In some cases (this is one of them), the Attorney General grants advance parole to an alien who is already in the United States but who also wants the assurance that he will be allowed to leave and return. Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 2003 WL 21282457, at *3 (11th Cir. June 5, 2003); 5 Charles Gordon, et al., Immigration Law and Procedure § 62.02[2], at 62-13 (Rev. ed. 2003). The Attorney General also has the discretion to revoke advance parole after it has been granted.
IIRIRA made comprehensive changes to the Immigration and Nationality Act (INA), including changes in immigration terminology. See generally Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 1326-27 (11th Cir. 2003). Previously, individuals who were ineligible for admission to the United States were referred to as "excludable," while those who had gained admission were referred to as "deportable."
In some cases, advance parole is granted to an alien who is already in the United States but who wants the assurance that he or she will be allowed to leave and return. See Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 1326-27 (11th Cir. 2003); 5 Charles Gordon, et al., Immigration Law and Procedure § 62.02[2], at 62-13 (Rev. ed. 2002). On September 29, 2000, petitioner was charged in an Indictment in the United States District Court for the Eastern District of New York with, inter alia, one count of conspiracy to traffic in and use unauthorized devices, in violation of 18 U.S.C. § 1029(b)(2) and (c)(1)(A).
Therefore, our inquiry should not focus on the absence of an explicit repeal or overruling of Fleuti, but rather on the strong indication of Congressional intent that stems from the absence of any mention of the operative terms intent, innocent, casual, or brief. See also Assa'ad v. Attorney Gen., 332 F.3d 1321, 1331 (11th Cir. 2003) ("Thus, we believe that the exception for `brief, casual, and innocent absences' in § 245A(a)(3)(B) is expressly limited to the continuous physical presence eligibility requirement. It does not affect the generally applicable definition of what constitutes an `entry' into the United States under former INA § 101(a)(13).").
In our de novo review, however, the BIA's interpretation and application of immigration law are subject to established principles of deference. Assa'ad v. United States Att'y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003); see Fed. Trade Comm'n v. Ind. Fed'n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2016, 90 L.Ed.2d 445 (1986). In interpreting a statute or regulation administered by an agency, the Supreme Court has established a two-part process.
JUSTICE SOUTER took no part in the consideration or decision of this petition. Reported below: 332 F. 3d 1321.
III. STANDARD OF REVIEW This court reviews the BIA's interpretation of applicable statutes de novo, but defers to the BIA's interpretation if it is reasonable. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001); see also Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 1326 (11th Cir. 2003). This court considers the legal question of whether the doctrine of collateral estoppel is available de novo. Matter of McWhorter, 887 F.2d 1564, 1566 (11th Cir. 1989).
In 1985, 1986, and 1991, Geach traveled to the United Kingdom for short visits, and prior to each trip, he applied for "advance parole" before leaving the United States. See Assa'ad v. United States Attorney General, 332 F.3d 1321, 1326-27 (11th Cir. 2003) (explaining advance parole). On November 24, 1992, the Immigration and Naturalization Service (INS), now known as the Department of Homeland Security, placed Geach in exclusion proceedings and charged him with being excludable under § 212(a)(2)(A)(i)(II) of the INA because he is an alien who has been convicted of a controlled substance violation.
In contrast, aliens who have not been lawfully admitted to the United States — regardless of whether they entered illegally or were stopped at the border — are removable on the grounds of inadmissibility. See Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1326 n. 10 (11th Cir. 2003). Two circuits have held 8 C.F.R. § 241.8 constitutes a lawful exercise of the Attorney General's authority.
II. Analysis We review the BIA's denial of appellant's motion to reopen for an abuse of discretion. Assa'ad v. U.S. Atty. Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). BIA regulations state that "[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at a former hearing."