United States of America v. Clive A. Dixon

United States Court of Appeals for the Third Circuit

Clive A. Dixon, a Jamaican, appealed a US District Court’s conviction of illegal reentry. Under 8 U.S.C. § 1326(a), any alien who has been deported and thereafter “enters, attempts to enter, or is at any time found in the United States,” commits a felony. The court held that Dixon could be “found in” the United States for the purposes of § 1326 while involuntarily incarcerated.

In 1991, an immigration judge issued an oral decision granting Dixon voluntary departure status until April 25, 1992, with an alternate order of deportation to Jamaica. The Immigration and Naturalization Service appealed to the Board of Immigration Appeals, challenging the grant of voluntary departure status. Because this appeal acted as an automatic stay, Dixon was not subject to deportation throughout 1992. In 1993, Dixon was convicted of possessing cocaine with intent to distribute, and sentenced to three to six years of imprisonment. The INS withdrew its appeal. When Dixon was paroled, the INS deported Dixon from the United States on March 10, 1998. Dixon then illegally reentered the United States. On December 6, 2000, Dixon was arrested for a traffic violation. The INS charged him with illegal reentry into the United States in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2).

Dixon filed a motion to dismiss the indictment, claiming that the government must prove that at the time the INS found him, his presence in the United States was voluntary. The district court denied the relief on the motion. Dixon argued that because he was “found in” the United States while he was involuntary incarcerated, he lacked the requisite intent to violate § 1326. The circuit court held that the creative argument lacked merit.

This court explained that it is sufficient for the issue before the court that Dixon undisputedly returned illegally. They held that a violation of the statute only requires an illegal return and a subsequent discovery. They reasoned that though the act of returning to the United States must be voluntary, it is not relevant whether an alien’s continued presence in the United States was voluntary at the moment of discovery.  

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Arriving Alien May Adjust Her Status Under INA § 245i

The Immigration Court in New York held that an arriving alien may adjust their status under INA § 245(i). Section 245(i) provides that any alien who is physically present in the United States and has either entered without inspection or is within one of the classes set forth in section 245(c) of the Act is eligible for adjustment of status if they are the beneficiary of a petition as an immediate relative or an application for labor certification and if the petition was submitted after January 14, 1998, and they were present in the United States on December 21, 2000. The term “beneficiary” is defined to include a spouse or child of the principal alien who would be eligible to receive a visa under section 203(d) of the Act. See INA § 245(i)(B)(1). In the Matter of: Hui Chen, the court considered whether Chen’s status as an “arriving alien” renders her ineligible to adjust status under section 245i of the Act as amended when she otherwise satisfies the statutory requirements.   

In January 1992, Chen was paroled into the United States after an immigration officer deferred her inspection. She submitted an application for asylum on or about May 6, 1992. In 1998, at an in absentia hearing, the Immigration Court denied her request for asylum and ordered her removed from the United States to the People’s Republic of China. Chen married in September 2000. Her husband was the beneficiary of an approved I-140 Immigrant Petition for Alien Worker. In 2002, INS approved Chen’s husband’s I-485 Application to Adjust to Permanent Resident Status. In 200l, Chen submitted a motion to reopen the in absentia order to allow her to adjust status to that of lawful permanent resident under 245i. The court granted the motion to reopen.  

This court initially held that Chen clearly satisfies the adjustment eligibility requirements of section 245(i) of the Act. The Service argued that according to 8 C.F.R § 245.1(c)(8), Chen is ineligible for adjustment of status because she is an arriving alien in removal proceedings. “Arriving alien” are: (1) applicants for admission coming or attempting to come into the U.S. at a port-of-entry; (2) aliens seeking transit through the U.S. at a port of entry; and (3) aliens interdicted in international or U.S. waters and brought into the U.S. by any means. See 8 C.F.R. § 1.1(q). If the alien was paroled into the United States, when the parole is terminated upon written notice, the alien is restored to the status that he or she had at the time of parole. See 8 C.F.R. § 212.5(d)(2)(i). Chen’s status reverted back to that of arriving alien when the Service issued a Final Denial of Request for Asylum with a Notice to Appear. 

The court noted that the remedial purpose of the LIFE Act was to allow previously ineligible applicants for adjustment the ability to adjust status in order to lessen the burden on both the alien and the U.S. embassies and consulates. See 59 Fed Reg. 51091 at 51092 (October 7, 1994); see also, 62 Fed Reg. 39417 (July 23, 1997). The court further noted that according to 8 C.F.R. § 245.1(c)(8), any arriving alien who is in removal proceedings pursuant to 235(b)(1) or section 240 of the Act is ineligible to apply for adjustment of status under section 245 of the Act. The court explained that reading the regulation’s limiting provision expansively, so as to preclude applications under section 245(i), as amended by the LIFE Act, “would be contrary to both the express language of the regulation and the remedial purpose[s]” of the LIFE Act. See Matter of Artigas, 23 I&N Dec. 99 at 104.

The court reasoned that aliens like Chen, who have been paroled into the United States, have had their parole revoked and status reverted back to “arriving alien,” and who have then become eligible for permanent residence through section 245(i) of the Act, as amended by the LIFE Act, are not among the “certain” arriving aliens intended to be prohibited from section 245 adjustment. The court stated that it is illogical to believe that the Act would allow aliens who have entered illegally and remained unlawfully and aliens who were admitted in transit without a visa and who stayed unlawfully to adjust status, but would not allow Chen, who entered lawfully and remained lawfully for several years.

The court therefore found that “arriving aliens” who have been paroled into the United States, have had their parole revoked and thereby have had their status revert back to “arriving alien,” and have then become eligible for permanent residence, are not prohibited from section 245(i) adjustment. In these narrow circumstances, section 245(i), as amended by the LIFE Act, overrides the impediment in 8 C.F.R. § 245.1(c)(8). Additionally, the court concluded that it had jurisdiction to adjudicate an application for adjustment of status made by an arriving alien in removal proceedings pursuant to section 245(i) of the Act. The court ordered that Chen’s application for adjustment of status be granted.