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THANH LONG LE v. WATERS

August 18, 1994

THANH LONG LE and ANGELIQUE LE, Petitioners,
v.
PHILIP L. WATERS, Acting Director, United States Immigration and Naturalization Service, San Francisco, Respondent.



The opinion of the court was delivered by: MARILYN HALL PATEL

 Petitioners Thanh Long Le and his daughter Angelique Le have filed a petition for a writ of habeas corpus seeking an order that the October 4, 1993 decision of the Board of Immigration Appeal (BIA) is in error as a matter of law. The BIA found that petitioners abandoned their applications for adjustment of status when they left the United States without authorization, and that therefore they could not be readmitted. This court has jurisdiction over this matter pursuant to 8 U.S.C. § 1105a(b) and 28 U.S.C. § 2241.

 Having considered the parties' submissions and arguments, and for the reasons set forth below, the court now enters the following memorandum and order.

 BACKGROUND

 The facts relevant to this petition are not in dispute. *fn1" petitioner Than Long Le is a native citizen of Vietnam who came to the United States for the first time in 1985 to visit his mother, a lawful permanent resident of this country. Petitioner Angelique Le, his daughter, was born in France and accompanied him to the United States in 1985. Also with petitioners was Francoise Boisson, Angelique's mother. Boisson is not a petitioner here.

 Shortly after their arrival, Than Long and Angelique Le applied for status as lawful permanent residents of the United States pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1255. In May 1987, while their applications were still pending before the Immigration and Naturalization Service (INS), petitioners returned to France. According to petitioners, Boisson had developed a serious medical problem and sought treatment in France, and petitioners wanted to be with her during her treatment.

 While petitioners were in France, the INS approved their applications for permanent resident status in September 1987. The INS sent petitioners' alien registration cards ("green cards") to their address in the United States. Than Long Le's mother forwarded the cards to petitioners in France.

 When petitioners returned to the United States in September 1988, they presented their green cards and requested admission as lawful permanent residents. The INS refused to admit them on the ground that the cards had been issued in error, since petitioners had left the country during the pendency of their applications.

 Following a hearing to determine petitioners' eligibility for admission, an immigration judge determined that their green cards were valid and had been properly approved and that therefore petitioners should be admitted to the country. She held that the applicable statutes and regulations permitted, but did not compel, the INS to deny the applications on the basis of petitioners' departure from the country. She further ruled that the INS had not in fact employed this reason for denial.

 The BIA reversed, holding that the statutes and regulations mandated that the unauthorized departure to France terminated petitioners' applications. As a result, the Board ordered petitioners excluded from the United States.

 LEGAL STANDARD

 The parties agree that the issue before the court is purely a legal question. The BIA's determination of such questions is reviewed de novo by the court. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

 DISCUSSIO ...


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