1 An alien may obtain judicial review of a final order of exclusion "by habeas corpus

proceedings and not otherwise." 8 U.S.C.A. § 1105a(b) (West 1970). United States Court of Appeals,

Fifth Circuit.

No. 91-6204.

Israel Lozano MOLINA, Plaintiff-Appellant,

v.

Omer G. SEWELL, District Director, Immigration and Naturalization Service, et al., DefendantsAppellees.

Feb. 22, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, JOHNSON, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Israel Lozano Molina, an alien, was admitted as a lawful permanent resident of the Unit ed

States in 1980. Five years later he was convicted of a crime involving marihuana, for which the INS

commenced deportati on proceedings. Out on bond pending deport at ion proceedings, Lozano

departed to Mexico. Upon his same-day return to the States, Lozano was detained at the border and

placed in exclusion proceedings. The Immigration Judge (IJ) found him excludable, and his appeal

to the Board of Immigration Appeals (BIA) was dismissed. He now appeals summary dismissal of

his petition for writ of habeas corpus 1 seeking review of the order of exclusion. Finding prejudicial

error in the IJ's failure to advise Lozano of his rights, we vacate and remand.

I. Were Exclusion Proceedings Proper?

Because Lozano was a permanent resident who was returning to the United States from a

day trip to Mexico, the question whether his arrival was an "entry" into this country looms like a dark

cloud over this case. Although this question has never been fully litigated, only aliens seeking to

"enter" are subject to exclusion. Landon v. Plasencia, 459 U.S. 21, 28, 103 S.Ct. 321, 326, 74

L.Ed.2d 21 (1982) (interpreting 8 U.S.C.A. § 1226(a) (West 1970)).

Lozano asserts that the question whether he was maki ng an "entry" should have beendetermined first. The Government and the IJ assumed that Lozano was making an entry, and he put

on no evidence to the contrary.

II. Why No Evidence on "Entry"?

Lozano contends that it was the Government's burden to establish that he was seeking "entry"

in t o t he Unit ed States. We disagree. The alien bears the burden to prove he comes within the

statutory exception to the entry definition. D abone v. Karn, 763 F.2d 593, 597 (3d Cir.1985). The

statute defining entry provides in part, "an alien having a lawful permanent residence

... shall not be

regarded as making an e ntry into the Uni ted States ... i f the alien proves to the satisfaction of the

Attorney General" that his departure to a foreign port was unintended or involuntary. 8 U.S.C.A.

§ 1101(a)(13) (West 1970) (emphasis added).

Dabone distinguishes, and we think correctly, the burden of proving the statutory exception

to "ent ry"—t he alien's burden—from the burden of proving that a permanent resident alien is

excludable—the INS's burden. D abone at 597. Similarly, if the alien desires to show that he comes

within the " "jud icial gloss' ... added to the statutory definition [of entry] by the Supreme Court's

decision in Rosenberg v. Fleuti, 374 U.S. 449 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963)," the burden

is still on the alien. D abone, 763 F.2d at 596. ( F leuti

, discussed below, hel d that the statute's

"unintended or involuntary" exception requires an intent to depart in a "meaningfully interruptive"

manner).

Although we disagree with Lozano that the burden to prove "entry" was on the Government

rather than the alien, Lozano's failure to raise the issue before the IJ was excused in this case. After

a couple of conti nuances, the IJ proceeded with the exclusion hearing despite Lozano's failure to

secure counsel. Upon Lozano's admission that he had been convicted of a crime involving marihuana,

the IJ concluded that no relief from exclusion was available to him and found Lozano to be

excludable. Contrary to INS regulations, however, Lozano was never advised that he had the

opportunity to put on evidence on his behalf.

On appeal to the BIA Lozano argued that the IJ erred in failing to advise him of his rights.

The regulations provide that the IJ shallinform the applicant of the nature and purpose of the hearing; advise him of the privilege of

being represented by an attorney

... and the availabilit y of free legal services ...; [and] advise

him th at he will have a reasonable opportunity to present evidence on his own behalf, to

examine and object to evidence against him, and to cross-examine witnesses presented by the

Government.

8 C.F.R. § 236.2(a) (1992).

While the BIA agreed that Lozano had not been advised of his right to present evidence or

object to the Government's evidence, it concluded that Lozano had failed to allege or establish that

he had been prejudiced by the omission. To prove that administrative proceedings should be

invalidated for violation of regulations, an alien must show substantial prejudice. S ee Ka Fung Chan

v. INS, 634 F.2d 248, 258 (5th Cir. Jan. 1981). Although no evidence of entry was adduced before

the IJ, the BIA and the district court concluded that Lozano was effecting an entry as a matter of law.

The narrower questions become whether Lozano "entered" as a matter of law and whether he was

prejudiced by his failure to present evidence on entry.

III. Did Lozano "Enter" as a Matter of Law?

The statute defines "entry" as

any coming of an alien into the United States

... except t hat an alien having a lawful

permanent residence in the United States shall not be regarded as making an entry

... if the

alien proves to the satisfaction of the Attorney General that his departure

... was not intended

or reasonably to be expected by him o r his presence in a foreign

... place was not voluntary:

Provided, That no person whose depart ure from the United States was occasioned by

deportati on proceedings, extradition, or other legal process shall be held to be entitled to such

exception.

8 U.S.C.A. § 1101(a)(13) (West 1970).

The Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000

(1963), co nst rued the "intent" exception in this statute. F leuti held that a resident alien does not

effect an "entry" for purposes of § 1101(a)(13) when he returns from an "innocent, casual, and brief

excursion" outside the United States ; rat her, such an alien effects an entry only if he intended to

depart in a manner "meaningfully interruptive" of his permanent residence. Fleuti at 462, 83 S.Ct.

at 1812.

In dismissing Lozano's appeal, the BIA observed that, because Lozano was subject to

deportati on proceedings when he departed, "his departure would probably be consi dered to be a2 3 R. 78. The BIA was apparently acknowledging the Fleuti requirement of a meaningful

interruption rather than the statutory reference to deportation proceedings; there has been no

suggestion that Lozano's departure was "occasioned by deportation proceedings," 8 U.S.C.A. §

1101(a)(13), so as to subject him to the statutory exception.

3 Petitioner correctly argues that questions of law should have been reviewed by the district

court de novo, rather than for abuse of discretion. See 5 U.S.C.A. § 706 (West 1977) (providing

that regarding an agency's order, "the reviewing court shall decide all relevant questions of law");

see also Baker v. Metcalfe, 633 F.2d 1198, 1201 (5th Cir.) (reviewing conclusions of law in a

habeas corpus case de novo), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981). meaningful one." 2 The district court, too, found that Lozano effect ed an entry because pending

deportation proceedings made his absence significant:

[Lozano] indicates that he was not advised of his rights to present evidence with regards to

the exclusion hearing. However, the court is going to note that he has not alleged that he was

prejudiced by his inabilit

y to present evidence on this point. He was—they were proceeding

on the fact that he had a drug conviction and it is well settled that when an alien departs the

U.S. while under deportati on proceedings as I said, his absence is not brief, or innocent, and

therefore he effects an entry when he returned from the absence, and therefore, based on my findings with regards to that there has been no abuse [of discretion].... 3

4 R. 4. Both the district court and the BIA concluded that pending deportation proceedings made

Lo zano 's departure "meaningful" under F leuti and his return to this country an "entry" u nder the

statute.

Arguing that Lozano was "entering" as a matter of law because of pending deportation

proceedings, the Government cites In re Becerra-Mira nda, 12 I. & N. Dec. 358 (BIA 1967).

Alt ho ugh Becerra had briefly departed to Mexico, the BIA found him subject to exclusio n

proceedings under such circumstances:

It is our belief that the reasonable man, being advised that deport a tion proceedings were pending against him, ... would have been put on notice that the continuance and legality of

his status in the United States was in question. A departure from the country, for no matter

what purpose, under those circumstances could reasonably be assumed to carry with it the

possibility that it might change the applicant's status in the United States and his abilit y to

reenter.

Becerra-Miranda, 12 I. & N. Dec. at 363.

We decline to follow Becerra. We consider such a purely objective standard as the B ecerra

court applied contrary to the subjective Fleuti inquiry. F leuti held that whether a permanent resident

alien effects an "entry" depends on whether he intended to depart in a manner meaningfully4 This court has drawn fine distinctions in conducting a subjective inquiry. See VargasBanuelos v. INS, 466 F.2d 1371, 1372-74 (5th Cir.1972) (concluding that an alien who formed

the intent to commit a crime after he departed did not depart for an unlawful purpose under the

Fleuti analysis). Other circuits also consider the subjective purpose of an alien's departure. E.g.,

Jubilado v. United States, 819 F.2d 210, 213-14 (9th Cir.1987) (concluding that an alien's return

after three months did not constitute an entry because the purpose of his trip and his intent were

to preserve and continue permanent resident status). interruptive of his permanent residence. F leuti, 374 U.S. at 462, 83 S.Ct. at 1812. The F leuti Court

identified three factors relevant to the intent inquiry: 1) the length of time the alien is absent, 2) the

purpose of the visit, and 3) whether travel documents were required. Id. Fleuti thus considers the

intent of the alien and the purpose of the trip. 4

Landon v. Plasencia also dissuades us from adopting the Becerra rule. L andon recognized

tha t , unlike an alien seeking to enter the United States for the first time, a returning resident alien

retains a constitutional right to due process. 459 U.S. at 32-33. The fact that an alien is subject to

deportati on proceedi ngs does not affect his status as a permanent resident alien. A permanent

resident al

ien's st atus terminates only when the order of deportation is affirmed by the BIA or

otherwise becomes administratively final. R ivera v. INS, 810 F.2d 540, 542 (5th Cir.1987); s ee also

8 U.S.C.A. § 1101(a)(20) (West 1970) (defining "lawfully admitted for permanent residence" as "the

status of having been lawfully accorded the privilege of residing permanently in the U.S.... such status

not having changed

") (emphasis added).

Lozano was indisputably a permanent resident alien when he departed to Mexico. Although

he was subject to de po rt at io n proceedings, no final order had issued. To conclude that upon his

return to the United States Lozano effected an "entry" as a matter of law is inconsistent with the due

process requirements of Landon and contrary to the subjective inquiry mand ated by F leuti. The

conclusion that Lozano could not have prevailed as a matter of law on his "entry" claim is incorrect.

IV. Did Lozano Establish Prejudice?

In dismissing Lozano's appeal, the BIA concluded that Lozano established no prejudice by

the IJ's failure to advise him of his rights because he could not show that a motion to terminate the

proceedings might have been successful. The district court, too, found that Lozano had not alleged

prejudice from the IJ's failure to advise him of his right to present evidence.In his appeal to the BIA, Lozano indeed alleged that he was prejudiced by the IJ's failure to

advise him of his right to present evidence. He asserted t hat the oversight "deprived [him] of a

reasonable opportuni ty to explain the very brief departure, dictated by emergent family reasons, which

caused him to be placed in exclusion proceedings. Had this issue been explored, the grounds for a

motion to terminate exclusion proceedings

... would have been apparent." 3 R. 42 (BIA Br. of Mr.

Lozano at 8).

Had Lozano been able to persuade the IJ with h is evidence that his trip to Mexico was

"innocent, casual, and brief," the exclusion proceedings would have been terminated: Lozano would

have established that he was not "entering" the United States within the meaning of § 1101(a)(13)

as construed in Fleuti. Lozano has suggested that, given the opportunity, he would have shown that

he was not subject to exclusion proceedings. Accordingly, Lozano has adequately established

prejudice in not having been offered an opportunity to put on evidence.

V. New Evidence for the IJ

Alternative grounds for o ur ruling exist. The district court's and BIA's conclusions that

Lozano could not have prevailed on his "entry" claim relied upon facts not raised before the IJ—that

Lozano was subject to deportation proceedings at the time of his departure to Mexico. The INS's

repl y brief before the BIA first mentioned Lozano's pending deportation proceedings, although

nothing in the record reflected such pending proceedings. Lozano replied with a motion to strike the

INS brief (because it contained references to extra-record material) or, in the alternative, to augment

the record with affidavits.

Lozano's affidavit described that his departure to Mexico lasted less than one day and declared

that he had asked his mother to go with him to the exclusion hearing so that she could "explain about

the trip." Lozano also filed a motion to terminate the exclusion proceedings. The BIA did not rule

on these motions before dismissing Lozano's appeal. The BIA subsequently considered the motions

and denied them as both procedurally improper and without merit.

We therefore hold, alternatively, that the BIA abused its discretion in relying upon the INS's

statements regarding facts not in evidence before the IJ, while refu sing t o consider the affidavitssubmitted by Lozano. S ee Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.1992) (concluding that BIA

abused its discretion in failing to remand to IJ for consideration of evidence that was not before the

IJ), petition for cert. filed, 61 U.S.L.W. 3420 (U.S. Nov. 20, 1992) (No. 92-872).

CONCLUSION

Because Lozano has adequately alleged prejudice in the violation of an INS regulation, the

writ should be granted, the exclusion order vacated, and the matter remanded so that Lozano can be

heard on his motion to terminate exclusion proceedings.

VACATED and REMANDED.