Chow

*734 MEMORANDUM **

The INS appeals a grant of habeas corpus relief to Henry Hong Chow (“Chow”). Because Chow’s departure from this country constituted a withdrawal of his appeal to the Board of Immigration Appeals (“BIA”), we reverse.

Interpreting the law as it stood before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), the Supreme Court held in Rosenberg v. Fleuti 3 74 U.S. 449 , 83 S.Ct. 1804 , 10 L.Ed.2d 1000 (1963) (“Fleuti”), that a Lawful Permanent Resident’s return to the United States from an “afternoon trip” to Mexico did not constitute an “entry” within the meaning of 8 U.S.C. § 1101 (a)(13), because the trip was “innocent, casual, and brief.” Id. at 461 , 83 S.Ct. 1804 . Chow seeks to apply Fleuti to his case, and asks us to hold that his five-day trip to Canada did not constitute a “departure” sufficient to withdraw his BIA appeal within the meaning of 8 C.F.R. § 3.4 .

We analyze this question under the Immigration and Nationality Act as it existed before the enactment of the IIRIRA. IIRIRA does not apply to deportation or exclusion proceedings that were initiated prior to April 1, 1997, IIRIRA § 309(c)(1), and the INS initiated…