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ABDUL HAMEED KASBATI v. DISTRICT DIR. OF THE INS

October 23, 1992

ABDUL HAMEED KASBATI, Petitioner,
v.
DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, Respondent.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Abdul Kasbati ("Kasbati") has petitioned this court for a writ of habeas corpus. *fn1" For the reasons set forth below, his petition is denied.

 Kasbati challenges the Immigration and Naturalization Service's ("INS") construction of the Immigration and Nationality Act ("INA"), as amended by the Immigration and Reform Control Act of 1986 ("IRCA"). In construing a statute, this Court must abide by statutory intent. However, if a statute is silent on its proper construction, or contains an ambiguity, this Court must defer to agency interpretation, provided that that interpretation is consistent with the language and purpose of the statute. See Young v. Community Nutrition Inst., 476 U.S. 974, 981-82, 106 S. Ct. 2360, 2364-65, 90 L. Ed. 2d 959 (1986). We may even defer to an agency if "the agency construction was [not] the only one it permissibly could have adopted . . . or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984).

 II. Factual Background

 Kasbati, a native of Pakistan, has resided in the United States since 1981. In March, 1990, he successfully applied for class membership in a class action lawsuit, Catholic Social Services v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff'd CSS v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), challenging the INS' implementation of the Amnesty Program. The plaintiff class prevailed and Kasbati received a work authorization permit from the INS, while the agency appealed. Meanwhile, Kasbati applied for lawful temporary resident status pursuant to § 245A of the Immigration and Nationality Act.

 On February 28, 1992, Kasbati left the United States to go to Pakistan and care for his sick sister. While he was abroad, his work authorization permit expired. On March 14, 1992, he returned to the United States and presented himself for inspection before the INS at Chicago's O'Hare Airport. The examining official refused to allow Kasbati into the country, commenced exclusion proceedings against him, and detained him under § 235(b) of the Immigration and Nationality Act. 8 U.S.C. § 1225(b). *fn2"

 Kasbati went before the Immigration Law Judge and moved to terminate the exclusion proceedings, arguing that a casual, brief, and innocent excursion outside the country does not subject an applicant for legalization to exclusionary proceedings. On March 27, 1992, the Immigration Judge denied this motion, ruling that Kasbati's absence was not casual, brief, and innocent under INS regulations, *fn3" and, therefore, he was properly subject to exclusionary proceedings. Kasbati then appealed to the United States Board of Immigration Appeals, which affirmed the Immigration Judge's decision on the grounds that under INS regulations, an applicant for temporary legal status must obtain advance parole in order to be readmitted to the United States.

 III. Discussion

 The INS claims that Kasbati is excludable on three separate grounds. The government asserts that the petitioner 1) entered the United States without a valid unexpired immigrant visa, *fn4" 2) sought to enter the United States to perform skilled or unskilled labor without valid labor certification, *fn5" and 3) sought to enter the country by fraud or by wilfully misrepresenting a material fact. *fn6" The petitioner does not contend that these grounds are incorrect. Instead, he argues that because his was only a casual, brief, and innocent excursion, under Rosenberg v. Fleuti, 374 U.S. 449, 83 S. Ct. 1804, 10 L. Ed. 2d 1000 (1963), and by the logic of CSS v. Meese, 685 F. Supp. 1149 (E.D. Cal. 1988), aff's sub nom. CSS v. Thornburgh, 956 F.2d 914 (9th Cir. 1992), there was no meaningful absence and, thus, no "entry." Without an entry, Kasbati concludes, he is not properly subject to exclusionary proceedings.

 A. The Fleuti Doctrine

 The Fleuti doctrine, as it is called, states that "an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been 'intended' as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an 'entry' into the country on his return." Fleuti, 83 S. Ct. at 1812. The Fleuti doctrine, however, applies only to lawful resident aliens. *fn7" A "lawful resident alien," in turn, is an alien who has been "lawfully accorded the privilege of residing permanently in the United States." 8 U.S.C. § 1101(a)(20). *fn8" Here, Kasbati is not a lawful resident alien, but is rather an applicant for temporary legal residency. Moreover, Kasbati's membership in the CSS class action does not confer lawful permanent resident status on him. *fn9" As such, the Fleuti doctrine does not apply to him, and his casual absence may therefore create an entry subjecting him to exclusionary proceedings.

  *fn7" This is not an arbitrary demarcation. In § 103(a)13 of the Immigration and ...


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