Interim Decision #3235
MATTER OF GRINBERG
In Deportation Proceedings
A 71571961
-
Decided by Board November 22, 1994
Notwithstanding a clerical error in the redundant designation of "section 245(1)" of
the Immigration and Nationality Act, to be codified at 8 U.S.C. § 1255(i), immigration
judges have jurisdiction to entertain applications for relief based on both the section
245(i) that was created through section 506(b) of the Departments of Commerce,
Justice, and State Appropriations Act for 1995,
Pub. L. No. 103-317, 108 Stat. 1724,
1765, and the separate section 245(i) that was created through section 130003 of the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103 322, 108
-
Stat. 1796, 2024.
CHARGE:
Orden Act of 1952—Sec. 241(a)(1)(3) [8 U.S.C. § 1251(a)(1)(13)1—Nonimrnipant—remained longer than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jolanta Kasztelewicz, Esquire Margaret Reichenberg
David M. Sturman, Esquire General Attorney
The Atrium
16530 Ventura Boulevard, Suite 306
Encino, California 91436
BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
Alternate Board Member
In a decision dated October 4, 1994, an immigration judge found
the respondent deportable as a nonimmigrant who remained longer
than permitted, granted the respondent voluntary departure, and
denied his Motion to Request Additional Relief in the form of an
adjustment of status based on section 245(i) of the Immigration and
Nationality Act (to be codified at 8 U.S.C. § 1255(i)). The immigration judge found that he lacked jurisdiction to consider such an
application for relief, because the version of section 245(i) upon which
the respondent sought to rely had been superseded by subsequent
legislation- On October 6, 1994, the immigration judge certified his
decision to this Board for review pursuant to regulations at 8 C.F.R.
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Interim Decision #3235
§ 3.1(c) (1994). Upon consideration, the decision of the immigration
judge will be vacated, and the record will be remanded for further
proceedings.
The sole issue presented for our resolution upon certification is
whether an immigration judge has jurisdiction over applications for
relief based upon "section 245(i)" of the Act, as enacted on August 16,
1994, through section 506(b) of the Departments of Commerce,
Justice, and State Appropriations Act for 1995, Pub. L. 14b. 103 317, -
108 Stat. 1724, 1765 ("Appropriations Act"), in light of the unusual
fact that a new "section 245(i)" was enacted less than 3 weeks later
through section 130003 of the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2024
("Crime Control Act").' We conclude that both sections 245(i) are
effective, that they create separate adjustment eligibility provisions,
and that the immigration judge has jurisdiction over applications
based on these subsections.
We begin by observing that the object of statutory construction is to
determine congressional intent with respect to the legislation enacted.
The paramount index of congressional intent is the plain meaning of
the words used in the statute taken as a whole. INS v. CardozaFonseca, 480 US_ 421, 431 (1987); Phinpathya 17- INS, 464 U.S. 183,
189 (1984). Whenever possible, statutes should be read as consistent
with one another. Kremer v. Chemical Constr. Corp.,
456 U.S. 461,
468 (1982). Accordingly, we must not lightly presume that existing law
is repealed by subsequent legislation in the absence of clear legislative
language expressing an intent to repeal. lA N. Singer, Sutherland
Statutory Construction §§ 23.09, 23.10 (4th ed. 1985).
An examination of the words Congress used in the Crime Control
Act shows no evidence of any intent to repeal the original section
245(i), which Congress had enacted less than 3 weeks earlier in the
Appropriations Act, and which had not even gone into effect. Since
there was no expressed repeal of the provision in question, a
conclusion that the original section 245(i) was repealed could only be
reached upon a finding of repeal by implication. In this case, the
immigration judge made such a finding, determined that the later
enacted statute repealed the prior statute, and concluded that he had
no jurisdiction to entertain the respondent's application for adjustment of status.
We disagree with the immigration judge's conclusion. As the
Supreme Court has stated repeatedly over the course of more than a
'The legislative vehicles for these Acts, H.R. 4603 and H.R. 3355, 103d Congress, 2d
Sess. (1994), will be referred to as the "Appropriations Bill" and the "Crime Bill,"
respectively.
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Interim Decision #3235
century and a half, it is a cardinal rule of statutory construction that
repeals by implication are not favored. County of Yakirna v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251
(1992); United States v. Fausto,
484 U.S. 439 (1988); Georgia v.
Pennsylvanicz R.R. Co.,
324 U.S. 439, 456-57 (1945); Posadas v.
National City Bank,
296 U.S. 497 (1936); Wood v. United States,
41
U.S. 342 (18 42). Indeed, repeal by implication will not be found unless
intent to repeal is "clear and manifest." Rodriguez v. United States,
480 U.S. 522, 524 (1987) (citations omitted). Thus, "'[i]n the absence
of some affirmative showing of an intention to repeal, the only
permissible justification for a repeal by implication is when the earlier
and later statutes are irreconcilable."' St. Martin Evangelical Lutheran
Church v. South Dakota,
451 U.S. 772, 787 (1981) (quoting Morton v.
Mancari,
411 U.S. 535, 550 (1974); see also United States v.
Fausto,
supra (requhing "clear repugnancy"); Georgia v. Pennsylvania R.R.
Co., supra.
Applying these principles to the instant case, we observe that the
plain substantive language of the two enactments in question is not
irreconcilable, nor even slightly ambiguous as to the intended effect.
Rather, the relevant language evinces> a clear congressional intent to
add two separate, new provisions to existing law. Specifically, section
506(b) of the Appropriations Act created an exception to the usual
adjustment of status provisions, so that certain aliens who are out of
legal status, such as the respondent here, may nevertheless apply for
adjustment under section 245(a) of the Act. Section 130003 of the
Crime Control Act, on the other hand, offers the new possibility of
adjustment of status to a separate, newly created category of nonimmigrant aliens who have fulfilled a promise to supply the United States
with certain critical information. The substance of neither of these
provisions conflicts in any way with the substance of the other.
Further, as the Immigration and Naturalization Service correctly
points out in its well written brief in this matter, the legislative history
-
of the Crime Bill does not indicate an intent to repeal any existing law
under section 245. The Crime Control Act and the Appropriations Act
both indicates that the relevant amendment in each case creates a
"new" subsection under section 245 and that no existing portion of
that section is to be repealed. Each act states: "Section 245 of the
Immigration and Nationality Act, as amended (8 U.S.C. 1255), is
amended by .adding at the end thereof the following new subsection."
(Emphasis added).
We note that the bills in question made their way through the
legislative process more or less simultaneously. It could not have been
known with certainty when the relevant provisions were introduced
that either or both of the bills would be enacted as written—much less
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which would be enacted first. Thus, it is no surprise that each bill
designated its "new" subsection identically, as subsection "(i)," to
follow the existing subsections (a) through (h). All the relevant
evidence indicates that in the period of less than 3 weeks between the
passage of the Appropriations Bill and the Crime Bill, the duplication
of subsection "(i)" in the Crime Bill was simply overlooked.
In view of the foregoing, we conclude that the redundant subsection
designation at section 245 of the Act is properly understood for what it
clearly is, namely, a clerical oversight. Since there exists no inconsistency in the substantive language of the legislation in question, and
since there was no express repeal, our duty is to give force and effect to
both acts of Congress, and not to a clerical error. United States v.
Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83 (1932). 2
Accordingly, we conclude that the immigration judge in this case
had jurisdiction to entertain the respondent's application for adjustment of status under section 245(i) of the Act, and denial of the
respondent's prehearing "notion to apply for relief under this subsection was unnecessary. Consequently, the decision of the immigration
judge will be vacated and the record will be remanded for further
proceedings.
ORDER: The decision of the immigration judge is vacated.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing
opinion.
2 The Service argues erroneously in its brief that the Board owes substantial deference
to the Service's own administrative interpretation of the statutory law. See
59 Fed. Reg.
51,091, 51,094 (1994). However, we exercise our judgment independently of the Service,
and our decisions are binding on all officers and employees of the Service in the
administration of tho Aot. 8 C.F.R.§§ 2.1, 3.0, 3.1(e) (1994) (setting forth the authority
of the Board); see also United States ex rel. Accardi v. Shaughnessy,
347 U.S. 260 (1954)
(discussing the duty of the Board to exercise its own independent judgment where the
Attorney General has, by regulation, delegated this responsibility to the Board).
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