The opinion of the court was delivered by: D. LOWELL JENSEN
Petitioner seeks habeas corpus review of a Board of Immigration Appeals' ["BIA"] order of exclusion. On November 24, 1993, the Court heard respondent's motion for summary judgment. Alberto E. Gonzalez, Special Assistant United States Attorney, appeared on behalf of respondent. Jonathan Scop appeared on behalf of petitioner. Having considered the papers submitted, the applicable law, the arguments of counsel, and the entire record herein, the Court DENIES respondent's motion for summary judgment and GRANTS petitioner's request for writ of habeas corpus for the following reasons.
Petitioner is a fifty-five year old native and citizen of Mexico who first entered the United States without inspection in 1957. Petitioner has made numerous trips to and from Mexico since his first entry, and has re-entered the United States each time without inspection. Petitioner has resided in the United States continuously since 1971.
Petitioner works as a baker, and has been a member of the local bakery and confectionery union since 1971. He is currently employed full-time as a baker for Safeway Stores in Sunnyvale, CA, and has also worked for Adeline Bake Shop of San Francisco and Golden Crescent Bakery in Palo Alto.
On March 7, 1985, petitioner was apprehended by the INS while he was at work at the Pisano French Baking Company in Redwood City. Petitioner accepted administrative voluntary return to Mexico without a hearing, and was returned to Mexico the same day. At that time petitioner was living in San Francisco with his brother. Petitioner did not intend to abandon his residence or job in the United States, but instead planned to return in two weeks after visiting family in Mexico.
Petitioner contracted tuberculosis in Mexico, and was unable to return to San Francisco as planned. Petitioner re-entered the United States without inspection nineteen months later, in October 1986. Petitioner returned to his former residence in San Francisco and resumed work with Adeline Bake Shop.
Over two years later petitioner's application for registry was still pending. Petitioner needed to return to Mexico briefly to assist his mother in property transactions. Although he had made numerous trips to and from Mexico previously without inspection, petitioner contacted the INS before leaving so that he could make the journey under lawful procedures.
On July 2, 1990 the INS district director granted petitioner advance parole
and issued him a Form I-512. The Form I-512 given petitioner contained the following statement in the "Remarks" section:
If your application for Adjustment of Status is denied, you will be subject to exclusion proceedings, under Section 236 of the Immigration and Nationality Act. Individual is to be paroled into the United States for an indefinite period of time providing prima facie eligibility for adjustment of status continues.
Petitioner accepted the grant of advance parole without guidance of counsel, and without advisement by INS officials about exclusion, deportation, or the consequences of accepting advance parole.
Petitioner spent two months in Mexico, and was paroled into the United States in September, 1990. On August 9, 1991, the district director denied petitioner's application for registry due to his nineteen month absence from the country in 1985-1986. Petitioner's parole was subsequently revoked and the INS commenced exclusion proceedings against him, rather than deportation proceedings, which normally follow ...