On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A095-815-044) Immigration Judge: Honorable Margaret Reichenberg.
Submitted Pursuant to Third Circuit LAR 34.1(a) January 12, 2010.
Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges.
Neema Patel, a citizen of India, petitions for review of the BIA decision upholding the denial of her motion to terminate removal proceedings. Her petition presents the question of whether the confidentiality provisions of section 245A(c)(5) of the Immigration and Nationality Act ("INA") apply to an application for employment authorization submitted by the child of a Legal Immigration Family Equity ("LIFE") Act adjustment-of-status applicant. For the reasons that follow, we agree with the BIA that they do not, and we will deny the petition for review.
In 1986, Congress enacted the Immigration Reform and Control Act ("IRCA"), which created a legalization program that "allow[ed] existing undocumented aliens to emerge from the shadows" and gain legal residency in the United States. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483 (1991). IRCA provided undocumented aliens who had resided continuously in the United States since January 1982 with the opportunity to apply for legal resident status. In 2000, IRCA was modified by the LIFE Act and its amendments. See LIFE Act Amendments, Pub. L. No. 106-554, § 1504, 114 Stat. 2763, 2763A-325 (2000); LIFE Act, Pub. L. No. 106-553, § 1104, 114 Stat. 2762, 2762A-146-49 (2000). The LIFE Act, as amended, gave class members in three class-action cases a new opportunity to apply for lawful permanent residency. See LIFE Act Amendments § 1503(a); LIFE Act § 1104. Additionally, it permitted the spouse and unmarried children of an eligible alien to stay in the United States and obtain work authorization. See LIFE Act Amendments § 1504; 8 C.F.R. § 245a.31.
To encourage eligible aliens to seek lawful residency status, section 1104(c)(5) of the LIFE Act afforded applicants protection under INA § 245A(c)(5) [8 U.S.C. § 1255a(c)(5)].*fn1
Section 1104(c)(5) reads, in pertinent part: "Subsection (c)(5) of [INA] section 245A shall apply to information furnished by an eligible alien described in [LIFE Act section 1104(b)] pursuant to any application filed under such section 245A or this section . . . ."
Patel entered the United States in 1988 without inspection. Patel's father later submitted an application under LIFE Act section 1104 for an adjustment to lawful permanent resident status. While that application was pending, Petitioner filed an application for work authorization under section 1504 of the LIFE Act Amendments Family Unity Provisions.*fn2 Her application was denied and, based on her admissions in the application, removal proceedings were initiated against her.
Before the IJ, Patel filed a motion to terminate the removal proceedings. She admitted that she was ineligible for adjustment of status under section 1104(b), but argued that the confidentiality provisions of INA § 245A(c)(5) prevented the government from using her section 1504(b) employment application for the purpose of removal proceedings. The IJ denied Patel's motion and ultimately granted her voluntary departure. Patel appealed, arguing that the IJ incorrectly denied her motion to terminate the removal proceedings. The BIA upheld the IJ's decision, reasoning that, on its face, section ...