Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
257
Matter of Luis CASTILLO-PADILLA, Respondent
File A088 010 212 – Miami, Florida
Decided June 18, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under
section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).
(2) An alien who was released from custody on conditional parole pursuant to section
236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes
of establishing eligibility for adjustment of status under section 245(a) of the Act,
8 U.S.C. § 1255(a) (2006).
FOR RESPONDENT: Rodrigo Vilar, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: James T. Dehn, Appellate
Counsel; Eric Aurelius, Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated January 24, 2008, an Immigration Judge found the
respondent removable from the United States and denied his application
for adjustment of status. The respondent has appealed from that decision.
A three-member panel of the Board heard oral argument on February 4, 2010.
The respondent’s appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico. The Department
of Homeland Security (“DHS”) issued a Notice to Appear (Form I-862)
on October 20, 2006, alleging that the respondent came to the United States
“on or about October 15, 1999,” and that he had not been “admitted or paroled
after inspection by an Immigration Officer.” The respondent was chargedCite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
258
under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(i) (2006), as an alien who is present in the United States
without being admitted or paroled. The respondent was detained at the Krome
Service Processing Center and was released by the DHS on a $12,000 cash
bond on November 9, 2006. He was issued a Form I-94 (Arrival-Departure
Record) with a stamp indicating that he was released after posting the bond.
Before the Immigration Judge, the respondent conceded that he was
removable as charged and sought to apply for adjustment of status under
section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), based on his marriage
to a United States citizen. The Immigration Judge denied the respondent’s
application for relief, finding that although he was released from custody
and given a Form I-94, he had not been “paroled into the United States,”
as required by section 245(a) to establish eligibility for adjustment of status.
Furthermore, the Immigration Judge concluded that the respondent was
ineligible to adjust his status under section 245(i) of the Act because of the
filing date of his visa petition.
II. ISSUE
The issue in this case is whether an alien who has been released from
custody on conditional parole pursuant to section 236(a)(2)(B) of the Act,
8 U.S.C. § 1226(a) (2006), has been “paroled into the United States” for
purposes of establishing eligibility for adjustment of status under section
245(a) of the Act.
III. ANALYSIS
On appeal and at oral argument, the respondent conceded that he was
not paroled under section 212(d)(5)(A) of the Act. However, he asserts
that he received “conditional parole” under section 236(a)(2)(B) and that
he is therefore eligible to adjust his status under section 245(a). The DHS
argues that the respondent is not eligible for adjustment of status because his
release from custody on conditional parole does not amount to being
paroled into the United States. We review de novo the Immigration Judge’s
determination on this issue of law. 8 C.F.R. § 1003.1(d)(3)(ii) (2010);
Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). For the reasons set forth
below, we conclude that “conditional parole” under section 236(a)(2)(B) of the
Act is a distinct and different procedure from “parole” under section
212(d)(5)(A) and that the respondent is not eligible to adjust his status under
section 245(a) based on his conditional parole.Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
259
Parole is described in section 212(d)(5)(A) of the Act, which provides
as follows:
The Attorney General may, except as provided in subparagraph (B) or in section
214(f), 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.
Conditional parole is described in section 236(a) of the Act, which provides,
in pertinent part, as follows:
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) 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 . . . .
An alien paroled into the United States under section 212(d)(5) of the
Act is authorized to come into the United States “temporarily” for urgent
humanitarian reasons or significant public benefit and under strict conditions
defining his or her status. After the purpose of the parole has been served, the
alien returns to custody, and his or her case is dealt with in the same manner
as any other applicant for admission.
In contrast, section 236(a) does not place any such restrictions on an alien
who is released on conditional parole. The alien is merely released from
detention “pending a decision on whether the alien is to be removed from the
United States.” Section 236(a) of the Act.
The respondent has not adequately explained how his release from
custody on a $12,000 bond constitutes conditional parole. Nevertheless,
even if, as he contends, he was afforded “conditional parole” under section
236(a)(2)(B) of the Act, this is not the same as “parole into the United States,”
so he would not be eligible for adjustment of status under section 245(a). Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
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The respondent’s argument fails based on the plain language of the statute.
See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (stating that issues
regarding whether statutory language has a plain and unambiguous meaning
are “determined by reference to the language itself, the specific context
in which that language is used, and the broader context of the statute
as a whole”). Under section 245(a) of the Act, adjustment of status is available
only to aliens who were “inspected and admitted or paroled into the
United States.” It is true that section 236(a)(2)(B) uses the phrase “conditional
parole,” but that is not the phrase used in section 245(a). Section 245(a) uses
the phrase “paroled into the United States,” which is identical to the language
used in section 212(d)(5)(A) of the Act.
Moreover, even if the statutory provisions at issue here were considered
ambiguous, we would reach the same conclusion, because interpreting
a release from custody under section 236(a) to be the equivalent of “parole into
the United States” under section 212(d)(5)(A) would create conflicts within the
regulatory and statutory schemes. For example, the respondent’s interpretation
would present a conflict with section 245(i) of the Act. Congress enacted
section 245(i) to permit aliens who entered the United States without
inspection to adjust status, but only under certain specified conditions.
If release from custody under section 236(a) were equated with parole under
section 212(d)(5)(A), an unlawful entrant who was detained and released from
custody on conditional parole could seek adjustment under the provisions
of section 245(a), even if the restrictive eligibility requirements of section
245(i) specified by Congress could not be met. Thus, an alien released from
detention would be placed in a better position—as a direct result of that
detention—than another alien who came into the country illegally but was not
detained and released. In addition, under the respondent’s interpretation,
aliens who were released from custody under section 236(a) would cease
to accrue unlawful presence under section 212(a)(9)(B)(i) of the Act, because
an alien is only deemed to be unlawfully present under section 212(a)(9)(B)(ii)
if he or she is present in the United States “without being admitted or paroled.”
We are not persuaded that Congress intended these results. See
Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1120 (9th Cir. 2007) (finding
that it would be “odd” to read section 245(a) of the Act as authorizing
unlawful entrants who do not meet the conditions of section 245(i) to seek
adjustment of status when they are conditionally paroled under section 236(a)).
The regulations also support the conclusion that parole and conditional
parole are distinct procedures that cannot be equated. The regulations provide
that both the Attorney General and the Secretary of Homeland Security have
the authority to make custody determinations under section 236(a) of the Act.Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
1 The functions of the Immigration and Naturalization Service were transferred to the
Department of Homeland Security on March 1, 2003, pursuant to the Homeland Security Act
of 2002, Pub. L. No. 107-296, 116 Stat. 2135. See Matter of D-J-, 23 I&N Dec. at 573 n.1.
261
See, e.g., Matter of D-J-, 23 I&N Dec. 572, 574 n.3 (A.G. 2003); 8 C.F.R.
§§ 1003.19, 1236.1(d) (2010). However, the parole authority under section
212(d)(5)(A) of the Act, which previously was exclusively delegated to the
former Immigration and Naturalization Service, is now delegated solely to the
Secretary of Homeland Security following the dissolution of the Service and
the creation of the DHS.1
See 8 C.F.R. § 212.5 (2010); see also Matter
of United Airlines Flight UA802, 22 I&N Dec. 777, 782 (BIA 1999) (stating
that the Board could not review the Service’s decision to parole an alien into
the United States because the district director had exclusive jurisdiction
to parole under 8 C.F.R. § 212.5(a)). Since the Attorney General has no parole
authority under section 212(d)(5)(A), it would be inconsistent with the
regulations to consider the two types of parole as equivalent.
Additionally, the regulations relating to parole under section 212(d)(5)(A)
of the Act provide different standards from those in the regulations regarding
conditional parole. Pursuant to 8 C.F.R. § 236.1(c)(8) (2010), an alien may
be released from custody on conditional parole under section 236(a) of the Act
only if “such release would not pose a danger to property or persons, and . . .
the alien is likely to appear for any further proceeding.”
In contrast, the regulations at 8 C.F.R. § 212.5(b) relating to parole require
a determination by the DHS on a case-by-case basis that permission to come
into the country temporarily should be granted to an alien for “urgent
humanitarian reasons” or “significant public benefit” and that the alien
presents no security risk or risk of absconding. Furthermore, 8 C.F.R. § 212.5
specifies procedures for the termination of parole. For example, parole
is automatically terminated upon the alien’s departure from the country
or at the expiration of the time for which parole was authorized. 8 C.F.R.
§ 212.5(e)(1). Parole is also terminated when a charging document is served
on the alien, which is considered a written notice of termination of parole
unless otherwise specified. 8 C.F.R. § 212.5(e)(2)(i).
In this case, the respondent suffered no conditions or restrictions on his
status after the payment of bond, and there was no determination that
he should be permitted to come into the country temporarily for urgent
humanitarian reasons or significant public benefit. Compare section
212(d)(5)(A) of the Act and 8 C.F.R. § 212.5 with section 236(a) of the Act
and 8 C.F.R. § 236.1(c)(8). As previously noted, the respondent was detained
by the DHS and was granted bond by an Immigration Judge. He was issuedCite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
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a Form I-94 indicating that he was released on bond, but the document was not
“endorsed with the parole stamp,” as required by the regulations when an alien
is granted parole under section 212(d)(5)(A) of the Act. 8 C.F.R. § 235.1(h)(2)
(2010). Thus, pursuant to section 236(a) of the Act, he was merely released
from custody “pending a decision on whether [he] is to be removed from the
United States.”
In Ortega-Cervantes v. Gonzales, 501 F.3d 1111, the United States Court
of Appeals for the Ninth Circuit addressed whether an alien who received
conditional parole under section 236(a) of the Act can establish eligibility for
adjustment under section 245(a). Considering the legislative history and
purposes of the same statutory provisions at issue here, the court determined
that release from custody on conditional parole under section 236(a)(2)(B)
is a distinct and different procedure from parole under section 212(d)(5)(A).
Id. at 1116-20. Thus the court concluded, as do we, that an alien granted
conditional parole is not eligible to adjust status under section 245(a) of the
Act as an alien who was “paroled into the United States.” Id.
In this case, the respondent was issued a Form I-94, which, as noted by the
Ninth Circuit, is “typically provided to aliens ‘parole[d] into the United States’
pursuant to [section 212(d)(5)(A) of the Act].” Id. at 1112. Nevertheless,
while it is unclear why the local DHS Immigration and Customs Enforcement
office would issue a Form I-94 to an alien granted bond by an Immigration
Judge, as was done in this case, the Form I-94 does not contain the stamp,
as required by regulation, indicating that the respondent was granted
parole under section 212(d)(5)(A) of the Act. 8 C.F.R. § 235.1(h)(2). Rather,
it contains a stamp that explicitly states that the respondent was released from
custody after posting a $12,000 bond and appears to merely memorialize his
release on bond. Thus, although the respondent did receive a Form I-94, there
is no evidence to indicate that the Government intended to parole him into the
United States pursuant to section 212(d)(5)(A). See Ortega-Cervantes
v. Gonzales, 501 F.3d 1111.
Finally, we will address the internal guidance memoranda issued by the
former Immigration and Naturalization Service and the DHS on this subject.
While the respondent does not rely on the memoranda to support his claim,
they were noted by the DHS in its supplemental briefing and were discussed
at oral argument. The first memorandum on the subject of “Authority to parole
applicants for admission who are not also arriving aliens” was issued in
1998. Memorandum from Paul Virtue, for Bo Cooper, INS General Counsel,
to INS officials, Legal Op. 98-10 (Aug. 21, 1998), 1998 WL 1806685.
A second memorandum discusses the “Eligibility for Permanent Residence
Under the Cuban Adjustment Act Despite having Arrived at Place Other thanCite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
2 In reaching its conclusion, the memorandum also provides a detailed discussion of the
historical use of the term “conditional parole,” differentiating the procedure from the concept
of parole under section 212(d)(5)(A) of the Act. DHS Memorandum, supra, at 3 n.3.
263
a Designated Port-of-Entry.” Memorandum from Doris Meissner,
Commissioner, to INS officials (Apr. 19, 1999), reprinted in 76 Interpreter
Releases, No. 17, May 3, 1999, app. 1 at 676, 684.
An argument could be made that these two memoranda equated conditional
parole under section 236(a)(2)(B) of the Act with parole under section
212(d)(5)(A). However, the Ninth Circuit rejected this argument, principally
because the memoranda do “not expressly state that every alien who
is conditionally paroled under § 1226(a) necessarily becomes eligible for
adjustment of status under § 1255(a).” Ortega-Cervantes v. Gonzales, 501
F.3d at 1118-19. The court also agreed with our conclusion in that case that
such internal guidance memoranda are not binding authority. Id. at 1119.
As we have held in other contexts, policy memoranda are intended for internal
agency use and are not binding on the Board or Immigration Judges. See
Matter of Tijam, 22 I&N Dec. 408, 416 (BIA 1998); Matter of Cavazos,
17 I&N Dec. 215 (BIA 1980).
Even if these memoranda could be relied on as support for the respondent’s
interpretation of the statute, a 2007 DHS memorandum entitled “Clarification
of the Relation Between Release Under Section 236 and Parole Under Section
212(d)(5) of the Immigration and Nationality Act” expressly superseded the
paragraph in the 1998 memorandum that could be read as equating conditional
parole under section 236(a)(2) with parole under section 212(d)(5)(A).
Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS
officials (Sept. 28, 2007), http://www.bibdaily.com/ (keyword “parole”) (last
visited June 17, 2010) (“DHS Memorandum”). The memorandum further
directed that the paragraph “be given no weight or effect by the [DHS] and its
component agencies.”2
Id. at 2. Thus, whatever limited weight the first two
memoranda may have had in this regard no longer exists.
In light of the above, we conclude that the Immigration Judge correctly
determined that conditional parole under section 236(a)(2)(B) of the Act
is a distinct and different procedure from parole under section 212(d)(5)(A)
and that the respondent is not eligible to adjust his status under section 245(a)
of the Act on the basis of his release from custody on conditional parole.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.