In re Alex OSEIWUS, Respondent (Board decision, March 25, 1998)

Plain-English summary

The Board reviewed an Immigration Judge's bond-redetermination decision for a respondent who had returned to the United States under advance parole while seeking adjustment of status. It held that a person paroled into the United States after returning under advance parole remains an “arriving alien” under the regulations. Because Immigration Judges do not have authority over the custody and detention of arriving aliens, the Board held that the bond request could not be considered through that process. It vacated the Immigration Judge's decision and returned the record to the Immigration Court.

Decision snapshot

• Cited authorities: 8 U.S.C. §§ 1182(d)(5) and 1255; 8 C.F.R. §§ 1.1(q), 3.1(e), 236.1(c)(5)(i), and 236.1(d)
• Outcome: The Immigration Judge's bond decision was vacated, and the record was returned to the Immigration Court.
• Key point: Advance parole does not remove a person from the regulatory “arriving alien” category or give an Immigration Judge authority to decide that person's bond request.

Full text (BIA official public release)

Interim Decision #3344

In re Alex OSEIWUSU, Respondent

File A72 537 754 - San Pedro

Decided March 25, 1998

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations.

(2) According to the regulations, an Immigration Judge has no authority over the appre- hension, custody, and detention of arriving aliens and is therefore without authority to con- sider the bond request of an alien returning pursuant to a grant of advance parole.

Pro se

Before: Board Panel: HEILMAN, COLE, and MATHON, Board Members.

HEILMAN, Board Member:

This is a timely appeal from an Immigration Judge’s bond redetermi- nation decision. The request for oral argument before the Board is denied. 8 C.F.R. § 3.1(e) (1997). The request for a waiver of the appeal fee is granted. The decision of the Immigration Judge will be vacated and the record will be returned to the Immigration Court.
The respondent last arrived in the United States in April of 1996. At the time he returned to the United States, the respondent was an applicant for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255 (1994), based on his marriage to a citi- zen of the United States. The respondent was paroled into the United States upon his arrival pursuant to a grant of advance parole.
The federal regulations define an “arriving alien” as follows: “The term arriving alien means an alien who seeks admission to or transit through the United States . . . . An arriving alien remains such even if paroled pursuant to section 212(d)(5) of the Act.” 62 Fed. Reg. 10,312, 10,330 (1997) (to be codified at 8 C.F.R. § 1.1(q)) (interim, effective Apr. 1, 1997). Given the fact that the respondent was paroled into the United

19
Interim Decision #3344

States, he falls within the definition of an “arriving alien.” Pursuant to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens. 62 Fed. Reg. 10,312, 10,361 (1997) (to be codified at 8 C.F.R. § 236.1(c)(5)(i)) (interim, effective Apr. 1, 1997). Moreover, arriving aliens cannot avail themselves of the review process provided in the regulations. Id.; see also 62 Fed. Reg. 10,312, 10,361 (1997) (to be codified at 8 C.F.R. § 236.1(d)) (interim, effective Apr. 1, 1997)(describing the review process). Therefore, because the Immigration Judge had no authority over the apprehension, custody, and detention of arriving aliens, consideration of the respondent’s bond request was improper.
Accordingly, the decision of the Immigration Judge will be vacated, and the record will be returned to the Immigration Court for any further action, as necessary.
ORDER: The Immigration Judge’s decision is vacated, and the record is returned to the Immigration Court.

20