Gabriel Espinoza-Gutierrez v. Richard C. Smith, District Director, Immigration and Naturalization Service

Petitioner Gabriel Espinoza-Gutierrez (“Espinoza”), an applicant for legalization under 8 U.S.C. § 1255a, appeals the denial of his petition for a writ of habeas corpus. Espinoza was put into exclusion proceedings while attempting to return from a four-day trip to Mexico because he had not received advance parole from the Immigration and Naturalization Service (“INS”) prior to his departure. The district court had jurisdiction under 8 U.S.C. § 1105a(b). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we reverse and remand. Petitioner also appeals the district court’s determination that it had no jurisdiction to review the denial of his legalization application. We affirm that ruling.

The first issue on appeal is whether Espinoza’s return without advance parole constituted an “entry” into this country within the meaning of the Immigration and Nationality Act (“INA”), 8 U.S.C § 1101(a)(13). To decide this question, we must determine whether the “brief, casual, and innocent” language of 8 U.S.C. § 1255a(a)(3)(B) applies to legalization applicants stopped at the border. We conclude that under the INS’s permissible construction of the statute, § 1255a(a)(3)(B) does operate…