Appeal from a Decision of the Board of Immigration Appeals. INS No. A37-106-517.
Before: J. Clifford Wallace, Chief Judge, Leonard I. Garth*fn* and Charles Wiggins, Circuit Judges. Opinion by Chief Judge Wallace
Villarina petitions for review of the Board of Immigration Appeals' (Board) dismissal of his appeal from the immigration Judge's decision. The immigration Judge ordered him deported and denied his application for suspension of deportation under section 244(a) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1254(a), and his request for voluntary departure under section 244(e) of the Act, 8 U.S.C. § 1254(e). The Board had jurisdiction pursuant to 8 C.F.R. §§ 3.1(b)(2), 242.21 (1993). We have jurisdiction over this timely petition pursuant to 8 U.S.C. § 1105 (a) and section 245a(f) of the Act, 8 U.S.C. § 1255a(f). We deny the petition.
Villarina is a native and citizen of the Philippines. He entered the United States as a lawful permanent resident in 1980, as the unmarried child of a United States citizen. On October 24, 1985, he petitioned for naturalization. While investigating his eligibility for naturalization, the United States consul in Manila discovered that Villarina was married in 1977. Villarina's marriage rendered him ineligible for an immigrant visa as the unmarried child of a United States citizen at the time of his entry into the United States.
On July 10, 1987, the Immigration and Naturalization Service (INS) issued Villarina an order to show cause, charging him with deportability under section 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1), and section 212(a)(14), 8 U.S.C. § 1182(a)(14), as an alien who entered the United States with the intent and purpose of performing labor without authorization or labor certification and under section 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1), and section 212(a)(2), 8 U.S.C. § 1182(a)(20), as an alien who entered the United States as an intended immigrant without valid immigration documents. An immigration Judge denied Villarina's request for suspension of deportation and denied his application for voluntary departure. The immigration Judge ordered Villarina deported to the Philippines.
The merits of the Board's dismissal and validity of the deportation order are not before us. Rather, Villarina asks us to permit him to file an application for relief from deportation under the Immigration Reform and Control Act of 1986 (Reform Act), section 245a of the Act, 8 U.S.C. § 1255a. The Reform Act established a scheme to permit certain aliens unlawfully present in the United States to apply for the status of temporary resident and, after a one-year period, for permission to reside permanently.
To qualify as an "alien lawfully admitted for temporary residence," an alien must establish (1) a timely application, (2) continuous unlawful residency since 1982, (3) continuous physical presence since November 6, 1986, and (4) admissibility as an immigrant. § 201 of Reform Act, 8 U.S.C. § 1255a(a)(1)-(4). An application is timely if filed within the twelve-month period designated by the INS, which began on May 5, 1987. 8 U.S.C. § 1255(a)(1). The issue before us is whether Villarina has established the first requirement.
Villarina concedes that he failed to file an application within the required one year. He contends that under the circumstances of this case, his failure to file should be excused.
He points out that the second requirement is based upon a continuous unlawful status. That is, he must establish "that he entered the United States before January 1, 1982, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection." 8 U.S.C. § 1255a(a)(2)(A) (emphasis added).
In exercising its jurisdiction to interpret section 245a of the Reform Act, the Legalization Appeals Unit initially determined that aliens remain in "lawful status" until a final order of deportability issues in deportation proceedings. See Matter of Urena, File A90235087 (March 14, 1988); Matter of Hilbert, File A90283028 (July 11, 1988). In Matter of S., 19 I.&N. Dec. 851, 853 (1988), the Legalization Appeals Unit reversed its position on the final deportation order requirement, and reopened sua sponte previous denials of section 245a relief which had been based on determinations of "lawful status." Id. at 854.
Villarina contends the INS's former interpretation of "unlawful status" rendered him statutorily ineligible for legalization at that time. He argues he "could reasonably believe that filing an application would be a futile and expensive act," relying on Ayuda, Inc. v. Meese, 687 F. Supp. 650, 665 (D.D.C. 1988), vacated, 7 F.3d 246 (D.C. Cir. 1993) (intervening appellate history omitted). In Ayuda, the court granted a preliminary injunction against enforcement of an INS regulation, reasoning that there was a threat of irreparable injury to plaintiffs because of a sizable application fee that deterred them from filing an application for legalization in the face of the INS's erroneous interpretation of regulations which would have rendered them ineligible for relief under the Reform Act. ...