Federal Agencies, Agency Memos & Announcements

INS Seattle District Director Delegates Parole Authority for Individuals in Canada

11/4/99 AILA Doc. No. 99121671. Admissions & Border, Humanitarian Parole

November 24, 1999

U.S. Department of Justice
Immigration and Naturalization Service
Western Region, Seattle District

Office of The District Director
815 Airport Way South
Seattle, WA 98134
November 24,1999

Janet Holste Cheetham

Attorney at Law
Mundt, MacGregor, Happel
First Interstate Center
999 11ird Avenue, Suite 4200
Seattle, WA 98104-4082

Dear Ms. Cheetham

IN RE:

Reference is made to the Application for Humanitarian Parole, Form I-131, you have submitted in behalf of the above alien. Effective November 4, 1999, this district has delegated the authority to adjudicate applications for parole in behalf of aliens presently in Canada to the Supervisory Immigration Inspectors located at our ports of entry.

0.1. 212.5(c)(6) provides that the parole of an alien from abroad may only be authorized by the Assistant Commissioner, Refugees, Asylum, and Parole, at our Headquarters. However, the Assistant Commissioner has delegated his parole authority to District Directors with ports of entry, and to the overseas District Directors.

Since we prefer the alien personally submit the I-131 for parole, an attorney representing the alien may either provide supporting documentation to the alien in advance, or may submit such documentation directly to the port of entry for joining with the application. This may routinely be done by telefax.

The advantage to the applicant of applying for parole at the port of entry is that an application filed at this office may take a week to ten days to be received and the fee collected. Applications for parole from abroad are often confused with applications for advance parole by the clerical staff, and may be miss-routed for I-512 adjudication. If the application is mailed several more days are added, and if mailed from Canada, it may take an additional week or more to be received at the Seattle office. A parole filed at a port should generally be decided within 24 hours. Thus the case is decided on a much more timely basis when filed at the port

Your application is therefore returned to you for providing to your client your client should personally present the application at the port of entry through which he/she will seek entry. It is a good idea to file the application at least several hours before entry is desired, and a day or two in advance would be preferable.

A copy of the delegation of parole authority is attached for your information. Please provide copies to your fellow members of AILA.

Sincerely,

David H. Lambert

Assistant District Director Examinations

Attachment

U.S. Department of Justice Immigration and Naturalization Service
Western Region, Seattle District

Office of the District Director
815 Airport Way South
Seattle, WA 98134

November 4,1999

MEMORANDUM FOR:
CRAIG D. ENGLIN, OIC, SPO
ALFONSO M. PINEDA, OIC, YAK
RONALD HAYS, DER ADD, INSPECTIONS
EDWIN MARTINEZ, APD, VCV
JEROME BLOTSKY, APD, BLA
ALL PORTS OF ENTRY

FROM: Richard C. Smith, District Director

Seattle, Washington

SUBJECT: Delegation of Parole Authority

I am hereby delegating parole authority to all Inspections Supervisors. Paroles at smaller ports without a supervisor must be faxed or telephonically discussed with the nearest port supervisor or area port director for decision. If a Supervisory Immigration Inspector is not available, any case may be referred to the Acting ADD for Inspections, to the ADDE, to the OIC, SPO, to the Deputy District Director, or myself.

In any case in which the deciding SII is unsure, which involves highly complex issues, or is likely to result in adverse publicity, Congressional Interest, or legal action should, if relating to an inspections issue, be referred to the Acting ADD for Inspections. If such a case relates to an asylee or a refugee, or an intended immigrant or adjustment of status case, it should be referred to the ADDE.

Motions to reopen or reconsider should also be referred to the Acting ADD for Inspections or to the ADDE as appropriate. Formal letters of denial should be issued in cases in which an applicant indicates an intent to file a motion to reopen or reconsider. You need not issue formal authorization letters for approval, but may simply issue Parole Form I-94.

I have attached sample approval and denial letters- which may be used as appropriate. These will

serve not only as guides in preparing decision letters, but also as samples of how various cases have been decided.

In adjudicating an application for parole, the following guidelines and policies must be followed carefully.

GENERAL POLICIES

On June 18, 1992 the Associate Commissioner, Examinations issued instructions to the field (CO 235-P, Parole Requests at ports of Entry) to utilize Form I-131 for applicants for parole, and to collect the prescribed fee. That memorandum also states that Form I-512 need not be issued for paroles at ports of entry, and includes the instruction that applications for parole clearly in the national interest should have the fee waived. Originally Form I-131 was an application for a Reentry Permit. A Refugee Travel Document was applied for on Form I-570. Parole was applied for by letter or oral request (Form I-512 was not created until 12-15- 65). Form I-131 was later revised to make it a multi-use form, covering Parole and Advance Parole, as well as applications for Reentry Permits and Refugee Travel Documents. In 1997 the Service created Form I-511 to apply for an I-512, but has not yet implemented it.

Sec. 212(d)(5) Parole of aliens. As amended by IIRAIRA (P.L. 104-208, The Illegal Immigration Reform and Individual Responsibility Act of 1996. Enacted 9-30-96. Effective 4-1-97) to provide parole authority may be exercised only on the basis of urgent humanitarian reasons or significant public benefit, provided the aliens present neither a security risk nor a risk of absconding. INS must report to the committee on the Judiciary describing the number and categories of aliens paroled into U.S. (Sec. 201(c) provides that beginning in 1999 aliens paroled who do not depart within 365 days or adjust to LPR must be counted against the worldwide visa allocation. (Underlining supplied throughout)

Sec. 212.5(c) Conditions. In any case where an alien is paroled under paragraph (a) or (b) of this section, the district director or chief patrol agent may require reasonable assurances that the alien will appear at all hearings and/or depart the United States when required to do so. Not all factors listed need be present for parole to be exercised. The district director or chief patrol agent should apply reasonable discretion.

0.I. 212.5(a) Parole. (a) Authority. The authority of a district director to parole shall not be exercised below the level of an officer in charge or an (I Supervisory) immigrant inspector in charge of a port of entry. The sole "parole" status authorized by the Immigration and Nationality Act and Service regulations is set forth in section 212(d)(5) of the Act; that extraordinary authority shall be exercised with discretion and shall not be utilized if the under consideration can be satisfactory disposed of under any other provision of the Act. Responsibility for each parole rests with the district director having jurisdiction over the paroling office. Except as specifically provided in paragraph (c) of this O.I., advance authorization for the parole of an alien outside the United States, except from an area adjacent to our land borders,.... shall be made at the Central Office level. An immigrant shall not be paroled to overcome unavailability of an immigrant visa number except when in the national interest. (Added as Seattle District policy)

O.I. 212.5(c)(6) provides that the parole of an alien from abroad may only be authorized by the Assistant Commissioner, Refugees, Asylum, and Parole, at our Headquarters. However, the Assistant Commissioner has delegated his parole authority to District Directors with ports of entry, and to the overseas District Directors. Parole is discussed and authorized in O.I.s 212.5(a) & (b), whereas the circumstances and authority to issue Form I-512 Advance Parole are discussed. at O.I. 212.5(c).

In as much as we only have "delegated authority" to parole an alien who is physically at one of our ports, we prefer that the I-131 be submitted by the alien at the port where he/she will seek initial entry. This helps prevent "port shopping", and establishes jurisdiction. Section 212(d)(5) was amended by IIRAIRA to require that the parole of an alien outside the U.S. may only be authorized on the basis of "Urgent Humanitarian Reasons or Significant Public Benefit. The circumstances for issuance of Advance Parole to an alien in the U.S. on Form I-512 are drastically more liberal and flexible. The issuance of Form I-512 to an Adjustment of Status Applicant may, pursuant to HQ 120/17.2 dated 8-15-97, be issued for "Any legitimate business or personal reason", and may be issued for whatever length of period necessary to cover the entire processing period of the Form I-485. Form I-512 need not be issued for a parole at a port of entry. In view of the above delegation to port supervisors, effective with this memorandum Applications for Humanitarian or Public Interest Paroles from Canada or from abroad for our air and seaports which are filed at the district office or one of the suboffices will generally be rejected with instructions for the alien to file at the port where he/she will enter. Exceptions may be made in special cases from other agencies, etc.

The advantage to the applicant of applying for parole at the port of entry is that an application filed at this office may take a week to ten days to be received and the fee collected. Applications for parole from abroad are often confused with applications for advance parole by the clerical staff, and may be mis-routed for I-512 adjudication. If the application is mailed several more days are added, and if mailed from Canada, it may take an additional week or more to be received at the Seattle office. A parole filed at a port should generally be decided within 24 hours. Thus the case is decided on a much more timely basis when filed at the port.

PROCEDURES

An alien applies for admission and is found to be inadmissible to the U.S. If the alien is considered a good candidate for parole, OR if the alien makes a claim to an emergency for which he/she must enter the U.S., OR if the alien is belligerent and demanding that there must be a solution to his/her problem, the officer MUST advise the alien of the availability of humanitarian parole. The alien is then provided Form I-131, Application for Advance Parole. The Seattle District Attachment to Form I-131 AND the HQ Guidelines for Humanitarian Parole Request (as revised to meet Seattle needs) must be attached to the Form I-131 provided to the Alien. The alien should then be advised that he/she may file the Form I-131 at the port of entry, or, if the alien does not believe he/she will get fair consideration by the Seattle District, he/she may file the application directly to the Assistant Commissioner, Refugees and Parole, at our Headquarters in Washington, D.C. The address of where to file the form to the Assistant Commissioner is provided on the instructions to Form I-131. The requirement that passport size photos are to be attached to the form, and the correct amount of the fee, should also be brought to the alien's attention.

If the alien elects not to file directly to HQ, the alien may then submit the Form I-131 to the port of entry. The alien is not to be told he/she must file with HQ, or to mail the Form I-131 to the district office, nor is he/she to be told to mail the form to the onward district where he/she intends to reside.

The instructions on the Seattle District Guidelines for Humanitarian Parole Request provide that The Seattle district will not grant parole to an alien who is entering to reside permanently in another districts jurisdiction, without concurrence of that district. If the parolee will be filing for adjustment of status in another district! s jurisdiction, you must contact the appropriate district or sub-office for concurrence.

This instruction means just that. It does NOT mean file the Form I-131 at the other district. Only the Seattle District Director or the Assistant Commissioner has jurisdiction to parole an alien at one of our POEs. It also does NOT mean mail the Form I-131 to Seattle. If the alien is/will file a Form I-131 at our POE, he/she may wish to contact or have his/her company, or the U.S.C. petitioner, etc., contact the onward office in advance, in order to better plead the case, and/or to save time.

The officer receiving the Form I-131 when filed at the port should immediately record the fee, check the Form I-131 AND the ' Attachment to Form I-131 and any documentation for completeness, accuracy, complete addresses, legibility, "A" file number if the alien has one, and for documentation to meet the requirements of Guidelines for Humanitarian Parole Request. The officer should then check any appropriate data bases and attach a printout of the alien's criminal record, lookout entry, or other information having a bearing on the decision to parole. If the form is not properly filled out or documented, the officer should so advise the alien or applicant, and allow him/her to supplement or correct the deficiency. The officer should then present the complete Form I-131 package to his/her supervisor for decision.

If the application is approved for multiple entries, the POE should request the alien provide pictures, as required by the instructions to Form I-131. If the alien does not have pictures, and has an urgent need to travel as soon as possible, the POE may take the pictures with a Service Camera. A picture should then be attached to the authorization letter or to Form I-94 with glue. The Service Dry Seal, or Maceration Die if available, is to be imprinted on the authorization letter or Form I-94, overlapping part of the picture.

We may not app rove a parole until we are satisfied that the fee has been paid, or has been waived. In accordance with 8 CFR 103.7(a), fees must be collected for any application or petition for which a fee is prescribed. Failure to collect the proper fee is a violation of law. The conditions under which the fee may be waived are contained at 8 CFR 103.7(c).

The fee may be waived whenever the alien is entering at the request of any U.S. or Canadian Federal, state, or local agency, and may also be waived for humanitarian reasons. Examples of humanitarian reasons would include inability to pay (but this should be weighed against the purpose for entering in deciding to approve or deny parole) and sponsorship by charities, etc. A good example for approval of a fee waiver would be the Make-a-Wish children who are going to Disneyland, etc., where the Make-a-Wish Foundation would actually be paying the fee.

Copies of the parole applications and supporting documents should be forwarded to the applicants "A" file, if any. If no "A" file exists or need be created to house the application, all copies should be retained at the port of entry for at least one year.

Claims of aliens being given bad advice by Service employees or Information Centers must be carefully weighed. We do from time to time determine that an alien is given erroneous information and thus becomes entangled in an adverse situation not of his own making.

You must also be on the lookout for Port Shoppers. We have detected aliens who have "moved" to British Columbia from other parts of Canada and even from abroad due to a perceived more lenient parole policy here. We had one applicant who was traveling from Montreal to Chicago by way of Vancouver due to "more favorable flights."

CHALLENGE OF DECISION

Section 235(b)(3) of the Immigration and Nationality Act provides as follows:

Challenge of Decision. - The decision of the examining immigration officer, if favorable to the admission of any alien, shall be subject to challenge by any other immigration officer and such challenge shall operate to take the alien whose privilege to be admitted is so challenged, before an immigration judge for a proceeding under Section 240. (Emphasis supplied)

Officers are NOT to be mislead or confused by the above section. As stated, this Section only refers to admission. Section 212(5)(A) provides for the parole of aliens by the Attorney General. Pursuant to Title 8, Code of Federal Regulations, part 212.5(b), parole authority is exercised by the District Director or Chief Patrol Agent Service policy, as contained at Operation Instructions 212.5(a), provides that the authority of a district director to parole may not be exercised below the level of an officer in charge or an immigration inspector in charge of a port of entry. It is the Seattle District's policy, effective with this memorandum, that parole authority is not to be delegated below the level of a supervisory immigration inspector. Accordingly, port of entry personnel do not have the authority to refuse to honor a parole authorization or a Form I-512 issued by proper authority. Of course, if an inspector or port supervisor uncovers information during the inspection of an alien for whom parole has been approved, which the officer feels may not have been available during the adjudication of the application for parole, the inspector should bring that information to the attention of the officer who approved the application for parole, for possible revocation of the parole authorization.

CRIMINAL ALIENS

A criminal alien seeking a parole into the United States must establish that he is reformed and of good moral character. In view of the excessive length of time it takes to process Form I-192, and the fact that a high percentage of such forms are submitted by truckers whose livelihood depends on the ability to cross the border, it is the long standing policy of the Seattle District to be somewhat more lenient in approving parole, so long as we are satisfied the I-192 has been or immediately will be submitted, and is likely to be approved. Unfortunately, with the new fingerprint procedures, it now takes in excess of a year to process Form I-192. Since the waiver is only issued valid for one year, if we did not routinely grant parole to applicants, they would be in the position of needing to apply for the next year's waiver before the approval of the pending application. O.I. 212.5 limits parole authorization to a maximum of four (4) months. Thus, an applicant for a waiver on Form I-192 might find it necessary to apply for up to five (5) paroles to cover the period the waiver application is in process. We therefore generally issue parole documents for I-192 cases to be valid for six (6) months, even though not specifically authorized to do so.

WAIVER OF INADMISSIBILITY

In determining whether a waiver application is likely to be approved, the following guidelines should be considered. §212(D)(3)(A) provides for a waiver of inadmissibility in certain circumstances.

As a general guideline, waivers of inadmissibility are not granted until at least three (3) arrest free years after conviction and/or release from incarceration for minor convictions, such as Zero Tolerance, shoplifting, or simple possession of a small amount of marijuana; and five (5) years for more serious crimes, such as armed burglary or robbery, possession of narcotics, etc. Grave crimes, such as murder, smuggling or distribution of narcotics, sex crimes, or multiple crimes over a period of time will not only require a longer period of rehabilitation, but also persuasive evidence of reformation of character, before either a waiver or a parole should be approved.

A Waiver of Inadmissibility must be applied for if the alien is inadmissible on any ground involving criminal activities. Application for Waiver of Inadmissibility must be made on Form I-192. There is no provision for a waiver or an extension of a previously granted waiver to be made based on an oral or written request not on Form I-192.

The grounds of inadmissibility contained in Section 212(a)(2) of the I&N Act relate to persons who have been convicted of or have committed crimes involving moral turpitude, or persons who have been convicted of or whom the officer has reason to believe has committed any violation relating to the illicit possession of or traffic in narcotic drugs or marijuana. Thus a conviction is not always necessary, and a pardon from the persons government does not remove the grounds of inadmissibility. Aliens who have been arrested and processed under U.S. Customs Zero Tolerance Program, if properly and completely processed, may be required to obtain a waiver, and seek parole to enter during processing of the waiver application.

The grounds of inadmissibility contained at Section 212(a)(2)(A) of the I&N Act provide as follows:

"(ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of -- (II) a violation of (or a conspiracy or attempt\85aaa\to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act (21 U.S.C. 802), is excludable."

The Foreign Affairs Manual provides as follows: The Immigration Act of 1990 amended Section 212(a)(23) by converting (23)(A) in INA 212(A)(2)(A)(I)(II) AND 23(B) INTO INA 212(A)(2)(C). More significantly, an alien may now be found ineligible if he or she admits to committing the essential elements of a drug violation in lieu of a conviction under INA 2l2(A)(2)(A)(I)(II). A Controlled Substance (As defined in Section 102 of The Controlled Substances Act (21 U.S.C. 802)), applies to marijuana as well as other controlled substances which are defined in Section 102 of the Controlled Substances Act and in Title 21, Section 40.21((b) Exhibit IV. For the purpose of these notes, the term "marijuana" includes any of the various parts or products of the plant Cannabis Sativa L. such as bhang, ganga, charras, Indian hemp, dagga, hashish, and cannabis resin.

Matter of J, 2 I&N Dec. 285 (BIA 1945) and Matter of E-V-, 5 I&N Dec 194 (BIA 1953) are not controlling, since these decisions predate the revisions of Section 212(a)(2)(A) promulgated by The Immigration Act of 1990.

Technical Instructions for Medical Examination of Aliens in the United States, U.S. Department of

Health and Human Services, Centers for Disease Control, provides at III-13: C. Psychoactive

Substance Abuse, part 3. d. provides: If it is determined that the applicant is using or has used a

psychoactive substance, the physician must 1) determine whether the applicant is currently using

or has used the psychoactive substance in the last 3 years (for substances listed in section 202 of

the Controlled Substances Act), or in the last 2 years (for other psychoactive substances). Section

202 of the Controlled Substances Act includes, amphetamines and related substances,

cannabinoids, cocaine and related substances, hallucinogens, opioids and related substances,

phencyclidine (PCP) and related substances, and sedative, hypnotic, or anxiolytic substances

without prescription. Based on that criteria, a Class A Medical Certification can be easily obtained

if necessary.

Excludability Under Customs Zero Tolerance Fines, CO 235-C dated 25 October 1991 clarifies Section 212(a)(2)(A)(I)(II) of the Act, as follows:

The Immigration Act of 1990 broadened exclusion grounds for aliens who violate controlled substance laws. When former Sec. 212(a)(23) was divided into two separate grounds for exclusion, the new 212(a)(2)(A)(I)(II) for violators of controlled substance laws was revised to include both aliens who have been convicted of a controlled substance law violation and aliens who admit committing the essential elements of a violation. (Emphasis supplied)

However, the Inspector's Field Manual, Chapter 17, Technical Notes 17.17 provides as follows:

(a) Inadmissibility Based on Customs Zero Tolerance Regulations Enforcement. The Customs Service has a "Zero Tolerance Program" in which subjects found with controlled substances are required to pay a fine in addition to seizure of the controlled substance. When an alien signs a Customs' Service form "Agreement to Pay Monetary Penalty," acknowledging that Customs has seized a specified amount of a controlled substance, and that Customs has fined the alien a specified amount, it will not usually be sufficient to Place the alien in removal proceedings under section 212(a)(2)(A)(i)(11). General Counsel legal Opinion No. 95-4, "Excludability under Customs Zero Tolerance Fines, addresses this issue. Generally, for an admission to lead to inadmissibility under this section, there must be a high degree of specificity as to the basis of the admission. An alien must admit violating a specific controlled substance statute, with reference to the specific statute and to the factual elements that would have to be proved to establish a conviction for the offense. As always, Service officers should be aware of and consider alternative grounds of inadmissibility. The circumstances of a seizure may indicate for example, that an alien is inadmissible under section 212(a)(2)(C) as an alien who there is reason to believe is or has been a controlled substance trafficker. When an alien is placed in removal proceedings, this action should be taken regardless of whether the relevant violation occurred during the current application for admission or a prior one. In assembling evidence for the proceeding, insure the availability of Customs records.

The cited General Council opinion was issued based on a disagreement in the handling of a case in this district. The General Council opinion is in opposition to the. above citations of law and policy not only from INS, but also the Department of State. I would also like to point out that Matter of lzummi ID 3360 (INS 1998) held that Opinions of the General Counsel are not binding on Service officers in adjudicating cases., The mission of the Office of the General Counsel is to provide legal advice to the Commissioner and to service Officers in the performance of their duties. (See 8 CFR 103.1(b) and 8 CFR 100.2(a)(1)). I have previously provided numerous BIA decisions to POEs which upheld the denial of Forms l-192 in Zero Tolerance cases. In any case, it behooves all officers to coordinate with Customs in the proper processing and documentation of Zero Tolerance cases.

PAROLE FOR REMOVAL PROCEEDINGS

Generally, it is district policy not to approve parole of an alien to consult with an attorney unless he/she is within 30 days of a scheduled hearing. Exception is made in the case of an LPR, -as follows:

An alien who holds or has held status as a Lawful Permanent Resident should generally be paroled pending removal proceedings.

In Dabone v. Kam, 763 F.2d 593 (3rd Cir. 1985, The court ruled that, before a lawful permanent resident's elevated status can be taken away the INS must conduct proceedings in which it bears the burden of proof.

The BIA in Matter of Huang, Int. Dec. 3079 (BIA 1988) ruled that the burden of proof is a heavy one, necessitating clear, convincing, and unequivocal evidence.

The Board has further held in Huang, Supra, that the definition of "lawfully admitted for permanent residence" does not incorporate the INA's separate definition of "residence" as a person's "actual dwelling place in fact regardless of intent."

The use of a nonimmigrant visa to enter the U.S. does not necessarily indicate relinquishment of LPR status, as Department of State guidelines provide that, as a matter of convenience, an alien may obtain such a visa when time does not permit obtaining a Returning Resident Visa (9 FAM, note 1.3 to 22 CFR § 42.22).

In view of these decisions, it is Service policy that an alien placed in exclusion who has a colorable claim to LPR status will generally be paroled pending a final determination of status.

NATIONAL INTEREST PAROLES

Parole in the National Interest, i.e.; for Law Enforcement purposes, fire or electrical emergencies, or International Events may be granted in any bona fide situation.

International Events in the past have included parole for participants in cultural events that benefit the general public, such as non paid performers for religious or cultural events, and paid performers for the Seattle Children's Theater and similar events, where Lincoln has delayed in processing petitions in a timely manner.

The U.S. Forest Service and the Electrical companies have agreed to seek emergency parole of Canadian crews only after exhaustion of available U.S. crews. We routinely parole Canadian emergency fire and electrical crews upon written assurances from the Forestry Service or electrical companies that there is not sufficient U.S. crews available. All crew members are to be checked in TECS and other automated lookout systems, and those with serious criminal records are not to be paroled.

We developed a Memorandum of Understanding between this District and U.S. Customs. Although U.S. Customs refused to sign the memorandum of understanding, it should be carefully studied as a guideline for paroling inadmissible aliens at the request of law enforcement agencies. It provides as follows:

MEMORANDUM OF UNDERSTANDING

This is a Memorandum of Understanding concerning the Parole of Inadmissible Aliens through a Port of Entry of the Seattle District of the Immigration and Naturalization Service (INS, Seattle) This agreement will set the circumstances and controls under which the INS, Seattle will parole such am at the request of any law enforcement agency.

The aliens being paroled run the gamut from drug smugglers or other criminals detected during an inspection being paroled for prosecution, to informants, to requests that aliens suspected of drug smuggling be "let through" so that the agents can follow them in hopes of arresting them and other criminals involved in a ring at the time the drugs are delivered, to alien criminals being paroled to testify or to stand trial for crimes committed in the U.S. Agencies requesting such paroles include local, county, and state agencies, and U.S. Customs, FBI, U.S. Attorney, and the Drug Enforcement Agency.

Historical Background

In 1974, the INS instituted a policy of requiring that all requests for parole of criminal aliens by the DEA be forwarded to the Central Office, who would seek the review of DOJ Criminal Division. At some point not documented in our records, this policy was relaxed. This district instituted a policy in 1976 of requiring a written request from other agencies before we would parole an inadmissible alien to the custody of the agency, including the execution of a Form I-247 Detainer. Sometime after that date, this district began the policy of requiring the agencies to sign for and accept responsibility for the aliens paroled to their custody. In 1977 the policy of requiring requests for parole by DEA to be processed through Central Office was reiterated by INS.

In 1983, the authority to parole inadmissible aliens was delegated to the District Directors, and guidelines given for the exercise of that authority. In 1988, this district reiterated the policy of requiring the agency seeking parole to request the parole in writing. In 1992 the INS instituted the policy of requiring that all requests for parole of an alien be made on Form I-131, and provided that the fee could be waived when the request was from another law enforcement agency.

In Mid 1994, INS reinforced the procedure of serving Form I-247 detainer on the agency with custody of the alien. In December 1994, INS Seattle instituted the practice of requiring the requesting agency to sign a statement at the bottom of Form I-247 acknowledging their responsibility to ensure the departure from the U.S. of a paroled alien after the purpose for which he had been paroled was completed. This requirement was instituted pursuant to 8 CFR 212.5(a), which permits the placing of appropriate conditions before an alien will be paroled.

Procedures

1. All agencies will submit Form I-131, Application for Parole of Alien, to the Port Director of the Port of Entry through which the alien will enter. The fee of $70.00 on Form I-131 is waived for law enforcement agencies. Form I-131 may be submitted at any time prior to the parole of the alien. In cases where the biographic identify and information of an alien is unknown, such as an unknown criminal being "passed" through the port to be followed, the agency may submit a standard skeleton "John Doe" application.

In the case of parole of an informant or a "pass through", it will be the responsibility of the controlling agency to keep aware of the aliens whereabouts and activities. It will also be the controlling agencies responsibility to ensure that the alien departs the United States when the purpose for which he/she was paroled has been accomplished.

Aliens Paroled for Prosecution

2. If prosecution is authorized and the alien is incarcerated, the controlling agency will serve Form I-247 Detainer on the detaining facility. The INS port staff will provide a completed Form I-247, in those cases where such is appropriate, at the time of parole. In the case of a John Doe request, the Form I-247 will be provided in blank form, and the controlling agency should insert the biographic information at the time the Form I-247 is delivered to the detaining institution. At completion of any sentence served, INS will remove the convicted alien from the United States.

3. If prosecution is declined, the alien is released on his own recognizance, or is otherwise not to be incarcerated, it will be the responsibility of the controlling agency to remove the alien from the United States.

4. Copies of all Form I-247 Detainers are to be provided to the Seattle District Investigations Division.

PAROLE FOR MEDICAL TREATMENT

The most common paroles for medical treatment are in behalf of patients seeking treatment for drug addictions or aids. In most cases applicants undergoing treatment for either of these conditions are less likely to be of good moral character and/or are likely to represent a risk to the community. Treatment for both conditions is readily available in Canada. Solid evidence of need for treatment in the U.S., unavailability of treatment in Canada, and of good moral character should be established before parole.

Before parole is authorized, the ability to pay for the treatment must be demonstrated. Section 212(a)(4) of the Immigration and Nationality Act provides that aliens who are likely to become public charges are to be excluded from the United States. Thus, if the treatment is to be financed, either directly or indirectly, from public funds, parole should be denied. Discretion must be carefully exercised, as adverse publicity is particularly likely to follow a denial. We must be able to defend against any claims of abuse of discretion.

PAROLE OF ALYSSA AND REFUGEES

An asylee or a refugee is entitled to a Refugee Travel Document. It is common for a refugee to travel to Canada without a Refugee Travel Document due to ignorance. An asylee or a refugee who has made a brief or casual departure to Canada should be routinely paroled to resume asylee or refugee status. However, an asylee or refugee may in fact be returning from a visit to his/her home country, entering through Canada to disguise that fact. Search of his person and effects may reveal a hidden Refugee Travel Document or a passport recently issued by higher government with stamps to establish where he/she has traveled.

You must also distinguish between whether the subject is in fact, an asylee or a refugee, or merely an applicant for status as an asylee.

Section 208 of the Act provides that an asylee or refugee who returns to his/her country of claimed persecution or acquires a new protective nationality may be presumed to have abandoned his status as an asylee or refugee.

8 CFR 208.8(a) provides that an applicant for asylum who leaves the United States without first obtaining advance parole under See. 212.5(e) shall be presumed to have abandoned his or her application for asylum.

8 CFR 208.8(b) provides that an applicant for asylum who leaves the United States pursuant to advance parole under Sec. 212.5(e) and returns to the country of claimed persecution, shall be presumed to have abandoned his or her application, unless the appl1icant is able to establish compelling reasons for such return.

PAROLE OF INTENDED IMMIGRANTS

Sec. 212.5(b) In the cases of all other arriving aliens, except those detained under Section 235.3(b) or (c) of this chapter and paragraph (a) of this section, the district director or chief patrol agent may, after review of the individual case, parole into the United States temporarily in accordance with section 212(d)(5)(A) of the Act any alien applicant for admission, under such terms and conditions, including those set forth in paragraph (c) of this section, as he or she may deem appropriate. An alien who arrives at a port-of-entry and applies for parole into the United States for the sole purpose of seeking adjustment of status under section 245A of the AM without benefit of advance authorization as described in paragraph (a) of this section shall be denied parole and detained for removal accordance with the provisions of § 235.3(b) or (c) of this chapter. An alien seeking to enter the United States for the sole purpose of applying for adjustment of status under section 210 of the Act shall be denied parole and detained for removal under § 235.3(b) or (c) of this chapter....

From the above. it is clear that mere marriage to a U.S. citizen is not grounds for parole. In order to qualify, an intended immigrant must clearly establish Urgent Humanitarian or Significant National Interest benefits well beyond a desire to be united with a spouse or parent. Officers considering parole must also determine the circumstances under which the marriage was entered into.

8 CFR 204.2(a)(1)(B)(5)(iii) Marriage during proceedings - general prohibition against approval of visa petition. A visa petition filed on behalf of an alien by a United States citizen or a lawful perm anent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Determination of commencement and termination of proceedings and exemptions shall be in accordance with § 245.1 (c)(9) of this chapter, except that the burden in visa petition proceedings to establish eligibility for the exemption in § 245.1 (c)(9)(iii)(F) of this chapter shall rest with the petitioner.

8 CFR 204.2(a)(1)(B)(5)(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the alien's file.

Thus, if an alien is determined to be ineligible for approval of a Relative Visa Petition pursuant to the above, parole should be denied.

Approvals in adjustment of status cases should be approved for a year to allow for the entire period of processing of the adjustment case.

INSTRUCTIONS TO APPLICANTS FOR PAROLE

Below is listed information which may be useful in responding to Frequently Asked Questions (FAQs) from alien applicants for parole or their U.S. relatives.

Pursuant to Service policy, as provided in Operations Instructions 212.5(c)(6), the parole of an alien presently abroad may only be authorized by the Assistant Commissioner, Refugees, Asylum, and Parole, at our Headquarters in Washington, D.C. The Assistant Commissioner has delegated the parole authority for aliens overseas to the district directors at: Rome; for Europe, India, Africa, Pakistan, Bangladesh, the middle East and countries of the former Soviet Union; Bangkok for Asia, Southeast Asia, Australia, New Zealand, the Philippines, and the Pacific; and Mexico City for Central and South America and the Caribbean. The Assistant Commissioner has also delegated authority for the parole of aliens at ports of entry along the contiguous borders and off shore islands of the U.S. to the District Directors having jurisdiction over those ports of entry. Thus, this district only has authority to grant humanitarian parole to an alien who applies while physically (or constructively) present at a Seattle District port of entry.

The Seattle District only has jurisdiction to parole an alien applying for entry at a port of entry in Washington, Idaho, or British Columbia.

Parole is not used to circumvent Normal Visa Issuance Procedures, nor as an instrument to bypass the unavailability of preference Immigrant Visa Numbers. Parole is an extraordinary measure, sparingly utilized to bring otherwise inadmissible aliens into the United States in cases of urgent humanitarian circumstances or significant national interest

You may obtain forms and apply at any port of entry. There is no provision for the issuance or extension of parole authorization except upon submission of Form I-131. We cannot preadjudicate requests prior to the submission of the required application and fee.

You must indicate the Port of Entry where the applicant will enter the U.S. (Part 7 of Form I-131).

You must provide (Foreign) and intended (U.S.) Addresses.

You must provide (Foreign) and/or (U.S.) Employer and the employers address(es), if any.

You must provide "A" file number, if any.

You must provide a copy/explanation of any criminal history.

An applicant in Removal Proceedings may generally only be paroled for the hearing plus a maximum of 30 days for legal preparation.

If humanitarian parole is sought; you must provide an explanation and documentation establishing Urgent Humanitarian Circumstances. THESE DO NOT include loneliness, minor financial difficulties, or the mere desire to be reunited with a loved one. Urgent Humanitarian Circumstances are not established by failure to plan ahead, or to take required actions, such as submission of applications or petitions in a timely manner. Urgent Humanitarian Circumstances involve a serious or life threatening situation which could not have been reasonably foreseen or prevented.

If you are seeking a National Interest Parole, you must provide an explanation and documentation Establishing National Interest. This requires that a U.S. Government Agency, organization or contractor, or a significant public corporation or organization, provide documentation clearly articulating the applicants particular skills or expertise, or the need for the aliens presence in the U.S., and explaining how the mission or function of the organization will be jeopardized if the person is not paroled into the U.S. If the requester is a Branch of the U.S. Armed Forces, submit a copy of the alien's or sponsor's current enlistment and assignment orders, and provide a letter, on official letterhead, signed by an 0-6 or above, indicating the need for the individual and an explanation of how the interests of the military will be jeopardized if parole is not granted.

There is no provision for the extension of Form I-512 or Parole Authorization Letter. O.I. 212.5(d) authorizes issuance of Form I-512 for multiple entries to a maximum of 120 days. The period for which an alien may be paroled at entry varies, depending on the circumstances of parole, from one day to indefinitely. Once paroled, extensions of parole may be authorized to remain in the U.S. upon written request However, once an alien departs the U.S., he/she may be re-paroled, if appropriate, only upon presentation of a valid multiple entry Form I-512, I-94, or Parole Authorization Letter. Once Form I-512, I-94, or a Parole Authorization Letter has expired, a new application for parole on Form I-131 must be submitted and approved before a subject may again be paroled at a port of entry.

Waivers are generally granted for a Maximum of one (1) year. Each renewal must be applied for on Form I-192.

The normal processing period for Form I-192 is Six (6) Months to over a year. These applications are processed at remote locations. It is therefore very difficult and time consuming to track a case during processing. Status inquiries will only be honored when a case is clearly overdue (past a year).

If an alien has an emergent need to enter the U.S., he/she may apply for a humanitarian or public interest parole on Form I-131 while awaiting processing of a waiver application. One may obtain the form and file it at any port of entry.

If an inadmissible alien attempts to enter the U.S. without a waiver or parole, he/she, and anyone accompanying him/her, may be subject to prosecution, and any vehicle to seizure.