Josadac Mariscal-Sandoval v. John Ashcroft, Attorney General

370 F.3d 851 Josadac MARISCAL-SANDOVAL, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-71925. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 31, 2004. Filed May 28, 2004. Raul M. Montes, Montes, Montes & Montes, San Diego, CA, for the petitioner. Theresa M. Healy, Office of Immigration Litigation, Civil Division, Los Angeles, CA, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Atg-qyc-pja. Before HARRY PREGERSON, ROBERT R. BEEZER, and RICHARD C. TALLMAN, Circuit Judges. TALLMAN, Circuit Judge. 1 Josadac Mariscal-Sandoval, a native and citizen of Mexico, petitions for review of a final order of exclusion by the Board of Immigration Appeals ("BIA"). The BIA affirmed without opinion the Immigration Judge's ("IJ") Order, which found Mariscal Sandoval excludable from the United States for knowingly attempting to transport six undocumented aliens from Mexico into California. Mariscal-Sandoval contends that he should have been placed in deportation rather than exclusion proceedings because he had "entered" the United States within the meaning of 8 U.S.C. § 1101 (a)(13) (1997). 1…

Josadac Mariscal-Sandoval, a native and citizen of Mexico, petitions for review of a final order of exclusion by the Board of Immigration Appeals (“BIA”). The BIA affirmed without opinion the Immigration Judge’s (“IJ”) Order, which found Mariscal Sandoval excludable from the United States for knowingly attempting to transport six undocumented aliens from Mexico into California. Mariscal-Sandoval contends that he should have been placed in deportation rather than exclusion proceedings because he had “entered” the United States within the meaning of 8 U.S.C. § 1101 (a)(13) (1997). 1 We hold that Maris-cal-Sandoval did not make an “entry” into the country when the Immigration and Naturalization Service (“INS”) 2 failed to promptly issue him a parole extension. Because he was not entitled to deportation proceedings, we deny the petition for review.

I

Mariscal-Sandoval obtained lawful permanent resident status in the United States in 1992. The INS’s exclusion proceedings against him arose out of an incident that occurred on May 16, 1995, at the Otay Mesa Port of Entry along the United States-Mexico border in California. The INS alleged that Mariscal-Sandoval tried to evade inspection…

concurring:

I join the judgment of the court.

I write separately with respect to the dissolution of the stay orders entered during the course of this appeal.

I

Mariseal-Sandoval filed his petition for review on July 1, 2002. At that time he moved for a stay of removal pending our review of his petition. The act of filing Mariscal-Sandoval’s stay motion resulted in the automatic issuance of a temporary stay order so that the court could evaluate the merits of petitioner’s motion for stay.

This temporary stay procedure is established in our General Order 6.4(c). On September 9, 2002, after the government filed a notice of non-opposition to the stay motion, a staff attorney employed by this court prepared, certified and filed an order granting Mariscal-Sandoval’s motion for a stay of removal pendente lite. Because our opinion today removes any “likelihood of success on the merits,” the petitioner’s allegations of fact supporting a stay now are determined to be without merit. There is no legitimate reason not to revoke Mariscal-Sandoval’s stay order immediate *857 ly so that the removal or deportation process can proceed as required by statute.

I discuss the application of the…