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SHARMA v. RENO

September 29, 1995

RAVINDER KUMAR SHARMA, Petitioner,
v.
JANET RENO, UNITED STATES ATTORNEY GENERAL, and THOMAS SCHILTGEN, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondents.



The opinion of the court was delivered by: ARMSTRONG

 Ravinder Kumar Sharma ("petitioner"), a citizen of the United Kingdom, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and sections 106(a)(10) and 106(b) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 11051(10), 1105a(b). Petitioner seeks review of a determination by the Immigration and Naturalization Service District Director ("Director") that he is ineligible for adjustment of status under 8 U.S.C. § 1255(a), INA § 245(a), and of a decision of the Board of Immigration Appeals ("BIA") denying (1) petitioner's request to renew his application for adjustment in his exclusion hearing, and (2) petitioner's request to voluntarily withdraw his application for admission to the United States. After having read and considered the papers submitted by each party the Court finds that neither the Director nor the BIA erred by finding that the petitioner was ineligible for adjustment of status or by refusing his request for voluntary withdrawal of his application. *fn1"

 BACKGROUND

 Petitioner, a citizen of the United Kingdom, first entered the United States in July, 1984, as a B-1 visitor for business. He obtained a job with Interactive Transportation Systems ("ITS"), and the Immigration and Naturalization Service ("INS") granted him a change of status to H-1 non-immigrant temporary worker, valid until January 10, 1987, permitting him to work for ITS. However, in February 1985, petitioner left ITS and purchased his current business, Marble Palace, which manufactures and installs bathroom fixtures. Marble Palace currently employs petitioner, his wife, and twelve workers.

 Petitioner never informed the INS that he had left the employ of ITS. In 1986 the INS became aware that petitioner was no longer working for ITS and instituted deportation proceedings. Petitioner was granted voluntary departure in lieu of deportation, and left the United States in 1987.

 After twice being denied a visa to reenter the United States, petitioner entered illegally and continued to operate Marble Palace. In 1988 petitioner left for the United Kingdom to divorce his wife. He then flew to Canada and married his current wife Christine George, a United States citizen. Petitioner attempted to enter the United States posing as a United States citizen, but his British passport was discovered and he was refused entry. He later entered the United States without inspection and resumed operation of his business with his new wife.

 In 1990 the INS again initiated deportation proceedings against petitioner for entry without inspection. Petitioner again requested and obtained permission to voluntarily depart the country. Petitioner applied for a visa in England, but was determined to be excludable because he had falsely represented himself as a United States citizen in 1988. His application for a waiver of excludability, based on his marriage to a U.S. citizen, was also denied. In May 1991 petitioner reentered the United States without inspection. In 1992 petitioner paid more than $ 13,000 to obtain a false alien registration card.

 The events leading to the exclusion proceedings which underlie this petition began on September 10, 1993. While returning from a business trip to China, petitioner attempted to enter the United States at San Francisco, California, by presenting his counterfeit alien registration card. Petitioner was paroled into the United States for delayed inspection. *fn2"

 On September 14, 1993, petitioner's parole was revoked and petitioner was placed in exclusion hearings. While those proceedings were pending, petitioner applied to the Director in San Francisco for an adjustment of his immigration status, due to his marriage to a U.S. citizen. On March 15, 1994, the Director denied petitioner's application, finding that petitioner was excludable due to his use of a counterfeit registration card, 8 U.S.C. § 1182(a)(6)(C)(i), INA § 212(a)(6)(C)(i) (misrepresentation), and that petitioner had not applied for a waiver of excludability. (Administrative Record III ("AR-III") at 77.)

 The next day petitioner appeared before an Immigration Judge ("IJ") in an exclusion hearing. Petitioner admitted the factual charges against him, but requested that the IJ renew his application for adjustment. The IJ refused to do so, basing his decision on 8 C.F.R. § 245.2(a)(1) which only allows a renewal of adjustment applications in exclusion hearings under limited circumstances. Petitioner also requested that he be allowed to withdraw his application for admission and voluntarily depart the country. This request was also denied and petitioner was ordered excluded and deported from the United States. (AR-III at 37-42.) On September 13, 1994, the BIA affirmed the IJ's decision. (AR-III at 1-5.)

 The parties are currently before the court on petitioner's Petition for a Writ of Habeas Corpus pursuant to 8 U.S.C. §§ 1105(a)(10) and 1105(b), INA §§ 106(a)(10) and 106(b). He seeks review of the Director's denial of adjustment, and of the decision of the Board of Immigration Appeals.

 Petitioner argues that the Director abused his discretion by denying petitioner's application for adjustment due to petitioner's excludability without allowing petitioner to apply for a waiver of excludability. Petitioner argues that the BIA erred by not finding the limitations on renewal of an application for adjustment at exclusion hearing invalid. Petitioner further argues that the BIA abused its discretion by not permitting petitioner to withdraw his petition and voluntarily depart the United States.

 A. JURISDICTION OF THE COURT

 This Court has jurisdiction to entertain habeas corpus petitions of excludable aliens. 8 U.S.C. § 1105a(b). *fn3" "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; *fn4" 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). *fn5" 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. *fn6"

 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 ...


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