A. JURISDICTION OF THE COURT
This Court has jurisdiction to entertain habeas corpus petitions of excludable aliens. 8 U.S.C. § 1105a(b).
"For a habeas corpus proceeding the alien must be detained or at the least be in technical custody." Brownell v. Tom We Shung, 352 U.S. 180, 183, 1 L. Ed. 2d 225, 77 S. Ct. 252 (1956).
Petitioner is not currently being detained by the United States government. He is, however, currently under a deportation order and has exhausted his administrative remedies. The Ninth Circuit has held that where administrative remedies have been exhausted and an alien is subject to immediate deportation, there is "sufficient immediacy of action and interference with freedom to support habeas corpus jurisdiction," even if the petitioner is not in actual INS custody. Flores v. INS, 524 F.2d 627, 629 (9th Cir. 1975). Thus, petitioner is in "technical custody" for the purpose of a habeas corpus action, and this Court has jurisdiction to adjudicate his petition.
B. THE DISTINCTION BETWEEN DEPORTABLE ALIENS AND EXCLUDABLE ALIENS
The United states immigration laws have long distinguished between deportable aliens and excludable aliens. See Leng May Ma v. Barber, 357 U.S. 185, 187, 2 L. Ed. 2d 1246, 78 S. Ct. 1072 (1958). A deportable alien is one who has entered the country;
an excludable alien is one who seeks to enter the country. See Ramirez-Durazo v. INS, 794 F.2d 491, 495 (9th Cir. 1986).
Aliens who have entered the country "irrespective of legality" have "additional rights and privileges" not granted to aliens who are on the threshold of entry. Leng May Ma, 357 U.S. at 187. In contrast, aliens "who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry . . . ." 8 U.S.C. § 1225(b).
Under a procedure known as "parole," an alien may be allowed into the country temporarily, until an exclusion hearing can be held. "Such parole of [an] alien shall not be regarded as an admission of the alien . . ." 8 U.S.C. § 1182(d)(5)(A).
Since there has been no official entry, an excludable alien does not "acquire the procedural protections afforded a deportable alien." Gallego v. INS, 674 F. Supp. 280, 286 n.9 (W.D. Wis. 1987). "An alien who has been paroled into the United States is treated the same as one who has only just arrived." Alvarez-Mendez v. Stock, 941 F.2d 956, 963 (9th Cir. 1991) (aliens have no right to a hearing before their parole is revoked).
Petitioner was paroled into the United States. He is thus an excludable alien who is not deemed to have entered the country despite his physical presence.
C. THE DISTRICT DIRECTOR'S DENIAL OF PETITIONER'S APPLICATION FOR ADJUSTMENT WAS NOT IMPROPER
On March 15, 1994, Acting INS District Director for San Francisco Philip Waters denied petitioner's application for adjustment of status to permanent resident. The Director found that due to the petitioner's purchase and use of a counterfeit Alien Registration Card, the applicant was "inadmissible on the grounds of misrepresentation, as provided within the exclusion provisions of Section 212(a)(6)(C)(i) of the INA." (AR-III at 75). Although the INA allows for the consideration of a waiver of excludability, § 212(i), the Director found that, while petitioner had filed an application for a waiver in 1992 which was denied, no waiver had been filed in the present case. The application for adjustment of status was thus denied for statutory ineligibility.
1. LEGAL STANDARD
The Ninth Circuit has held that where the INS determines that an alien is statutorily ineligible for adjustment of status, that finding is reviewed under the substantial evidence test, not the abuse of discretion standard. Jin Soo Lee v. INS, 541 F.2d 1383, 1385 (9th Cir. 1976); accord Manzo-Fontes v. INS, 53 F.3d 280 (9th Cir. 1995) (adopting substantial evidence test in registry proceedings, and citing Lee). Under that standard, this Court may overrule such a determination "where a finding required by the statute is unsupported by reasonable, substantial or probative evidence." Id. (quoting Kasravi v. INS, 400 F.2d 675, 677 n.3 (9th Cir. 1968).).
2. APPLICATION OF THE SUBSTANTIAL EVIDENCE STANDARD
In denying petitioner's application for adjustment of status, the Director made two findings: (1) that petitioner was statutorily excludable on the grounds of misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i) and (2) that petitioner was not entitled to receive a waiver of excludability under 8 U.S.C. § 1182(i) because petitioner did not file a Form I-601, Application for Waiver of Grounds of Excludability, in conjunction with his application for adjustment of status.
(a) Petitioner is statutorily excludable
Section 212(a)(6)(C)(i) of the INA, 8 U.S.C. § 1182(a)(6)(C)(i) provides that:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States ... is excludable.