces." Lizabeth A. McKibben, The

Political Relationship Between the United States and Pacific Islands

Entities: The Path to Self-Government in the Northern Mariana Islands,


34

Palau, and Guam, 31 HARV. INT'L L.J. 257, 272 (1990). Pursuant to the

Covenant, the CNMI became a part of the United States on November 3,

1986. COVENANT § 101; 48 U.S.C. § 1801 note; Presidential Proclamation

5564, 51 Fed Reg. 40399. Under the Covenant, in addition to sovereignty,

all foreign policy and defense powers are reserved to the United States.

COVENANT § 104. Nevertheless, immigration authority was expressly

delegated to the CNMI pursuant to Covenant sections 503(a) and 506. See

48 U.S.C. § 1801 and 48 U.S.C. § 1801 note. At the same time, ultimate

authority over immigration was reserved to the United States. COVENANT §

503 (exempting the CNMI from the application, for the most part, of U.S.

immigration law “except in the manner and to the extent made applicable to

them by Congress after termination of the Trusteeship Agreement.”).

B. The immigration power

The authority to control immigration – to admit or exclude foreigners

from the dominion and regulate their activities therein – is an incident of

national sovereignty. Harisiades v. Shaughnessy, 342 U.S. 580 (1952);

Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); Nishimura

Ekiu v. United States, 142 U.S. 651, 659 (1892). Cf. Arizona v. United

States, 567 U.S. ___, 132 S. Ct. 2492, 2498 (2012)(Scalia, J. concurring in

part and dissenting in part). Authority over immigration is also found in the


35

exclusively national authority to regulate foreign commerce. See Nishimura

Eiku, supra; Passenger Cases, 48 U.S. 283 (1849); Head Money Cases, 112

U.S. 580 (1884).

In Nishimura Ekiu v. United States, the Court stated:

It is an accepted maxim of international law that every

sovereign nation has the power, as inherent in sovereignty and

essential to self-preservation, to forbid the entrance of

foreigners within its dominions or to admit them only in such

cases and upon such conditions as it may see fit to prescribe.

In the United States, this power is vested in the national

government, to which the Constitution has committed the entire

control of international relations, in peace as well as in war. It

belongs to the political department of the government, and may

be exercised either through treaties made by the President and

Senate or through statutes enacted by Congress, upon whom the

Constitution has conferred power to regulate commerce with

foreign nations, including the entrance of ships, the importation

of goods, and the bringing of persons into the ports of the

United States; to establish a uniform rule of naturalization; to

declare war, and to provide and maintain armies and navies, and

to make all laws which may be necessary and proper for

carrying into effect these powers and all other powers vested by

the Constitution in the government of the United States, or in

any department or officer thereof.

142 U.S. at 659 (internal citations omitted).

That the exercise of the immigration power in the CNMI by CNMI

officials was pursuant to a delegation of authority reserved to the sovereign

is confirmed by the House Committee report on the bill that became Title

VII of the CNRA. See H. Rep. 110-469 (Dec. 4, 2007) at 12, 2007 WL

4291940 *12 (“[T]he NMI government was given temporary responsibility


36

for determining minimum wage laws, immigration standards, and an income

tax system.” (emphasis added)). The Senate committee report makes the

same point. S. Rep. 110-324 (April 10, 2008) at 5, 2008 WL 1740677 *5

(“Immigration is an inherently sovereign function[.]”).

C. Petitioner should be considered admitted as a matter of law

The INA defines “admission” and “admitted” as “the lawful entry of

the alien into the United States after inspection and authorization by an

immigration officer.” See 8 U.S.C. § 1101(a)(13)(A). Respondent cannot in

good faith argue that Petitioner Erwin was not inspected and authorized

entry to CNMI by a duly constituted CNMI immigration officer and that her

presence in the United States after November 28, 2009, was pursuant to that

admission and the subsequent extension of the territorial application of the

INA by the CNRA to include the CNMI.7

DHS chooses – arbitrarily – to treat Petitioner Erwin as if she got into

the United States by evading inspection. Worse, DHS chooses – equally

arbitrarily – to treat Petitioner Erwin as if she were standing at the border

seeking to immigrate to the United States without the documents required to

7 To avoid the natural result of this fact, ERO / ICE specifies “United

States immigration officer” in its pleadings and relies on the INA definition

of “immigration officer” in 8 U.S.C. § 1101(a)(18).


37

enter as an immigrant. In point of fact, Petitioner Erwin is in the United

States, and she entered the United States in an entirely procedurally regular

fashion. Based on well-established precedent interpreting the term

“admitted” in other contexts in the INA, Petitioner Erwin should be deemed

admitted, and removal proceedings against her on grounds of inadmissibility

were entirely improper.

Petitioner should be considered admitted as a matter of law.

D. Petitioner’s inspection and authorization for entry by

CNMI immigration officers constitutes a lawful admission

to the United States

It is beyond cavil that the CNMI has been part of the United States of

America since November 3, 1986. COVENANT § 101; Presidential

Proclamation 5564, 51 Fed Reg. 40399. The sole basis for treating

Ms. Erwin as outside United States during any of the years she lived and

worked in the CNMI before November 28, 2009, was the definition of

“United States” in 8 U.S.C. § 1101(a)(38). Yet for more than thirty years

the Commonwealth Covenant has made it clear that the general rule is that

the CNMI is to be treated as if it were a state, i.e. as equivalent to any one of

the fifty states that make up the “United States of America.” Cf. COVENANT

§§ 105 (authorizing the United States to enact legislation in accordance with

its constitutional processes that would automatically apply to the CNMI


38

unless the law is not also “applicable to the several states,” in which case the

CNMI must be specifically named if the law is to be applicable); 501(a)

(making most of the United States Constitution applicable to the CNMI “as

if the Northern Mariana Islands were one of the several states”). See

Sabangan v. Powell, 375 F.3d 818, 820-21 (9th

Cir. 2004)(“[H] how could

the CNMI be treated as a State without being treated as being in the United

States? No State governed by the Constitution of the United States exists in

a realm outside the realm comprehended by the United States.”). Subtitle A

of Title VII of the CNRA and pertinent provisions of the INA must be

construed to harmonize with Covenant Sections 105 and 501(a). See St.

Louis, I.M. & S. Ry. v. United States, 251 U.S. 198, 207, 40 S. Ct. 120, 122,

64 L. Ed. 225 (1920)(“ These statutes must be construed together and effect

given to all of them.”); Owner-Operators Independent Drivers Ass'n of

America, Inc. v. Skinner, 931 F.2d 582, 586 (9th Cir. 1991); see also United

States ex rel. Richards v. Guerrero, 4 F.3d 749 (9th Cir. 1993)(“[T]he

authority of the United States towards the CNMI arises solely under the

Covenant," quoting Hillblom v. United States, 896 F.2d 426, 429 (9th

Cir.1990).

The Government misconstrues 8 U.S.C. § 1101(a)(38) to avoid the

natural legal effect of Petitioner’s inspection and authorization to enter by


39

CNMI immigration officials. As amended by section 702(j)(3) of the CNRA

effective November 28, 2009, that section provides:

The term "United States", except as otherwise specifically

herein provided, when used in a geographical sense, means the

continental United States, Alaska, Hawaii, Puerto Rico, Guam,

the Virgin Islands of the United States, and the Commonwealth

of the Northern Mariana Islands.

8 U.S.C. § 1101(a)(38). The sole change to this definition made by section

702(j)(3) of the CNRA was the addition of the Commonwealth of the

Northern Mariana Islands to the list of included areas.

This definition includes two express qualifiers. First, it excludes any

instance “otherwise specifically herein provided.” Second, it defines

“United States” only “when used in a geographical sense.” In other words,

by its plain meaning, 8 U.S.C. § 1101(a)(38) defines the territorial reach of

the INA.

The test of “admission” to the United States serves a quite different

purpose than defining the territorial reach of U.S. immigration law. The

latter simply prescribes whether the immigration power is to be exercised in

a particular geographic area by means of application of the INA or by some

other mechanism (such as the Commonwealth Covenant). “Admission,” on

the other hand, is the “litmus test” for legality.


40

The INA defines “admission” and “admitted” as “the lawful entry of

[an] alien into the United States after inspection and authorization by an

immigration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis added). It

cannot be disputed that Petitioner Erwin entered lawfully, regardless of

whether her date of entry is taken as her most recent pre-November 28, 2009

entry to the CNMI,8 or on November 28, 2009, when the “United States”

“border” rolled over her.

Under the plain text of the statute, an “admission” has two basic

requirements: (1) that there be a physical entry into the United States; and

(2) that such physical entry take place after an immigration officer has

inspected the alien and authorized his or her entry. See, e.g., Lanier v. U.S.

Att’y Gen., 631 F.3d 1363, 1366 (11th Cir. 2011). It cannot be disputed that

Ms. Erwin entered the United States. The only question is when and how

she made her legally cognizable entry. She either entered the United States

when she arrived at the Saipan International Airport and was inspected and

authorized entry by a CNMI immigration officer, or she entered the United

States when the U.S. “border” rolled over her by operation of law at

midnight on November 28, 2009. In either case, she broke no law, and her

8 Petitioner Erwin’s pre-November 28, 2009 lawful entry is

confirmed by the Government’s evidence. CAR 94; see also supra at 8.


41

entry was “procedurally regular.” Petitioner believes the better analysis and

approach is to recognize her admission by a CNMI immigration officer as a

lawful admission to the United States.

The position of DHS, the BIA, and the Immigration Judge that

Ms. Erwin is amenable to removal on inadmissibility grounds depends on an

assumption that her inspection and authorization by a CNMI immigration

officer did not satisfy the second prong of 8 U.S.C. § 1101(a)(13)(A).

The assumption is wrong. It depends entirely on the definition of

“immigration officer” in the INA as being “any employee or class of

employees of the Service or of the United States designated by the Attorney

General, individually or by regulation, to perform the functions of an

immigration officer specified by this Act or any section thereof.” 8 U.S.C. §

1101(a)(18). This definition has two parts: a functional part that CNMI

immigration officers clearly would satisfy and a requirement that the officers

be an “employee . . . of the United States.”

DHS and EOIR9 insist (or assume without analysis) that the

requirement of United States employment must be strictly satisfied, that the

9 Executive Office for Immigration Review, United States

Department of Justice. EOIR provides administrative adjudication of

removals and review of some other immigration decisions. See 8 C.F.R.

Part 1003.


42

employment prong has precedence over the functional prong, that such

superiority precludes an interpretation the employment prong can be broadly

read as including any official authorized by United States law to perform the

function (and thus subordinate to the functional prong), that the officer

inspecting and authorizing entry must be a “United States immigration

officer.”10

Such a strict construction is inconsistent with the objectives of

Congress in enacting Title VII, Subtitle A of the CNRA. It also conflicts

with the nature of the immigration power and the relationship between the

CNMI and the United States established by the Commonwealth Covenant.

See supra at 33-36. Finally, it is not in accord with the “longstanding

principle” that any “lingering ambiguities in deportation statutes [must be

construed] in favor of the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421,

449, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987).

The DHS construction is by no means compelled by the statutory text.

The law does not state that an alien found to be present in the CNMI now,

10

The term “United States immigration officer” appears nowhere in

the INA. It is a contrivance of ERO / ICE apparently used exclusively in

boilerplate pleadings for removal cases in the CNMI, see CAR 108 (NTA

alleging that Ms. Erwin was not “admitted or paroled after inspection by a

United States Immigration Officer”), concocted to artificially distinguish and

emasculate CNMI immigration officers of their lawful authority so as to

impute illegality to an entirely lawful entry.


43

must have been inspected by a “United States Immigration Officer,” but

only that an alien must be admitted or paroled by an authority designated by

the Attorney General. See 8 U.S.C. § 1182(a)(6)(A)(i). When Petitioner

Erwin entered the CNMI, the authority designated by the Attorney General

to conduct immigration in the CNMI was the CNMI government. See

COVENANT §§ 101, 102, 506(a), 48 U.S.C. § 1801-05.

E. Petitioner’s entry to the United States was procedurally

regular in any event

An admission need only be procedurally regular to be valid for many

purposes under the INA. See Matter of Quilantan, 25 I. & N. Dec. 285, 291

(BIA 2010). Accordingly, even the process of becoming present in the

United States by operation of law on November 28, 2009, pursuant to the

terms of the CNRA, being a “procedurally regular” entry (if it can be

deemed an entry)11

constitutes a valid admission to the United States. This

certainly has to be true in the context of the special challenges presented by

the transition to Federal immigration control in the CNMI. See 48 U.S.C. §

1806(a)(1)-(3).

11

And if it cannot be deemed an entry, then the prior admission of

Petitioner by CNMI immigration officials must be credited because

Petitioner Erwin indisputably is in the United States now and it is logically

impossible for her to be in the United States without having physically

entered the United States sometime and somehow.


44

An alien charged as removable on grounds of inadmissibility need

only show lawful presence in the United States pursuant to a valid admission

to defeat removal. 8 U.S.C. § 1229a (c)(2)(B). An alien who has been

admitted, however, is not properly chargeable as removable on 8 U.S.C. §

1182(a) (inadmissibility) grounds at all. 8 U.S.C. § 1229a (e)(2)(A). Such

an alien can only be charged as removable on 8 U.S.C. § 1227

(deportability) grounds. 8 U.S.C. § 1229a (e)(2)(B).

III. PETITIONER CANNOT BE REMOVABLE AS AN INTENDING

IMMIGRANT WITH OUT REQUIRED DOCUMENTS ABSENT AN

INDIVIDUALIZED PERSONAL CHOICE TO ENTER OR SEEK ENTRY

TO THE UNITED STATES

Immigrants without specified required documents are inadmissible

pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). DHS and immigration judges

regularly label an alien an “intending immigrant” in order to invoke this

statutory provision. The basis for this is the broad definition in U.S.

immigration law of “immigrant” as any alien not defined as a

“nonimmigrant.” 8 U.S.C. § 1101(a)(15). But focus on the definition of

“immigrant” misses the point and thus leads to application of the wrong test

in determining whether an alien is removable under 8 U.S.C. §

1182(a)(7)(A)(i)(I).


45

This error is avoided by paying close attention to the statutory text.

The plain language of the section indicates that it applies only at the time of

an alien’s application for admission to the United States:

[A]ny immigrant at the time of application for admission who

is not in possession of a valid unexpired immigrant visa, reentry

permit, border crossing identification card or other valid entry

document required by this chapter . . . is inadmissible.

8 U.S.C. § 1182(a)(7)(A)(i)(I) (emphasis added). “The language of a statute

is controlling when the meaning is plain and unambiguous.” United States

v. Maria-Gonzalez, 268 F.3d 664, 668 (9th Cir. 2001).

Petitioner Erwin did not apply for “admission,” she applied for parole

pursuant to a special initiative under which the Department of Homeland

Security is to use its authority under 8 U.S.C. § 1182(d)(5)(A) to deal with

the special challenges of the transition to U.S. immigration in the CNMI for

aliens such as Petitioner Erwin who were lawfully in the CNMI pursuant to

CNMI law on November 28, 2009, when the applicability of U.S.

immigration law was extended to include the CNMI.12

Accordingly,

8 U.S.C. § 1182(a)(7)(A)(i)(I) is not properly applicable to petitioner.

12

Lest it be argued that Ms. Erwin’s application for parole-in-place

constitutes an application for admission rendering her amenable to removal

on 8 U.S.C. § 1182(a)(7)(A)(i)(I) grounds, it needs to be noted that 8 U.S.C.

§ 1182(d)(5)(A) refers to “any alien applying for admission,” not “at the

time of application for admission.” Section 1182(a)(7)(A)(i)(I) obviously

does not disqualify an alien from eligibility for 8 U.S.C. § 1182(d)(5)(A)


46

On its face, 8 U.S.C. § 1182(a)(7)(A)(i)(I) does not apply to Petitioner

because she did not make an application for admission. Deeming her an

applicant for admission makes no difference.

Abuse of 8 U.S.C. § 1182(a)(7)(A)(i)(I) to effect removal of aliens

who were in the CNMI prior to extension of the INA to the CNMI

countermands the intent of Congress in enacting Title VII, Subtitle A of the

CNRA. The misguided removal proceedings have been frustrating special

transitional relief for spouses of nationals of freely associated states for

which Petitioner is clearly qualified.

Since the statute plainly and unambiguously applies only at the time

of application for admission, it is equally plain and unambiguous that it can

apply only to an alien who actually makes an application for admission, and

therefore that it cannot apply to Petitioner Erwin, who has made none.

A. “Application for admission” is a defined term in the INA

Moreover, “application for admission” is a defined term in the INA.

“The term ‘application for admission’ has reference to the application for

parole. Thus, in the sense and context of section 1182(d)(5)(A), “any alien

applying for admission” simply refers to any alien (not just intending

immigrants) seeking to enter or remain in the United States lawfully, and is

clearly distinguishable from the much more narrow and precise “at the time

of application for admission” of 8 U.S.C. § 1182(a)(7)(A)(i)(I), identifying

the precise time and purpose when an alien is required to have specified

documents.


47

admission into the United States and not to the application for the issuance

of an immigrant or nonimmigrant visa.” 8 U.S.C. § 1101(a)(4). The latter

typically takes place outside the United States but can occur while the alien

is in the United States as a prerequisite to an application for adjustment of

status. An 8 U.S.C. § 1101(a)(4) “application for admission” typically takes

place at the border.

An alien making “application for admission” is seeking “the lawful

entry of the alien into the United States after inspection and authorization by

an immigration officer.”13

See 8 U.S.C. § 1101(a)(13)(A) (defining

“admission” and “admitted”)(emphasis added). This necessarily requires an

affirmative act by the alien to present herself as an applicant for admission to

an immigration officer for inspection and authorization for entry. See, e.g.,

Lezama-Garcia v. Holder, 666 F.3d 518, 523 (9th Cir. 2011)(section applied

against alien attempting to enter United States from Mexico at Otay Mesa

Port of Entry); see also 8 U.S.C. §§ 1181(a) and 1184(b) (both using the

term “time of application for admission” to refer to the moment when an

arriving immigrant (§ 1181) or nonimmigrant (§ 1184) physically “presents”

13

“Entry” as a term of art still has vitality. See United States v. Li, 643

F.3d 1183 (9th

Cir. 2011) (alien travelling from one part of the United States

to another through international waters does not thereby make an entry when

landing at the second U.S. destination)(quoting United States ex rel.

Claussen v. Day, 279 U.S. 398, 401, 49 S. Ct. 354, 73 L. Ed. 758 (1929)).


48

his documents and establishes his admissibility “to the satisfaction of . . . the

immigration officers”).

B. Deeming Ms. Erwin an “applicant for admission” makes no

difference

The only way DHS, the BIA, and Immigration Judge are able

colorablely to place Petitioner within the ambit of 8 U.S.C. §

1182(a)(7)(A)(i)(I) is by deeming her an “applicant for admission” pursuant

to 8 U.S.C. § 1225(a)(1) (“An alien present in the United States who has not

been admitted . . . shall be deemed for purposes of this chapter an applicant

for admission.”). This is wrong, however, because 8 U.S.C. §

1182(a)(7)(A)(i)(I) requires not just the status of being an “applicant,” but an

actual time of application.

The word “time” in the statute must be given meaning, see, e.g.,

Andrieu v. Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001) (“Statutes must be

interpreted, if possible to give each word some operative effect.”), and its

meaning must be that an “application for admission” refers to a discrete act,

since only an actual application, not the constructive status of being an

applicant, occurs at a particular determinable time.

The foregoing interpretation is borne out by numerous other occasions

in which the term “application for admission” is used in the INA, which


49

regularly presume that it can serve as the basis for the calculation of a

precise date. See, e.g., 8 U.S.C. § 1101(a)(15)(L) (“within 3 years preceding

the time of his application for admission”); 8 U.S.C. § 1101(a)(15)(R)(i)

(“for the 2 years immediately preceding the time of application for

admission”); 8 U.S.C. § 1101(a)(27)(C)(i) (“for at least 2 years immediately

preceding the time of application for admission”); 8 U.S.C. §

1182(a)(2)(A)(ii) (“more than 5 years before . . . the date of application for

admission”). See generally Andrieu, supra, 253 F.3d at 480 (“A basic guide

to the meaning of statutory language is the context of the statute as a

whole.”).

The status of being a constructive “applicant for admission,” under

8 U.S.C. § 1225(a)(1), by contrast, is established not for the purpose of

setting a time at which, or before which, something must occur, but for the

entirely different purpose of determining the procedural rules that will

govern a removal proceeding. It is an idiosyncrasy of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

which changed the procedures for persons present without admission:

Before the IIRIRA, both illegal and legal aliens who entered the

United States enjoyed the right to deportation proceedings

before being forcefully expelled from the United States. Under

the IIRIRA, aliens who are not inspected and admitted by an

immigration officer are deemed to be seeking admission and are

subject to exclusion under section 212(a) of the Immigration


50

and Nationality Act (“INA”), regardless of when they effected

an entry into the United States under prior law and how long

they have actually lived here after entry without inspection.

Kurzban & Chaviano, Immigration Law: 1997 Survey of Florida Law,

22 NOVA L. REV. 149, 151 (1997) (footnotes and internal punctuation

omitted). See also Lezama-Garcia, supra, 666 F.3d at 526-28 (discussion of

same change in law).

EOIR’s newsletter describes the change as a shift to make “an alien’s

‘admission,’ rather than his or her ‘entry,’ into the United States a central

legal principle of the Immigration and Nationality Act.” Daniel Cicchini &

Joseph Hassell, The Continuing Struggle To Define “Admission” and

“Admitted” in the Immigration and Nationality Act, IMMIGRATION LAW

ADVISOR, Vol. 6, No. 6 (June 2012) at 1. And the BIA itself had this to say:

[I]t has been well documented that Congress amended section

101(a)(13) of the Act simply to eliminate that aspect of the

“entry doctrine” that permitted aliens who had entered without

inspection to have greater procedural and substantive rights in

deportation proceedings than those who had presented

themselves for inspection at a port of entry and had been placed

in exclusion proceedings.

Matter of Quilantan, 25 I&N Dec. 285, 291 (BIA 2010).

This constructive status should be left to its own purpose, and should

not be confused with the different statutory term “application for

admission,” which has a different purpose and different meaning:


51

It is a well-established canon of statutory interpretation that the

use of different words or terms within a statute demonstrates

that Congress intended to convey a different meaning for those

words, and we must assume that the difference in usage is

legally significant.

Padash v. Immigration and Naturalization Service, 358 F.3d 1161, 1169 n.7

(9th Cir. 2004) (internal quotation marks omitted). See also, e.g., Andrieu,

supra, 253 F.3d at 480 (“Where Congress includes particular language in

one section of a statute but omits it in another section of the same Act, is it

generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”) (internal punctuation omitted).

C. Use of 8 U.S.C. § 1182(a)(7)(A)(i)(I) to remove Petitioner

flies in the face of Congressional purpose and intent

The removal from the CNMI for lack of entry documents of an alien

who has been living there since prior to the CNRA would also defeat the

intent of Congress in enacting the CNRA in the first place, which was to

preserve the CNMI’s existing alien population, at least for a substantial

period of time, as a necessary workforce.

Prior to the CNRA, the CNMI “admitted temporary guest workers and

other aliens who lacked federal immigration status.” Eche v. Holder, 694

F.3d 1026, 1030 (9th

Cir. 2012). Congress recognized, in enacting the

CNRA, that the passage of the Act could be read to have the effect of

causing this substantial alien population to suddenly and automatically


52

become present in “the United States” (as defined by the INA) without ever

having been admitted to it (by a U.S. Government employee), and thus

potentially inadmissible and removable under 8 U.S.C. § 1182(a)(6)(A)(i)

(“An alien present in the United States without being admitted or paroled . . .

is inadmissible.”).

Congress did not wish to make all those aliens immediately

removable, however, as it wished to “ensure that CNMI employers have

access to an adequate number of employees during the transition period.”

Northern Mariana Islands v. United States (I), 670 F.Supp. 2d 65, 73

(D.D.C. 2009). Congress therefore protected against mass removal of the

CNMI’s aliens by providing the affirmative protection against removal

contained in 48 U.S.C. § 1806(e)(1)(A).

Congress was conscious that most of the aliens that it thereby shielded

from removal did not have any United States visa, and would not qualify for

any. It therefore provided for a new type of visa to be created specifically

for them. See 48 U.S.C. § 1806(d)(2) (requiring the Secretary of Homeland

Security to establish a system of permits for alien workers in the CNMI who

“would not otherwise be eligible for admission under the Immigration and

Nationality Act”). See also Northern Mariana Islands v. United States (II),

supra, 686 F.Supp. 2d 7, 12 (D.D.C. 2009) (“The CNRA transition program


53

provides a means for foreign workers who are not eligible to enter or remain

in the Commonwealth under the terms of the INA to work in the Islands

lawfully during the transition period.”). Congress also envisioned other

future status opportunities for these aliens in the United States. See 48

U.S.C. § 1806(h)(5) (requiring the Secretary of the Interior to report whether

Congress “should consider permitting lawfully admitted guest workers

lawfully residing in the Commonwealth on [the] enactment date to apply for

long-term status under the immigration and nationality laws of the United

States”).

Eventually, a new work visa program, applicable only in the CNMI,

was created by regulation, effective October 7, 2011. See 76 Fed. Reg.

55502; 8 C.F.R. § 214.2(w) (“CNMI-Only Transitional Worker (CW-1)”).

Also, “parole-in-place” programs were established for certain other classes

of aliens with strong historical or familial ties to the CNMI, whose status

was not clearly addressed by the CNRA.14

These programs allow the

14

See USCIS website: http://www.uscis.gov/laws/immigration-

commonwealth-northern-mariana-islands-cnmi/commonwealth-northern-

mariana-islands-cnmi-federalization-immigration-law.


54

affected aliens to remain in the CNMI while their ultimate status is worked

out, most probably by further legislation.15

Congress’ substantive intent, in establishing an exemption to removal

under 8 U.S.C. § 1182(a)(6)(A), was that the alien population of the CNMI

would, as a class, be protected from mass removal for its presumed (by the

drafters) failure to meet federal admissibility requirements. That intent

appears in the legislative history:

The subsection states that any alien present in the CNMI, at the

start of the transition program effective date may remain in the

CNMI and is considered authorized for employment.

S. Rep. 110-324 at 7, 2008 WL 1740677 *7.

The section states that any alien present in the CNMI, at the

start of the transaction program effective date may remain in the

CNMI and is considered authorized for employment.

H.R. Rep. 110-469(I), 2007 WL 4291940 *16. It also appears in judicial

construction of the CNRA:

[A]ny alien who is lawfully present in the CNMI pursuant to

the Commonwealth’s immigration laws at the start of [the]

transition period may remain within the Islands for a grace

period[.]

NMI (II), supra, 686 F.Supp.2d at 12 (summarizing the U.S. District Court

for the District of Columbia understanding of 48 U.S.C. § 1406(e)(1)(A)).

15

For example, a provision establishing a new CNMI-only permanent

residence status was pending before the previous Congress. See S. 744,

113th Cong., 1st Sess. § 2109.


55

IV. EXERCISE OF PAROLE AUTHORITY BY IMMIGRATION JUDGES

AND THE BOARD OF IMMIGRATION APPEALS IS NECESSARY TO

ACCOMPLISHMENT OF THE TRANSITION TO FEDERAL

IMMIGRATION CONTROL IN THE CNMI CONSISTENT WITH

EXPRESSLY STATED CONGRESSIONAL MANDATES

The INA grants the executors of United States immigration laws the

authority to parole aliens into the United States in the following terms:

The Attorney General may . . . in his discretion parole into the

United States temporarily under such conditions as he may

prescribe only on a case-by-case basis for urgent humanitarian

reasons or significant public benefit any alien applying for

admission to the United States . . . .

8 U.S.C. § 1182(d)(5)(A)(emphasis added).

Petitioner disagrees with any contention that this authority can only be

exercised by agents of the Department of Homeland Security and not by

immigration judges or the Board of Immigration Appeals. Certainly the

statute does not so proscribe. The statute vests the authority in the “Attorney

General.” The Board of Immigration Appeals and immigration judges are

part of the Executive Office for Immigration Review of the United States

Department of Justice, headed by the Attorney General. The Department of

Homeland Security exercises parole authority only by virtue of the

Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (2002).

Nothing in that Act compels the result advocated by Respondent.16

By

16

BIA decisions in support of this proposition are not persuasive.

These decisions do not arise out of the transition to Federal immigration


56

control in the CNMI, and do not include facts or reasoning helpful to

resolution of the question before the court.

Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010), was

concerned with whether an alien who was paroled into the United States

upon release from custody pursuant to 8 U.S.C. § 1226(a)(2)(B) was

considered “paroled” for purposes of statutory eligibility for adjustment of

status. In the course of concluding that he was not, the BIA distinguished

8 U.S.C. § 1226(a)(2)(B) parole from 8 U.S.C. § 1182(d)(5)(A) parole.

Obviously, this is a very different context than the matter now before court,

which is concerned exclusively with what agents of the United States have

authority to act pursuant to 8 U.S.C. § 1182(d)(5)(A).

The BIA apparently made the error of reading the absence of the

office “Attorney General” from the regulations as divesting that office of the

authority, when the Attorney General’s authority flows from the statute, not

the regulations, and the regulations are concerned exclusively with

delegations in the Department of Homeland Security, not the Department of

Justice. See 25 I. & N. at 261. Indeed, the question considered by the BIA

had already been decided by this court in Ortega-Cervantes v. Gonzales, 501

F.3d 1111 (9th

Cir. 2007), without need of reaching such distant conclusions.

Matter of United Airlines Flight UA802 relies on Matter of Matelot,

18 I. & N. Dec. 334 (BIA 1982), for the remarkable language describing the

authority of the INS district director as “exclusive jurisdiction.” Matelot, in

turn, relies on Matter of Castellon, 17 I. & N. Dec. 616 (BIA 1981); Matter

of Niayesh, 17 I. & N. Dec. 231 (BIA 1980); Matter of Lepofsky, 14 I. & N.

Dec. 718 (BIA 1974); and Matter of Conceiro, 14 I&N Dec. 278 (BIA

1973), aff’d Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 1973). Taken

together, those cases do seem to support the proposition that the Board of

Immigration Appeals, and Immigration Judges, lack authority not only to

review how district directors exercise their parole power but also that they

lack authority to grant parole where USCIS has failed or refused to act.

Nevertheless, the reasoning of these cases is ultimately unsatisfying, and

their continued vitality uncertain, particularly in the context of the unique

circumstances and requirements of the transition to Federal immigration

control in the CNMI. It also is noteworthy also that none of these authorities

were cited by DHS counsel, the immigration judge, or the BIA in the course

the proceedings in Petitioner’s case.


57

statute, principal authority for parole rests not with the Department of

Homeland Security but with the Attorney General.

The Board of Immigration Appeals relied on nothing more than a

footnote in Valdez and 8 C.F.R. § 212.5(a) to rule that “[P]arole authority

under section 212(d)(5)(A) is delegated solely to the Secretary of Homeland

Security and is not within the jurisdiction of Immigration Judges or this

Board.” CAR 2. The footnote in Valdez quoted in the BIA decision relied

solely on the regulation and Matter of Castillo-Padilla, 25 I&N Dec. 257,

261 (BIA 2010). Castillo-Padilla concerned a very different question than

the one now before the Court. See supra n.16. The issue in that case was

whether Castillo-Padilla had been paroled into the United States so as to be

eligible for adjustment of status. The BIA held that parole pursuant to

8 U.S.C. § 1226(a), related to border control, did not qualify as parole for

purposes of 8 U.S.C. § 1255(a) adjustment of status. Clearly, the statement

in Castillo-Padilla on which the Valdez footnote relied was mere dictum.

The regulation simply defines how the 8 U.S.C. § 1182(d)(5)

authority extended to the Secretary of Homeland Security is to be exercised

within in the Department of Homeland Security. Nothing in that regulation

diminishes, impairs, or negates the statutory authority of the Attorney

General (and his delegates) to exercise the parole authority at issue.


58

As the spouse of a citizen of the Federated States of Micronesia, a

freely associated state (“FAS”), Petitioner Erwin is qualified for parole-in-

place pursuant to USCIS policy adopted on or before November 30, 2009.

As a CNMI-resident alien who was in lawful status pursuant to the

immigration laws of the Commonwealth prior to November 28, 2009, and an

individual of undisputed good moral character, Petitioner Erwin is qualified

for this benefit. The wrongful denial of parole and placement in removal

proceedings have been frustrating the special transitional relief for spouses

of nationals of FAS nationals for which Petitioner is qualified.

Without exercise of parole authority by immigration judges and the

Board of Immigration Appeals in cases arising out of the transition from

CNMI to Federal administration and enforcement of immigration authority

in the CNMI, when the Department of Homeland Security fails or refuses to

exercise that authority, the congressional objectives of an orderly transition,

nurturing of the CNMI economy, continued rational use of foreign workers,

furthering the core principles of the U.S. immigration system, avoidance of

adverse effects, and protection of alien workers from abuse cannot be

achieved. See Pub. L. 110-229, title VII § 701, May 8 2008, 122 Stat. 853.

This Court should strike down the artificial barriers the Department of


59

Homeland Security and the Department of Justice have erected to use of that

authority.

V. THE IMMIGRATION JUDGE ABUSED HIS DISCRETION IN DENYING,

DESPITE COUNSEL’S SUBSTANTIAL SHOWING OF GOOD CAUSE, A

SHORT CONTINANCE FOR PETITIONER TO COMPLETE BRIEFING

AND PRESENTATION OF EVIDENCE ON QUESTIONS BEFORE THE

IMMIGRATION COURT AND THUS DENIED PETITIONER DUE

PROCESS OF LAW

As set forth supra at 12, counsel articulated substantial reasons why

he was unable to meet the filing deadline previously set by the Immigration

Judge. Counsel sought only a one-week continuance and only four days to

complete briefing and documentary submissions to the Immigration Court.

See CAR 83-84. Petitioner was prejudiced by the denial of the requested

continuance because the effect was to deny her the ability not only for the

presentation of thorough, clearly articulated legal argument but by

precluding the introduction of evidence to further support her position.

VI. THE BIA’s SUMMARY DISPOSITION OF PETITIONER ERWIN’s

APPEAL VIOLATED DUE PROCESS AND CANNOT STAND

Dismissal of Petitioner’s appeal by a single member of the BIA in a

summary disposition was inappropriate and reversible error. See Montes-

Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007); Garcia-Quintero v.

Gonzales, 455 F.3d 1006, 1012-13 (9th Cir. 2006); Lanza v. Ashcroft, 389

F.3d 917, 932 (9th Cir. 2004). It is unequivocally the law that the BIA errs


60

in streamlining an appeal where, such as here, novel legal questions not

squarely controlled by existing BIA or federal court precedent are present,

or, as here, factual and legal questions that are not insubstantial, or a

complex factual scenario, are presented, or, again as here, the operative facts

and legal issues are potentially applicable to numerous other aliens. See

Chen v. Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir. 2004).

CONCLUSION

For the foregoing reasons, the petition should be granted, the decision

of the Board of Immigration Appeals and the order of removal should be

vacated, and the matter should be remanded to the BIA for entry of an order

terminating proceedings. This Court should also enter declaratory judgment

that Ms. Erwin has been admitted to the United States and is entitled to

continuing benefit of an immigration status equivalent to that which she

enjoyed as the alien spouse of citizen of the Federated States of Micronesia,

which vested under CNMI law. The Court further should enter declaratory

judgment that immigration judges and the Board of Immigration Appeals

have authority to grant discretionary relief pursuant to 8 U.S.C. § 1182(d)(5)

and that such relief is available in any case where an alien is charged as

removable on a ground of inadmissibility or regardless of whether the alien


61

has been previously admitted to the United States or not, at least with respect

to any alien lawfully present in the CNMI as of November 27-28, 2009.

Dated this 7th day of April, 2015.

Respectfully submitted,

/s/ Stephen C. Woodruff (e-filed)

STEPHEN C. WOODRUFF

Attorney for Appellant

P. O. Box 500770

Saipan, MP 96950


62

STATEMENT OF RELATED CASES

The following cases pending in this court and known to petitioner and

his counsel are believed to be related cases on account of involving the same

or similar issues and the same or similar relevant facts:

Guo v. Holder, Court of Appeals No. 13-72936.

Gu v. Holder, Court of Appeals No. 13-72936.

Torculas v. Holder, Court of Appeals No. 13-71997.

Torres v. Holder, Court of Appeals No. 13-70653.

Jin, Quan Bin v. Holder, Court of Appeals No. 13-70415.

Jin, Jing Guo v. Holder, Court of Appeals No. 13-71659.


s/ Stephen C. Woodruff (e-filed)

STEPHEN C. WOODRUFF



63

C.A. No. 14-72325

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUZVIMINDA LOLA ERWIN

Petitioner

v.

ERIC H. HOLDER, Jr., Attorney General

Respondent

Agency No. A200-160-164

Board of Immigration Appeals

CERTIFICATION PURSUANT TO CIRCUIT RULE 32 (a)(7)(C)

___________________________________

Pursuant to Ninth Circuit Rule 32(a)(7)(C), I certify that Petitioner’s

Opening Brief is proportionately spaced, has a typeface of 14 points and

contains 12,737 words.



STEPHEN C. WOODRUFF

Attorney for Petitioner


ADDENDUM


Table of Contents BIA Decision 1

Immigration Judge Decision 4

Statutory Excerpts 12

8 U.S.C. § 1101 12

8 U.S.C. §§ 1181 and 1184 14

8 U.S.C. § 1182 15

8 U.S.C. §§ 1225 and 1226 17

8 U.S.C. § 1229a 18

48 U.S.C. § 1801 20

48 U.S.C. § 1806 24

Consolidated Natural Resources Act

of 2008 (CNRA), Pub. L. 110-2209,

title VII, subtitle A, 122 Stat. 853 31

Regulatory Excerpts 46

8 C.F.R. § 212.5 46

8 C.F.R. § 1003.15 50


,':"_" _"_', __ ' U.S. Department of Justice

ii_) Executive Office for Immigration ReviewBoard of Immigration Appeals':_g Office of the Clerk

JI07 Leesburg Pike, Suite 2000Falls Church, Virginia 20530

ERWIN, LUZVIMINDA LOLA DHSIICE Office of Chief Counsel - HONP.O. Box 506390 595 Ala Moana BoulevardSaipan, MP 96950 Honolulu, HI 96813-4999

Name: ERWIN, LUZVIMINDA LOLA A 200-160-164

Date of this notice: 7/112014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna CartChief Clerk

Enclosure

Panel Members:

Creppy, Michael J.

yungcUserteam: Docket

001


-U.S. Department of Justi_ Decisionof tlieBoardof ImmigrationAppeals' ExecutiveOfficeforImmigrationReview

FailsChurch,V'uginia20530

File: A200 160 164 - Salpan, MP Date: JUL - ! 2014

In re: LUZVIMINDA LOLA ERW1N a.k.a. Luzviminda Dolang Lola

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF DHS: Chandu LateyAssistant Chief Counsel

CHARGE:

Notice: See. 212(a)(6XA)(i), I&N Act [8 U.S.C. § 1182(aX6XA)(i)] -Present without being admired or paroled (not sustained)

See. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7XA)(i)(I)] -Immigrant - no valid immigrant visa or entry document

APPLICATION: Termination; continuance

The respondent appeals the Immigration Judge's September 11, 2012, decision finding herremovable under section 212(a)(TXA)(i)(I) of the Immigration and Nationality Act, 8 U.S.C.§ 1182(a)(TXAXi)(I), and denying her motion for a continuance. We will dismiss the appeal.

We review for dear error the findings of fact, including the determination of credibility,made by the Immigration Judge. 8 C.F.R. § 1003.1(d)(3Xi). We review de novo all other issues,including whether the parties have met the relevant burden of proof, and issues of discretion.S C.F.P,. § 1003.1(dX3Xii).

The respondentisa nativeandcitizenofthePhilippines.Sheismarriedtoa citizenoftheFederatedStatesof Mieronesia,and allegesthat,on thatbasis,she was admittedto theCommonwealth of theNorthernMarianaIslands(CNMI). When theConsolidatedNaturalResourcesAct of2008renderedtheUnitedStatesimmigrationlawsapplicabletotheCNMI, therespondentsoughtparole-in-place.Her applicationwas deniedby theDHS, and shewasultimatelyplacedinremovalproceedings.

The Immigration ,ludge correctly held that he lacked jurisdiction to grant the respondent'srequest for parole under section 212(d)(5)(A) of the Act or to review the DHS's denial of therespondent's application for parole-in-place. "[P]arole authority under section 212(d)(5)(A) ofthe ACt is delegated solely to the Secretary of Homeland Security and is not within thejurisdiction ofthe Immigration Judges or this Board." Matter of Faldez, 25 I&N Dee. 824, 826n.l (BIA2012). Seealso8 C.F.1L §212.5(a).

002


- "_200 160164

Although her situation is unique, the respondent was never admitted to the United Stateswithin the meaning of section 101(a)(13)(A) of the Act, and does not have an immigrant visa orother valid entry document authorizing her admission to the United States. She is, thus,inadmissible as charged under section 212(a)(7XA)(i)(I) of the Act.

The respondent sought no other relief from removal. The Immigration Judge did not depriveher of due process when he denied another continuance. The Immigration Judge set a time limitfor the filing of briefs on the issue of the respondent's removability and the Immigration Court'sauthority to grant parole (Tr. at 16). The respondent did not file a brief within that time, andinstead asked for a short continuance on the day of the hearing. Immigration Judges haveauthority to set filing deadlines, and a document not filed within the time frame set by theImmigration Judge can be deemed waived. Matter of [nteriano-Rosa, 25 I&N Dec. 264(BIA 2010).

Immigration Judges also have broad discretion in granting or denying continuances. 8 C.F.R.§§ 1003.29, 1240.6 (requiring good cause for a continuance). The respondent's counsel indicatedhe was unable to file a brief primarily because of his unexpectedly heavy workload (Tr. at 20-21).No satisfactory explanation was given for the failure to seek an extension of time prior to thehearing date. Under these circumstances, the Immigration Judge did not err in denying the last-minute request for a continuance.

Additionally, the respondent has not shown she was prejudiced by the denial of anothercontinuance because we have determined the Immigration Judge did not have jurisdiction togrant her parole. A "decision denying [a] motion for continuance will not be reversed unless thealien establishes that the denial caused him actual prejudice and harm and materially affected theoutcome of his case." Matter of Sibrun, 18 I&N Dec. 354, 356-57 (BIA 1983).

For these reasons, we will dismiss the appeal.

ORDER: The appeal is dismissed.

003


J ,. /

/ u.s,OEP T T OFJUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

MARINA HEIGHTS II, SUITE 301

SAIPAN, MP 96950

In the Matter of: Case No.: A200-160-164

ERWIN, LUZVIMINDA LOLAIN REMOVAL PROCEEDINGS

RESPONDENT

• ORDER OF THE IMMIGRATION JUDGE

Upon the basis of respondent's admissions, I have determined that the

respondent is subject to removal on the charge(s) in the Notice to Appear.

Respondent has made no application for relief from removal_

It is HEREBY ORDERED that the respondent be removed from the United States "

to PHILIPPINES on the charge(s) contained in the Notice toAppear.

: Any alien against whom a final order• of removal is outstanding by reason ofbeing a member of any of the classes described in INA section 2121a), who

willfully fails or refuses to present himself or herself for removal at the .....

time and place required by the Attorney General shall be fined and/or

imprisoned for up uo ten years. Further, any alien who willfully fails or

_ refuses to depart from the United States pursuant to a final removal order

or present for removal at the time and place required by the Attorney General

shall pay a civil penalty of not more than $500 to the Commissioner for each

day the alien is in violation of this section.

CLARENCE M. WAGNer/Immigration Judge

Date: Sap ii, 2012

Appeal: NO APPEAL _A/I/B)

AppoalEy:CERTIFICATE. OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL_U_PERSONAL SERVICE_B_

TO: [ ] _IE_ i_ )--_IEN clo Custodial Officer _ Alien's ATT/REP_ DHSDATE: . - BY: COURT STAFF _Attac_/nents: ' ] EOIR-33 [ ] EOIR-

28 [ ] Legal Services List [ ] Other

Form EOIR 7 - 4T (REMOVAL Order)

004


Dad

Typewritten Text

_J

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVEOFFICEFORI_IG_TIONREVIEWUNITEDSTATESIMMIG_TIONCOURT

l Saipan_, _-_M_

File: A200-160-164 September II, 2012

In the Matter of

)LUZVIMINDA LOLA ERWIN ) IN REMOVAL PROCEEDINGS

)RESPONDENT )

CHARGES: Section 212(a) (6) (A) (i) and 212(a) (7) (A) (i) (I) of

the Immigration and Nationality Act.

APPLICATIONS:

ON BEHALF OF RESPONDENT: STEPHEN C. WOODRUFF

ON BEHALF OF DHS: CHANDANI LATEY

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent was born on June 2, 1962 and is a

native and citizen of the Philippines. The respondent is

married to a citizen of the Federated States of Micronesia.

The Department of Homeland Security issued a Notice to

Appear to the respondent dated June 14, 2012. This Notice to

Appear was served on the respondent on the June 15, 2012 via

personal service. The Notice to Appear was filed with the

005


Saipan Immigration Court on July 5, 2012. The Notice to Appear

vests jurisdiction with the Saipan Immigration Court. There

have been no issues raised relating to service of the Notice to

Appear. The Notice to Appear alleges that the respondent is not

a citizen or national of the United Sates and that the

respondent is a native of the Philippines and a citizen of the

Philippines. The Notice to Appear further alleges that the

respondent entered the United States at or near an unknown

place, on or about an unknown date, and that the respondent was

not then admitted or paroled after inspection by a United States

Immigration officer. Additionally, the Notice to Appear alleges

that the respondent is an immigrant not in possession of a

valid, unexpired immigrant visa, re-entry permit, border

crossing card, or other valid entry document required by the

Immigration and Nationality Act.

The allegations support the two charges of removal

under Section 212(a)(6)(A)(i)and 212(a) (7) (A) (i) (I) of the

Immigration and Nationality Act. The respondent admitted

factual allegations I, 2 and 4 and denied factual allegations 3

and 5. The Court, after providing the respondent with an

opportunity to file a brief in support of an argument that the

respondent was making relating to removability, found that the

respondent was removable under Section 212(a) (7) (A) (i) (I) of

I Immigration and Nationality Act. The Court sustained

allegation 5 in that the respondent is an immigrant not in

A200-160-164 2 September ii, 2012

006


\. j'

possession of a valid, unexpired immigrant visa, re-entry

permit, border crossing card, or other valid entry documents

required by the Immigration and Nationality Act. The Court

I declined to rule on allegation 3 in the_____Noticeto Appear and

also the first charge of removal lodged in the Notice to Appear.

The respondent presented arguments relating to the

respondent applying for parole in place under Section 212(d) (5).

The respondent previously applied for parole in place with the

Department of Homeland Security and this application was denied.

The Court, upon reviewing the regulations and the Act, was

unable to find any authority that grants this Court jurisdiction

over applications under Section 212(d) (5). The respondent

articulates that there were noprovisions in his research that

he was able to find that prohibit fhe Court from extending

jurisdiction or having jurisdiction over decisions for

applications under Section 212(d) (5).

This Court is a court of limited jurisdiction and

derives its authority from rule, law, or regulation. The Court

is unaware of any rule, law, or regulation that would grant it

authority to rule on an application for 212(d) (5) parole in

place. As such, the Court finds that the respondent is

removable from the United States by clear and convincing

evidence and the Department of Homeland Security has satisfied

their burden. The respondent also alleges that the denial of

the respondent's application for relief under section 212(d) (5)

A200-160-164 3 September iI, 2012

007


is in violation of the respondent's due process rlghts. The

respondent has not provided any law that would support this

position, in fact, the respondent was given an opportunity to

submit briefs, but failed to submit anything with the Court.

I The Court allowed the respondent an opportunity to orally

articulate her position to theCourt. The respondent did so.

Upon hearing the respondent's arguments, the Court is

not persuaded that a due process violation occurred and the

Court finds that it does not have authority, under the Act or

regulations, over determinations made relating to parole in

place under Section 212(d) (5). The respondent has articulated

that she is married to a Federated States of Micronesia citizen,

specifically of the island of Chuuk. The respondent is not

eligible for any relief from removal that the Court was able to

identify.

The Court has considered this case under the analysis

that the United States and the Commonwealth of Northern Mariana

Island signed a covenant to establish a Commonwealth of the

Northern Mariana Islands in political union with the United

States of America, 48 U.S.C. Section 1801-05. Under section

503(a) of the covenant, as originally enacted, the United States i

immigration and naturalization laws do not apply to CNMI. In

2008, Congress passed the Consolidated Natural Resources Act of

2008 (CNRA), which amended the covenant. The CNRA deleted from

the covenant that portion of Section 503(a), which made the

A200-160-164 4 September Ii, 2012

008


United States immigration laws inapplicable to the CNMI. Se____e

CNRA Pub. L.l10-229 Section 702, 122 stat.754, 854-855.

The respondent has indicated that she does not desire

to leave the United States because she is tending to her ill

husband who is a citizen of the Federated States of Micronesia.

The respondent has not articulated any fear or concern that

would render her eligible for withholding of removal and

protection under the Convention Against Torture. Additionally

the respondent would not be eligible for asylum as asylum is not

_available to respondents in the CNMI at this time.

The Court would find that the respondent is

statutorily ineligible for pre-conclusion voluntary departure

and as such would also find that the respondent, after

considering the respondent's hesitancy or reluctance to depart

the United States, is not worthy of the Court granting the

respondent's request for post-conclusion voluntary

departure_ ............._ ........... as a matter of discretion,

specifically, that post-conclusion voluntary departure should

not be granted as a matter of discretion as the respondent has

not indicated a desire to leave the United States.

The Court at this time, therefore, would issue an

A200-160-164 5 September ii, 2012

009


order, ordering that the respondent be removed from the United

States to the Philippines..

Please see the next pm_e for electronla signature

CLARENCE M. WAGNER

Immigration Judge

A200-160-164 6 September Ii, 2012

010


llsll

Inunigration Judge CLARENCE M. WAGNER

wagnerc on February 20, 2013 at 9:46 PM GMT

A200-160-164 7 September ii, 2012

011


8 U.S.C. § 1101

(a) As used in this chapter—

* * *

(4) The term “application for admission” has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa.

* * * (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.

* * *

(15) The term “immigrant” means every alien except an alien who is within one of the

following classes of nonimmigrant aliens—

* * * (L) subject to section 1184 (c)(2) of this title, an alien who, within 3 years preceding

the time of his application for admission into the United States, has been employed

continuously for one year by a firm or corporation or other legal entity or an affiliate or

subsidiary thereof and who seeks to enter the United States temporarily in order to

continue to render his services to the same employer or a subsidiary or affiliate thereof

in a capacity that is managerial, executive, or involves specialized knowledge, and the

alien spouse and minor children of any such alien if accompanying him or following to

join him;

* * *

(R) an alien, and the spouse and children of the alien if accompanying or following to

join the alien, who—

(i) for the 2 years immediately preceding the time of application for admission, has

been a member of a religious denomination having a bona fide nonprofit, religious

organization in the United States; and

(ii) seeks to enter the United States for a period not to exceed 5 years to perform the

work described in subclause (I), (II), or (III) of paragraph (27)(C)(ii);

* * * (18) The term “immigration officer” means any employee or class of employees of the

Service or of the United States designated by the Attorney General, individually or by

regulation, to perform the functions of an immigration officer specified by this chapter

or any section of this title.

012


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* * *

(27) The term “special immigrant” means—

* * *

(C) an immigrant, and the immigrant’s spouse and children if accompanying or

following to join the immigrant, who—

(i) for at least 2 years immediately preceding the time of application for admission, has

been a member of a religious denomination having a bona fide nonprofit, religious

organization in the United States;

* * * (38) The term “United States”, except as otherwise specifically herein provided, when

used in a geographical sense, means the continental United States, Alaska, Hawaii,

Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of

the Northern Mariana Islands.

* * *

013


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8 U.S.C. § 1181

(a) Documents required; admission under quotas before June 30, 1968

Except as provided in subsection (b) and subsection (c) of this section no immigrant

shall be admitted into the United States unless at the time of application for admission

he

(1) has a valid unexpired immigrant visa or was born subsequent to the issuance of

such visa of the accompanying parent, and

(2) presents a valid unexpired passport or other suitable travel document, or document

of identity and nationality, if such document is required under the regulations issued by

the Attorney General. With respect to immigrants to be admitted under quotas of quota

areas prior to June 30, 1968, no immigrant visa shall be deemed valid unless the

immigrant is properly chargeable to the quota area under the quota of which the visa is

issued.

* * *

8 U.S.C. § 1184

* * *

(b) Presumption of status; written waiver

Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of

section 1101 (a)(15) of this title, and other than a nonimmigrant described in any

provision of section 1101 (a)(15)(H)(i) of this title except subclause (b1) of such

section) shall be presumed to be an immigrant until he establishes to the satisfaction of

the consular officer, at the time of application for a visa, and the immigration officers,

at the time of application for admission, that he is entitled to a nonimmigrant status

under section 1101 (a)(15) of this title. An alien who is an officer or employee of any

foreign government or of any international organization entitled to enjoy privileges,

exemptions, and immunities under the International Organizations Immunities Act

[22 U.S.C. 288 et seq.], or an alien who is the attendant, servant, employee, or

member of the immediate family of any such alien shall not be entitled to apply for or

receive an immigrant visa, or to enter the United States as an immigrant unless he

executes a written waiver in the same form and substance as is prescribed by

section 1257 (b) of this title.

* * *

014


https://www.law.cornell.edu/uscode/text/22

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8 U.S.C. § 1182

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the

following paragraphs are ineligible to receive visas and ineligible to be admitted to the

United States:

* * *

(2) Criminal and related grounds

(A) Conviction of certain crimes

(i) In general Except as provided in clause (ii), any alien convicted of, or who admits

having committed, or who admits committing acts which constitute the essential

elements of—

* * *

is inadmissible.

(ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime

if—

(I) the crime was committed when the alien was under 18 years of age, and the crime

was committed (and the alien released from any confinement to a prison or correctional

institution imposed for the crime) more than 5 years before the date of application for a

visa or other documentation and the date of application for admission to the United

States, or

* * *

(6) Illegal entrants and immigration violators

(A) Aliens present without admission or parole

(i) In general An alien present in the United States without being admitted or paroled,

or who arrives in the United States at any time or place other than as designated by the

Attorney General, is inadmissible.

* * *

(7) Documentation requirements

(A) Immigrants

(i) In general Except as otherwise specifically provided in this chapter, any immigrant

at the time of application for admission—

015


(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border

crossing identification card, or other valid entry document required by this chapter, and

a valid unexpired passport, or other suitable travel document, or document of identity

and nationality if such document is required under the regulations issued by the

Attorney General under section 1181 (a) of this title, or

* * *

(B) Nonimmigrants

(i) In general Any nonimmigrant who—

(I) is not in possession of a passport valid for a minimum of six months from the date

of the expiration of the initial period of the alien’s admission or contemplated initial

period of stay authorizing the alien to return to the country from which the alien came

or to proceed to and enter some other country during such period, or

(II) is not in possession of a valid nonimmigrant visa or border crossing identification

card at the time of application for admission, is inadmissible.

* * *

(d) Temporary admission of nonimmigrants

* * *

(5)

(A) The Attorney General may, except as provided in subparagraph (B) or in

section 1184 (f) of this title, in his discretion parole into the United States temporarily

under such conditions as he may prescribe only on a case-by-case basis for urgent

humanitarian reasons or significant public benefit any alien applying for admission to

the United States, but such parole of such alien shall not be regarded as an admission

of the alien and when the purposes of such parole shall, in the opinion of the Attorney

General, have been served the alien shall forthwith return or be returned to the custody

from which he was paroled and thereafter his case shall continue to be dealt with in the

same manner as that of any other applicant for admission to the United States.

(B) The Attorney General may not parole into the United States an alien who is a

refugee unless the Attorney General determines that compelling reasons in the public

interest with respect to that particular alien require that the alien be paroled into the

United States rather than be admitted as a refugee under section 1157 of this title.

* * *

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Dad

Highlight

8 U.S.C. § 1225

(a) Inspection

(1) Aliens treated as applicants for admission

An alien present in the United States who has not been admitted or who arrives in the

United States (whether or not at a designated port of arrival and including an alien who

is brought to the United States after having been interdicted in international or United

States waters) shall be deemed for purposes of this chapter an applicant for admission.

* * *

8 U.S.C. § 1226

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained

pending a decision on whether the alien is to be removed from the United States.

Except as provided in subsection (c) of this section and pending such decision, the

Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and containing conditions

prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an “employment

authorized” endorsement or other appropriate work permit), unless the alien is lawfully

admitted for permanent residence or otherwise would (without regard to removal

proceedings) be provided such authorization.

* * *

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8 U.S.C. § 1229a

(a) Proceeding

(1) In general

An immigration judge shall conduct proceedings for deciding the inadmissibility or

deportability of an alien.

(2) Charges

An alien placed in proceedings under this section may be charged with any applicable

ground of inadmissibility under section 1182 (a) of this title or any applicable ground of

deportability under section 1227 (a) of this title.

* * *

(c) Decision and burden of proof

(1) Decision

(A) In general

At the conclusion of the proceeding the immigration judge shall decide whether an alien is

removable from the United States. The determination of the immigration judge shall be

based only on the evidence produced at the hearing.

(B) Certain medical decisions

* * *

(2) Burden on alien

In the proceeding the alien has the burden of establishing—

(A) if the alien is an applicant for admission, that the alien is clearly and beyond doubt

entitled to be admitted and is not inadmissible under section 1182 of this title; or

(B) by clear and convincing evidence, that the alien is lawfully present in the United States

pursuant to a prior admission.

In meeting the burden of proof under subparagraph (B), the alien shall have access to the

alien’s visa or other entry document, if any, and any other records and documents, not

considered by the Attorney General to be confidential, pertaining to the alien’s admission

or presence in the United States.

(3) Burden on service in cases of deportable aliens

(A) In general

In the proceeding the Service has the burden of establishing by clear and convincing

evidence that, in the case of an alien who has been admitted to the United States, the alien

is deportable. No decision on deportability shall be valid unless it is based upon

reasonable, substantial, and probative evidence.

* * *

018


http://www.law.cornell.edu/uscode/text/8/usc_sec_08_00001182----000-#a

http://www.law.cornell.edu/uscode/text/8/usc_sec_08_00001227----000-#a

(e) Definitions

In this section and section 1229b of this title:

* * *

(2) Removable

The term “removable” means—

(A) in the case of an alien not admitted to the United States, that the alien is inadmissible

under section 1182 of this title, or

(B) in the case of an alien admitted to the United States, that the alien is deportable under

section 1227 of this title.

019


48 U.S.C. § 1801

The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political

Union with the United States of America, the text of which is as follows, is hereby

approved.

note

Section 101. The Northern Mariana Islands upon termination of the Trusteeship

Agreement will become a self-governing commonwealth to be known as the

‘Commonwealth of the Northern Mariana Islands’, in political union with and under the

sovereignty of the United States of America.

Section 102. The relations between the Northern Mariana Islands and the United States

will be governed by this Covenant which, together with those provisions of the

Constitution, treaties and laws of the United States applicable to the Northern Mariana

Islands, will be the supreme law of the Northern Mariana Islands.

Section 103. The people of the Northern Mariana Islands will have the right of local self-

government and will govern themselves with respect to internal affairs in accordance

with a Constitution of their own adoption.

Section 104. The United States will have complete responsibility for and authority with

respect to matters relating to foreign affairs and defense affecting the Northern Mariana

Islands.

Section 105. The United States may enact legislation in accordance with its

constitutional processes which will be applicable to the Northern Mariana Islands, but if

such legislation cannot also be made applicable to the several States the Northern

Mariana Islands must be specifically named therein for it to become effective in the

Northern Mariana Islands. In order to respect the right of self-government guaranteed

by this Covenant the United States agrees to limit the exercise of that authority so that

the fundamental provisions of this Covenant, namely Articles I, II and III and

Sections 501 and 805, may be modified only with the consent of the Government of the

United States and the Government of the Northern Mariana Islands.

* * *

Section 501. (a) To the extent that they are not applicable of their own force, the

following provisions of the Constitution of the United States will be applicable within the

Northern Mariana Islands as if the Northern Mariana Islands were one of the several

States: Article I, Section 9, Clauses 2, 3, and 8; Article I, Section 10, Clauses 1 and 3;

Article IV, Section 1 andSection 2, Clauses 1 and 2; Amendments 1 through 9,

inclusive; Amendment 13; Amendment 14, Section 1; Amendment 15; Amendment 19;

020


https://www.law.cornell.edu/uscode/text/48/1



and Amendment 26; provided, however, that neither trial by jury nor indictment by

grand jury shall be required in any civil action or criminal prosecution based on local

law, except where required by local law. Other provisions of or amendments to the

Constitution of the United States, which do not apply of their own force within the

Northern Mariana Islands, will be applicable within the Northern Mariana Islands only

with approval of the Government of the Northern Mariana Islands and of the

Government of the United States.

(b) The applicability of certain provisions of the Constitution of the United States to the

Northern Mariana Islands will be without prejudice to the validity of and the power of

the Congress of the United States to consent to Sections 203,506 and 805 and the

proviso in Subsection (a) of this Section.

* * *

Section 503. The following laws of the United States, presently inapplicable to the Trust

Territory of the Pacific Islands, will not apply to the Northern Mariana Islands except in

the manner and to the extent made applicable to them by the Congress by law after

termination of the Trusteeship Agreement:

(a) except as otherwise provided in Section 506, the immigration and naturalization

laws of the United States;

(b) except as otherwise provided in Subsection (b) of Section 502, the coastwise laws

of the United States and any prohibition in the laws of the United States against foreign

vessels landing fish or unfinished fish products in the United States; and

(c) the minimum wage provisions of Section 6, Act of June 25, 1938, 52 Stat. 1062, as

amended. (As amended Pub. L. 110–229, title VII, § 702(g)(1)(A),May 8, 2008, 122

Stat. 864.)

* * *

Section 506. (a) Notwithstanding the provisions of Subsection 503(a), upon the

effective date of this Section the Northern Mariana Islands will be deemed to be a part

of the United States under the Immigration and Nationality Act, as amended for the

following purposes only, and the said Act will apply to the Northern Mariana Islands to

the extent indicated in each of the following Subsections of this Section.

(b) With respect to children born abroad to United States citizen or non-citizen national

parents permanently residing in the Northern Mariana Islands the provisions of Section

301 and 308 of the said Act will apply.

(c) With respect to aliens who are immediate relatives (as defined in Subsection 201(b)

of the said Act) of United States citizens who are permanently residing in the Northern

Mariana Islands all the provisions of the said Act will apply, commencing when a claim

021




is made to entitlement to immediate relative status. A person who is certified by the

Government of the Northern Mariana Islands both to have been a lawful permanent

resident of the Northern Mariana Islands and to have had the immediate relative

relationship denoted herein on the effective date of this Section will be presumed to

have been admitted to the United States for lawful permanent residence as of that date

without the requirement of any of the usual procedures set forth in the said Act. For the

purpose of the requirements of judicial naturalization, the Northern Mariana Islands will

be deemed to constitute a State as defined in Subsection 101(a) paragraph (36) of the

said Act. The Courts of record of the Northern Mariana Islands and the District Court for

the Northern Mariana Islands will be included among the courts specified in Subsection

310(a) of the said Act and will have jurisdiction to naturalize persons who become

eligible under this Section and who reside within their respective jurisdictions.

(d) With respect to persons who will become citizens or nationals of the United States

under Article III of this Covenant or under this Section the loss of nationality provisions

of the said Act will apply.

* * *

Section 1003. The provisions of this Covenant will become effective as follows, unless

otherwise specifically provided:

(a) Sections 105, 201–203, 503, 504, 606, 801, 903 and Article X will become effective

on approval of this Covenant;

(b) Sections 102, 103, 204, 304, Article IV, Sections 501, 502, 505, 601–605, 607,

Article VII, Sections 802–805, 901 and 902 will become effective on a date to be

determined and proclaimed by the President of the United States which will be not more

than 180 days after this Covenant and the Constitution of the Northern Mariana Islands

have both been approved; and

(c) The remainder of this Covenant will become effective upon the termination of the

Trusteeship Agreement and the establishment of the Commonwealth of the Northern

Mariana Islands.

[N.B.: The text presented here is the original text of the Covenant. Pub. L. 110–229,

title VII, § 702(g)(1)(B), May 8, 2008, 122 Stat. 864, purported to amend Section 503

and repeal Section 506 of the Covenant. Such amendments and repealers are

inconsistent with the history, structure, and purpose of the Covenant. They also are

wholly unnecessary to achievement of the purposes of the amendatory and repealing

022


acts, as those acts are either explicitly authorized by the Covenant or can be construed

in harmony with it.]

023


48 USC 1806

NB: This unofficial compilation of the U.S. Code is current as of Jan. 5, 2009 (see http://www.law.cornell.edu/uscode/uscprint.html).

- 1 -

TITLE 48 - TERRITORIES AND INSULAR POSSESSIONSCHAPTER 17 - NORTHERN MARIANA ISLANDS

SUBCHAPTER I - APPROVAL OF COVENANT AND SUPPLEMENTAL PROVISIONS

§ 1806. Immigration and transition

(a) Application of the Immigration and Nationality Act and establishment of a transitionprogram

(1) In general

Subject to paragraphs (2) and (3), effective on the first day of the first full month commencing1 year after May 8, 2008 (hereafter referred to as the “transition program effective date”), theprovisions of the “immigration laws” (as defined in section 101(a)(17) of the Immigration andNationality Act (8 U.S.C. 1101 (a)(17))) shall apply to the Commonwealth of the Northern MarianaIslands (referred to in this section as the “Commonwealth”), except as otherwise provided in thissection.(2) Transition period

There shall be a transition period beginning on the transition program effective date and ending onDecember 31, 2014, except as provided in subsections (b) and (d), during which the Secretary ofHomeland Security, in consultation with the Secretary of State, the Attorney General, the Secretaryof Labor, and the Secretary of the Interior, shall establish, administer, and enforce a transitionprogram to regulate immigration to the Commonwealth, as provided in this section (hereafterreferred to as the “transition program”).(3) Delay of commencement of transition period

(A) In general

The Secretary of Homeland Security, in the Secretary’s sole discretion, in consultation with theSecretary of the Interior, the Secretary of Labor, the Secretary of State, the Attorney General,and the Governor of the Commonwealth, may determine that the transition program effectivedate be delayed for a period not to exceed more than 180 days after such date.(B) Congressional notification

The Secretary of Homeland Security shall notify the Congress of a determination undersubparagraph (A) not later than 30 days prior to the transition program effective date.(C) Congressional review

A delay of the transition program effective date shall not take effect until 30 days after thedate on which the notification under subparagraph (B) is made.

(4) Requirement for regulations

The transition program shall be implemented pursuant to regulations to be promulgated, asappropriate, by the head of each agency or department of the United States having responsibilitiesunder the transition program.(5) Interagency agreements

The Secretary of Homeland Security, the Secretary of State, the Secretary of Labor, and theSecretary of the Interior shall negotiate and implement agreements among their agencies toidentify and assign their respective duties so as to ensure timely and proper implementation of theprovisions of this section. The agreements should address, at a minimum, procedures to ensurethat Commonwealth employers have access to adequate labor, and that tourists, students, retirees,and other visitors have access to the Commonwealth without unnecessary delay or impediment.The agreements may also allocate funding between the respective agencies tasked with variousresponsibilities under this section.

024


48 USC 1806


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(6) Certain education funding

In addition to fees charged pursuant to section 286(m) of the Immigration and Nationality Act(8 U.S.C. 1356 (m)) to recover the full costs of providing adjudication services, the Secretary ofHomeland Security shall charge an annual supplemental fee of $150 per nonimmigrant worker toeach prospective employer who is issued a permit under subsection (d) of this section during thetransition period. Such supplemental fee shall be paid into the Treasury of the Commonwealthgovernment for the purpose of funding ongoing vocational educational curricula and programdevelopment by Commonwealth educational entities.(7) Asylum

Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) shall not apply duringthe transition period to persons physically present in the Commonwealth or arriving in theCommonwealth (whether or not at a designated port of arrival), including persons brought to theCommonwealth after having been interdicted in international or United States waters.

(b) Numerical limitations for nonimmigrant workers

An alien, if otherwise qualified, may seek admission to Guam or to the Commonwealth during thetransition program as a nonimmigrant worker under section 101(a)(15)(H) of the Immigration andNationality Act (8 U.S.C. 1101 (a)(15)(H)) without counting against the numerical limitations set forthin section 214(g) of such Act (8 U.S.C. 1184 (g)). This subsection does not apply to any employmentto be performed outside of Guam or the Commonwealth. Not later than 3 years following the transitionprogram effective date, the Secretary of Homeland Security shall issue a report to the Committee onEnergy and Natural Resources and the Committee on the Judiciary of the Senate and the Committee onNatural Resources and the Committee on the Judiciary of the House of Representatives projecting thenumber of asylum claims the Secretary anticipates following the termination of the transition period,the efforts the Secretary has made to ensure appropriate interdiction efforts, provide for appropriatetreatment of asylum seekers, and prepare to accept and adjudicate asylum claims in the Commonwealth.(c) Nonimmigrant investor visas

(1) In general

Notwithstanding the treaty requirements in section 101(a)(15)(E) of the Immigration andNationality Act (8 U.S.C. 1101 (a)(15)(E)), during the transition period, the Secretary ofHomeland Security may, upon the application of an alien, classify an alien as a CNMI-onlynonimmigrant under section 101(a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C.1101 (a)(15)(E)(ii)) if the alien—

(A) has been admitted to the Commonwealth in long-term investor status under theimmigration laws of the Commonwealth before the transition program effective date;(B) has continuously maintained residence in the Commonwealth under long-term investorstatus;(C) is otherwise admissible; and(D) maintains the investment or investments that formed the basis for such long-term investorstatus.

(2) Requirement for regulations

Not later than 60 days before the transition program effective date, the Secretary of HomelandSecurity shall publish regulations in the Federal Register to implement this subsection.

(d) Special provision to ensure adequate employment; Commonwealth only transitionalworkers

An alien who is seeking to enter the Commonwealth as a nonimmigrant worker may be admitted toperform work during the transition period subject to the following requirements:

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48 USC 1806


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(1) Such an alien shall be treated as a nonimmigrant described in section 101(a)(15) of theImmigration and Nationality Act (8 U.S.C. 1101 (a)(15)), including the ability to apply, ifotherwise eligible, for a change of nonimmigrant classification under section 248 of such Act (8U.S.C. 1258) or adjustment of status under this section and section 245 of such Act (8 U.S.C. 1255).(2) The Secretary of Homeland Security shall establish, administer, and enforce a system forallocating and determining the number, terms, and conditions of permits to be issued to prospectiveemployers for each such nonimmigrant worker described in this subsection who would nototherwise be eligible for admission under the Immigration and Nationality Act (8 U.S.C. 1101 etseq.). In adopting and enforcing this system, the Secretary shall also consider, in good faith andnot later than 30 days after receipt by the Secretary, any comments and advice submitted by theGovernor of the Commonwealth. This system shall provide for a reduction in the allocation ofpermits for such workers on an annual basis to zero, during a period not to extend beyond December31, 2014, unless extended pursuant to paragraph 5 of this subsection. In no event shall a permit bevalid beyond the expiration of the transition period. This system may be based on any reasonablemethod and criteria determined by the Secretary of Homeland Security to promote the maximumuse of, and to prevent adverse effects on wages and working conditions of, workers authorizedto be employed in the United States, including lawfully admissible freely associated state citizenlabor. No alien shall be granted nonimmigrant classification or a visa under this subsection unlessthe permit requirements established under this paragraph have been met.(3) The Secretary of Homeland Security shall set the conditions for admission of such analien under the transition program, and the Secretary of State shall authorize the issuance ofnonimmigrant visas for such an alien. Such a visa shall not be valid for admission to the UnitedStates, as defined in section 101(a)(38) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(38)), except admission to the Commonwealth. An alien admitted to the Commonwealth on thebasis of such a visa shall be permitted to engage in employment only as authorized pursuant tothe transition program.(4) Such an alien shall be permitted to transfer between employers in the Commonwealth duringthe period of such alien’s authorized stay therein, without permission of the employee’s currentor prior employer, within the alien’s occupational category or another occupational category theSecretary of Homeland Security has found requires alien workers to supplement the residentworkforce.(5) (A) Not later than 180 days prior to the expiration of the transition period, or any extension

thereof, the Secretary of Labor, in consultation with the Secretary of Homeland Security, theSecretary of Defense, the Secretary of the Interior, and the Governor of the Commonwealth,shall ascertain the current and anticipated labor needs of the Commonwealth and determinewhether an extension of up to 5 years of the provisions of this subsection is necessary toensure an adequate number of workers will be available for legitimate businesses in theCommonwealth. For the purpose of this subparagraph, a business shall not be consideredlegitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any otheractivity that is illegal under Federal or local law. The determinations of whether a business islegitimate and to what extent, if any, it may require alien workers to supplement the residentworkforce, shall be made by the Secretary of Homeland Security, in the Secretary’s solediscretion.(B) If the Secretary of Labor determines that such an extension is necessary to ensure anadequate number of workers for legitimate businesses in the Commonwealth, the Secretaryof Labor may, through notice published in the Federal Register, provide for an additionalextension period of up to 5 years.(C) In making the determination of whether alien workers are necessary to ensure an adequatenumber of workers for legitimate businesses in the Commonwealth, and if so, the number of

026


48 USC 1806


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such workers that are necessary, the Secretary of Labor may consider, among other relevantfactors—

(i) government, industry, or independent workforce studies reporting on the need, or lackthereof, for alien workers in the Commonwealth’s businesses;(ii) the unemployment rate of United States citizen workers residing in theCommonwealth;(iii) the unemployment rate of aliens in the Commonwealth who have been lawfullyadmitted for permanent residence;(iv) the number of unemployed alien workers in the Commonwealth;(v) any good faith efforts to locate, educate, train, or otherwise prepare United Statescitizen residents, lawful permanent residents, and unemployed alien workers alreadywithin the Commonwealth, to assume those jobs;(vi) any available evidence tending to show that United States citizen residents, lawfulpermanent residents, and unemployed alien workers already in the Commonwealth arenot willing to accept jobs of the type offered;(vii) the extent to which admittance of alien workers will affect the compensation,benefits, and living standards of existing workers within those industries and otherindustries authorized to employ alien workers; and(viii) the prior use, if any, of alien workers to fill those industry jobs, and whether theindustry requires alien workers to fill those jobs.

(6) The Secretary of Homeland Security may authorize the admission of a spouse or minor childaccompanying or following to join a worker admitted pursuant to this subsection.

(e) Persons lawfully admitted under the Commonwealth immigration law(1) Prohibition on removal

(A) In general

Subject to subparagraph (B), no alien who is lawfully present in the Commonwealth pursuantto the immigration laws of the Commonwealth on the transition program effective dateshall be removed from the United States on the grounds that such alien’s presence in theCommonwealth is in violation of section 212(a)(6)(A) of the Immigration and Nationality Act(8 U.S.C. 1182 (a)(6)(A)), until the earlier of the date—

(i) of the completion of the period of the alien’s admission under the immigration lawsof the Commonwealth; or(ii) that is 2 years after the transition program effective date.

(B) Limitations

Nothing in this subsection shall be construed to prevent or limit the removal undersubparagraph 212(a)(6)(A) of the Immigration and Nationality Act (8 U.S.C. 1182 (a)(6)(A))of such an alien at any time, if the alien entered the Commonwealth after May 8, 2008, and theSecretary of Homeland Security has determined that the Government of the Commonwealthhas violated section 702(i) of the Consolidated Natural Resources Act of 2008.

(2) Employment authorization

An alien who is lawfully present and authorized to be employed in the Commonwealthpursuant to the immigration laws of the Commonwealth on the transition program effective dateshall be considered authorized by the Secretary of Homeland Security to be employed in theCommonwealth until the earlier of the date—

(A) of expiration of the alien’s employment authorization under the immigration laws of theCommonwealth; or(B) that is 2 years after the transition program effective date.

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48 USC 1806


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(3) Registration

The Secretary of Homeland Security may require any alien present in the Commonwealth onor after the transition period effective date to register with the Secretary in such a manner, andaccording to such schedule, as he may in his discretion require. Paragraphs (1) and (2) of thissubsection shall not apply to any alien who fails to comply with such registration requirement.Notwithstanding any other law, the Government of the Commonwealth shall provide to theSecretary all Commonwealth immigration records or other information that the Secretary deemsnecessary to assist the implementation of this paragraph or other provisions of the ConsolidatedNatural Resources Act of 2008. Nothing in this paragraph shall modify or limit section 262 ofthe Immigration and Nationality Act (8 U.S.C. 1302) or other provision of the Immigration andNationality Act [8 U.S.C. 1101 et seq.] relating to the registration of aliens.(4) Removable aliens

Except as specifically provided in paragraph (1)(A) of this subsection, nothing in this subsectionshall prohibit or limit the removal of any alien who is removable under the Immigration andNationality Act.(5) Prior orders of removal

The Secretary of Homeland Security may execute any administratively final order of exclusion,deportation or removal issued under authority of the immigration laws of the United States before,on, or after the transition period effective date, or under authority of the immigration laws of theCommonwealth before the transition period effective date, upon any subject of such order foundin the Commonwealth on or after the transition period effective date, regardless whether the alienhas previously been removed from the United States or the Commonwealth pursuant to such order.

(f) Effect on other laws

The provisions of this section and of the immigration laws, as defined in section 101(a)(17) of theImmigration and Nationality Act (8 U.S.C. 1101 (a)(17)), shall, on the transition program effective date,supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admissionof aliens and the removal of aliens from the Commonwealth.(g) Accrual of time for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act

No time that an alien is present in the Commonwealth in violation of the immigration laws of theCommonwealth shall be counted for purposes of inadmissibility under section 212(a)(9)(B) of theImmigration and Nationality Act (8 U.S.C. 1182 (a)(9)(B)).(h) Report on nonresident guestworker population

The Secretary of the Interior, in consultation with the Secretary of Homeland Security, and the Governorof the Commonwealth, shall report to the Congress not later than 2 years after May 8, 2008. The reportshall include—

(1) the number of aliens residing in the Commonwealth;(2) a description of the legal status (under Federal law) of such aliens;(3) the number of years each alien has been residing in the Commonwealth;(4) the current and future requirements of the Commonwealth economy for an alien workforce;and(5) such recommendations to the Congress, as the Secretary may deem appropriate, related towhether or not the Congress should consider permitting lawfully admitted guest workers lawfullyresiding in the Commonwealth on May 8, 2008, to apply for long-term status under the immigrationand nationality laws of the United States.

(Pub. L. 94–241, § 6, as added Pub. L. 110–229, title VII, § 702(a), May 8, 2008, 122 Stat. 854.)

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References in Text

The Immigration and Nationality Act, referred to in subsecs. (a), (d)(2), and (e)(3), (4), is act June 27, 1952, ch. 477, 66Stat. 163, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality. For completeclassification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables.

The Consolidated Natural Resources Act of 2008, referred to in subsec. (e)(1)(B), (3), is Pub. L. 110–229, May 8,2008, 122 Stat. 754. Section 702(i) of the Act is set out as a note under this section. For complete classification of thisAct to the Code, see Short Title of 2008 Amendment note set out under section 1 of Title 16, Conservation, and Tables.

Effective Date

Pub. L. 110–229, title VII, § 705, May 8, 2008, 122 Stat. 867, provided that:

“(a) In General.—Except as specifically provided in this section or otherwise in this subtitle [subtitle A (§§ 701–705)of title VII of Pub. L. 110–229, enacting this section and sections 1807 and 1808 of this title, amending section 1804 ofthis title and sections 1101, 1158, 1182, 1184, and 1225 of Title 8, Immigration and Nationality, enacting provisionsset out as notes under this section, section 1801 of this title, and section 1182 of Title 8, and amending provisions setout as notes under section 1801 of this title], this subtitle and the amendments made by this subtitle shall take effecton the date of enactment of this Act [May 8, 2008].

“(b) Amendments to the Immigration and Nationality Act.—The amendments to the Immigration and Nationality Act[8 U.S.C. 1101 et seq.] made by this subtitle [amending sections 1101, 1158, 1182, 1184, and 1225 of Title 8], andother provisions of this subtitle applying the immigration laws (as defined in section 101(a)(17) of Immigration andNationality Act (8 U.S.C. 1101 (a)(17))) to the Commonwealth, shall take effect on the transition program effectivedate described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by section 702 (a)), unless specificallyprovided otherwise in this subtitle.

“(c) Construction.—Nothing in this subtitle or the amendments made by this subtitle shall be construed to make anyresidence or presence in the Commonwealth before the transition program effective date described in section 6 ofPublic Law 94–241 [48 U.S.C. 1806] (as added by section 702 (a)) residence or presence in the United States, exceptthat, for the purpose only of determining whether an alien lawfully admitted for permanent residence (as defined insection 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(20))) has abandoned or lost such statusby reason of absence from the United States, such alien’s presence in the Commonwealth before, on, or after the dateof enactment of this Act [May 8, 2008] shall be considered to be presence in the United States.”

Congressional Intent

Pub. L. 110–229, title VII, § 701, May 8, 2008, 122 Stat. 853, provided that:

“(a) Immigration and Growth.—In recognition of the need to ensure uniform adherence to long-standing fundamentalimmigration policies of the United States, it is the intention of the Congress in enacting this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above]—

“(1) to ensure that effective border control procedures are implemented and observed, and that national security andhomeland security issues are properly addressed, by extending the immigration laws (as defined in section 101(a)(17)of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(17)), to apply to the Commonwealth of the Northern MarianaIslands (referred to in this subtitle as the ‘Commonwealth’), with special provisions to allow for—

“(A) the orderly phasing-out of the nonresident contract worker program of the Commonwealth; and

“(B) the orderly phasing-in of Federal responsibilities over immigration in the Commonwealth; and

“(2) to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out theCommonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for futureeconomic and business growth by—

“(A) encouraging diversification and growth of the economy of the Commonwealth in accordance with fundamentalvalues underlying Federal immigration policy;

“(B) recognizing local self-government, as provided for in the Covenant To Establish a Commonwealth of the NorthernMariana Islands in Political Union With the United States of America through consultation with the Governor of theCommonwealth;

“(C) assisting the Commonwealth in achieving a progressively higher standard of living for citizens of theCommonwealth through the provision of technical and other assistance;

“(D) providing opportunities for individuals authorized to work in the United States, including citizens of the freelyassociated states; and

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“(E) providing a mechanism for the continued use of alien workers, to the extent those workers continue to be necessaryto supplement the Commonwealth’s resident workforce, and to protect those workers from the potential for abuse andexploitation.

“(b) Avoiding Adverse Effects.—In recognition of the Commonwealth’s unique economic circumstances, history, andgeographical location, it is the intent of the Congress that the Commonwealth be given as much flexibility as possiblein maintaining existing businesses and other revenue sources, and developing new economic opportunities, consistentwith the mandates of this subtitle. This subtitle, and the amendments made by this subtitle, should be implementedwherever possible to expand tourism and economic development in the Commonwealth, including aiding prospectivetourists in gaining access to the Commonwealth’s memorials, beaches, parks, dive sites, and other points of interest.”

Reports

Pub. L. 110–229, title VII, § 702(h)(1), (2), May 8, 2008, 122 Stat. 864, provided that:

“(1) In general.—Not later than March 1 of the first year that is at least 2 full years after the date of enactmentof this subtitle [May 8, 2008], and annually thereafter, the President shall submit to the Committee on Energy andNatural Resources and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and theCommittee on the Judiciary of the House of Representatives a report that evaluates the overall effect of the transitionprogram established under section 6 [48 U.S.C. 1806] of the Joint Resolution entitled ‘A Joint Resolution to approvethe “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the UnitedStates of America”, and for other purposes’, approved March 24, 1976 (Public Law 94–241), as added by subsection(a), and the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on the Commonwealth.

“(2) Contents.—In addition to other topics otherwise required to be included under this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above] or the amendments made by thissubtitle, each report submitted under paragraph (1) shall include a description of the efforts that have been undertakenduring the period covered by the report to diversify and strengthen the local economy of the Commonwealth, includingefforts to promote the Commonwealth as a tourist destination. The report by the President shall include an estimatefor the numbers of nonimmigrant workers described under section 101(a)(15)(H) of the Immigration and NationalityAct (8 U.S.C. 1101 (a)(15)(H)) necessary to avoid adverse economic effects in Guam and the Commonwealth.”

Pub. L. 110–229, title VII, § 702(h)(4), May 8, 2008, 122 Stat. 865, provided that:

“(4) Reports by the Local Government.—The Governor of the Commonwealth may submit an annual report to thePresident on the implementation of this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see EffectiveDate note set out above], and the amendments made by this subtitle, with recommendations for future changes. ThePresident shall forward the Governor’s report to the Congress with any Administration comment after an appropriateperiod of time for internal review, provided that nothing in this paragraph shall be construed to require the Presidentto provide any legislative recommendation to the Congress.”

Required Actions Prior to Transition Program Effective Date

Pub. L. 110–229, title VII, § 702(i), May 8, 2008, 122 Stat. 866, provided that:

“During the period beginning on the date of enactment of this Act [May 8, 2008] and ending on the transitionprogram effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by subsection (a)),the Government of the Commonwealth shall—

“(1) not permit an increase in the total number of alien workers who are present in the Commonwealth as of the dateof enactment of this Act [May 8, 2008]; and

“(2) administer its nonrefoulement protection program—

“(A) according to the terms and procedures set forth in the Memorandum of Agreement entered into between theCommonwealth of the Northern Mariana Islands and the United States Department of Interior, Office of Insular Affairs,executed on September 12, 2003 (which terms and procedures, including but not limited to funding by the Secretaryof the Interior and performance by the Secretary of Homeland Security of the duties of ‘Protection Consultant’ to theCommonwealth, shall have effect on and after the date of enactment of this Act [May 8, 2008]), as well as CNMIPublic Law 13–61 and the Immigration Regulations Establishing a Procedural Mechanism for Persons RequestingProtection from Refoulement; and

“(B) so as not to remove or otherwise effect the involuntary return of any alien whom the Protection Consultant hasdetermined to be eligible for protection from persecution or torture.”

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8 C.F.R. § 212.5

§212.5 Parole of aliens into the United States.

(a) The authority of the Secretary to continue an alien in custody or grant parole under section 212(d)(5)(A) of the Act shall be exercised by the Assistant Commissioner, Office of Field Operations; Director, Detention and Removal; directors of field operations; port directors; special agents in charge; deputy special agents in charge; associate special agents in charge; assistant special agents in charge; resident agents in charge; field office directors; deputy field office directors; chief patrol agents; district directors for services; and those other officials as may be designated in writing, subject to the parole and detention authority of the Secretary or his designees. The Secretary or his designees may invoke, in the exercise of discretion, the authority under section 212(d)(5)(A) of the Act.

(b) The parole of aliens within the following groups who have been or are detained in accordance with §235.3(b) or (c) of this chapter would generally be justified only on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit,” provided the aliens present neither a security risk nor a risk of absconding:

(1) Aliens who have serious medical conditions in which continued detention would not be appropriate;

(2) Women who have been medically certified as pregnant;

(3) Aliens who are defined as juveniles in §236.3(a) of this chapter. The Director, Detention and Removal; directors of field operations; field office directors; deputy field office directors; or chief patrol agents shall follow the guidelines set forth in §236.3(a) of this chapter and paragraphs (b)(3)(i) through (iii) of this section in determining under what conditions a juvenile should be paroled from detention:

(i) Juveniles may be released to a relative (brother, sister, aunt, uncle, or grandparent) not in Service detention who is willing to sponsor a minor and the minor may be released to that relative notwithstanding that the juvenile has a relative who is in detention.

(ii) If a relative who is not in detention cannot be located to sponsor the minor, the minor may be released with an accompanying relative who is in detention.

(iii) If the Service cannot locate a relative in or out of detention to sponsor the minor, but the minor has identified a non-relative in detention who accompanied him or her on arrival, the question of releasing the minor and the accompanying non-relative adult shall be addressed on a case-by-case basis;

(4) Aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or

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(5) Aliens whose continued detention is not in the public interest as determined by those officials identified in paragraph (a) of this section.

(c) In the case of all other arriving aliens, except those detained under §235.3(b) or (c) of this chapter and paragraph (b) of this section, those officials listed in paragraph (a) of this section may, after review of the individual case, parole into the United States temporarily in accordance with section 212(d)(5)(A) of the Act, any alien applicant for admission, under such terms and conditions, including those set forth in paragraph (d) of this section, as he or she may deem appropriate. An alien who arrives at a port-of-entry and applies for parole into the United States for the sole purpose of seeking adjustment of status under section 245A of the Act, without benefit of advance authorization as described in paragraph (f) of this section shall be denied parole and detained for removal in accordance with the provisions of §235.3(b) or (c) of this chapter. An alien seeking to enter the United States for the sole purpose of applying for adjustment of status under section 210 of the Act shall be denied parole and detained for removal under §235.3(b) or (c) of this chapter, unless the alien has been recommended for approval of such application for adjustment by a consular officer at an Overseas Processing Office.

(d) Conditions. In any case where an alien is paroled under paragraph (b) or (c) of this section, those officials listed in paragraph (a) of this section may require reasonable assurances that the alien will appear at all hearings and/or depart the United States when required to do so. Not all factors listed need be present for parole to be exercised. Those officials should apply reasonable discretion. The consideration of all relevant factors includes:

(1) The giving of an undertaking by the applicant, counsel, or a sponsor to ensure appearances or departure, and a bond may be required on Form I-352 in such amount as may be deemed appropriate;

(2) Community ties such as close relatives with known addresses; and

(3) Agreement to reasonable conditions (such as periodic reporting of whereabouts).

(e) Termination of parole—(1) Automatic. Parole shall be automatically terminated without written notice (i) upon the departure from the United States of the alien, or, (ii) if not departed, at the expiration of the time for which parole was authorized, and in the latter case the alien shall be processed in accordance with paragraph (e)(2) of this section except that no written notice shall be required.

(2)(i) On notice. In cases not covered by paragraph (e)(1) of this section, upon accomplishment of the purpose for which parole was authorized or when in the opinion of one of the officials listed in paragraph (a) of this section, neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be

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restored to the status that he or she had at the time of parole. When a charging document is served on the alien, the charging document will constitute written notice of termination of parole, unless otherwise specified. Any further inspection or hearing shall be conducted under section 235 or 240 of the Act and this chapter, or any order of exclusion, deportation, or removal previously entered shall be executed. If the exclusion, deportation, or removal order cannot be executed within a reasonable time, the alien shall again be released on parole unless in the opinion of the official listed in paragraph (a) of this section the public interest requires that the alien be continued in custody.

(ii) An alien who is granted parole into the United States after enactment of the Immigration Reform and Control Act of 1986 for other than the specific purpose of applying for adjustment of status under section 245A of the Act shall not be permitted to avail him or herself of the privilege of adjustment thereunder. Failure to abide by this provision through making such an application will subject the alien to termination of parole status and institution of proceedings under sections 235 and 236 of the Act without the written notice of termination required by §212.5(e)(2)(i) of this chapter.

(iii) Any alien granted parole into the United States so that he or she may transit through the United States in the course of removal from Canada shall have his or her parole status terminated upon notice, as specified in 8 CFR 212.5(e)(2)(i), if he or she makes known to an immigration officer of the United States a fear of persecution or an intention to apply for asylum. Upon termination of parole, any such alien shall be regarded as an arriving alien, and processed accordingly by the Department of Homeland Security.

(f) Advance authorization. When parole is authorized for an alien who will travel to the United States without a visa, the alien shall be issued an appropriate document authorizing travel.

(g) Parole for certain Cuban nationals. Notwithstanding any other provision respecting parole, the determination whether to release on parole, or to revoke the parole of, a native of Cuba who last came to the United States between April 15, 1980, and October 20, 1980, shall be governed by the terms of §212.12.

(h) Effect of parole of Cuban and Haitian nationals. (1) Except as provided in paragraph (h)(2) of this section, any national of Cuba or Haiti who was paroled into the United States on or after October 10, 1980, shall be considered to have been paroled in the special status for nationals of Cuba or Haiti, referred to in section 501(e)(1) of the Refugee Education Assistance Act of 1980, Public Law 96-422, as amended (8 U.S.C. 1522 note).

(2) A national of Cuba or Haiti shall not be considered to have been paroled in the special status for nationals of Cuba or Haiti, referred to in section 501(e)(1) of the Refugee Education Assistance Act of 1980, Public Law 96-422, as amended, if the individual was paroled into the United States:

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(i) In the custody of a Federal, State or local law enforcement or prosecutorial authority, for purposes of criminal prosecution in the United States; or

(ii) Solely to testify as a witness in proceedings before a judicial, administrative, or legislative body in the United States.

[47 FR 30045, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982; 52 FR 16194, May 1, 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450, May 17, 1988; 61 FR 36611, July 12, 1996; 62 FR 10348, Mar. 6, 1997; 65 FR 80294, Dec. 21, 2000; 65 FR 82255, Dec. 28, 2000; 67 FR 39257, June 7, 2002; 68 FR 35152, June 12, 2003; 69 FR 69489, Nov. 29, 2004; 76 FR 53787, Aug. 29, 2011]

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8 C.F.R § 1003.15

§ 1003.15 Contents of the order to show cause and notice to appear and

notification of change of address.

* * * (b) The Order to Show Cause and Notice to Appear must also include the following information: (1) The nature of the proceedings against the alien; (2) The legal authority under which the proceedings are conducted; (3) The acts or conduct alleged to be in violation of law; (4) The charges against the alien and statutory provisions alleged to have been violated; (5) Notice that the alien may be represented, at no cost to the government, by counsel or other representative authorized to appear pursuant to 8 CFR 1292.1; (6) The address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Appear; and (7) A statement that the alien must advise the Immigration Court having administrative control over the Record of Proceeding of his or her current address and telephone number and a statement that failure to provide such information may result in an in absentia hearing in accordance with § 1003.26 .

* * *

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CERTIFICATE OF SERVICE

I certify that on the 8th day of April, 2015, I served a copy of the

foregoing PETITIONER’S OPENING BRIEF on Appellees’ counsel of

record through the Court’s electronic CM/ECF system.


STEPHEN C. WOODRUFF



PETITIONER’S OPENING BRIEF...TO COMPLETE BRIEFING AND PRESENTATION OF EVIDENCE ON QUESTIONS BEFORE...

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