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Keywords

appealhabeas corpusregulationparoledeportationnaturalization
regulationparoledeportationnaturalization

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Le v. Waters

Facts

Petitioners Thanh Long Le and his daughter Angelique Le applied for status as lawful permanent residents of the United States. While their applications were pending, they left the United States to be with Angelique's mother in France, who was undergoing medical treatment. Upon their return, the Immigration and Naturalization Service (INS) refused to admit them, claiming that their departure constituted an abandonment of their applications. The Board of Immigration Appeal (BIA) upheld this decision, leading to the petitioners filing for a writ of habeas corpus.

Petitioners Thanh Long Le and his daughter 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.

Issue

Did the petitioners abandon their applications for adjustment of status by leaving the United States without authorization?

Did the petitioners abandon their applications for adjustment of status by leaving the United States without authorization?

Rule

The applicable regulations state that the departure of an applicant who is not under deportation proceedings shall be deemed an abandonment of his or her application constituting grounds for termination, unless the applicant was previously granted advance parole by the Service for such absence.

The departure of an applicant who is not under deportation proceedings shall be deemed an abandonment of his or her application constituting grounds for termination, unless the applicant was previously granted advance parole by the Service for such absence.

Analysis

The court analyzed the regulations and the BIA's interpretation, determining that unauthorized departure during the pendency of an application automatically constitutes abandonment. The court noted that the regulation clearly states that such departure would lead to termination of the application, and the BIA's interpretation was reasonable and entitled to deference.

The BIA, in reversing the decision of the immigration judge, interpreted this regulation to mean that unauthorized departure during the pendency of an application automatically constitutes an abandonment of the application, and that the INS has no authority to grant an abandoned application.

Conclusion

The court denied the petitioners' writ of habeas corpus, affirming the BIA's decision that their unauthorized departure constituted abandonment of their applications.

For the foregoing reasons, petitioners' writ is [**16] DENIED.

Who won?

The Board of Immigration Appeal prevailed because the court found that the regulations clearly stated that unauthorized departure would be deemed an abandonment of the application for lawful resident status.

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.

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