Succar v. Ashcroft

• Decision Date: 05 January 2005
• Docket Number: No. 03-2445.,03-2445.
• Citation: 394 F.3d 8
• Parties: Wissam SUCCAR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

394 F.3d 8

Wissam SUCCAR, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-2445.

United States Court of Appeals, First Circuit.

Heard October 7, 2004.

Decided January 5, 2005.

Saher J. Macarius for petitioner.

Anthony P. Nicastro, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, Barry J. Pettinato, Senior Litigation Counsel, and Anthony C. Payne, Attorney, Office of Immigration Litigation, Civil Division, United States Justice Department, were on brief, for respondent.

Mary Kenney, with whom Nadine K. Wettstein, American Immigration Law Foundation, Iris Gomez, and Massachusetts Law Reform Institute were on brief, for The American Immigration Law Foundation, Massachusetts Law Reform Institute, Massachusetts Immigrant and Refugee Advocacy Coalition, International Institute of Boston, and The Harvard Immigration and Refugee Clinic of Greater Boston Legal Services, amici curiae.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

This case raises issues of first impression in immigration law as to the validity of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R. § 245.1(c)(8). The regulation redefines certain aliens as ineligible to apply for adjustment of status to lawful permanent residents whom a statute, 8 U.S.C. § 1255(a), defines as eligible to apply. Under that regulation, the Attorney General will not consider an application for adjustment of status from the entire category of aliens who have been granted parole status but have been placed in removal proceedings.

The essence of the Attorney General's argument is that since he has been given ultimate discretion to deny adjustment of status after application, the validity of the regulation is itself not subject to judicial review, and, if it were, the regulation must be upheld as a permissible exercise of that ultimate discretion. We disagree on both points. We hold that there is no statutory bar to review and that the regulation is contrary to the language and intent of the statute, 8 U.S.C. § 1255(a). As a result we vacate the order removing Wissam Succar from the United States and remand for further proceedings.

Our reasons, which we explain in more depth below, are as follows. The mere fact that a statute gives the Attorney General discretion as to whether to grant relief after application does not by itself give the Attorney General the discretion to define eligibility for such relief. That is clear from INS v. Cardoza-Fonseca, 480 U.S. 421, 443, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Courts must still interpret the statute. Where the statute is silent on eligibility, the agency involved may reasonably choose to exercise its discretion to withhold relief by excluding certain persons from eligibility for such relief. Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001).

Here, the statute is not silent — it defines persons who have parole status as eligible for adjustment of status and does not carve out an exception for parolees who are in removal proceedings. See 8 U.S.C. § 1255. That lack of a carve out for parolees in removal proceedings is itself significant, given that the statute contains a number of carve outs as to eligibility for adjustment of status. Some carve outs exclude persons from eligibility to apply who would otherwise meet more general eligibility requirements. Further, other carve outs create eligibility in persons otherwise ineligible. Congress thus has created a comprehensive scheme.

Viewing the larger statutory context, we find Congress has also been explicit about where the Attorney General has been granted discretion and where he has not. By contrast with other areas, there is no explicit grant of discretion to redefine eligibility to apply for adjustment of status of parolees to exclude those in removal proceedings. Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria. See 8 U.S.C. §§ 1225(b)(1), (2). In addition, persons cannot be granted paroled status at all if they pose a security risk; they are to be ordered removed and this order must be reported to the Attorney General. 8 U.S.C. § 1255(c)(1).

The statutory scheme reflects Congress's careful balancing of the country's security needs against the national interests Congress wished to advance through adjustment of status proceedings. The regulation upsets the balance Congress created.

Checking our construction of the statute against the legislative history of section 1255, we find the regulation to be inconsistent with the intent expressed in the statute. In 1960, when Congress included paroled aliens as aliens who are eligible for adjustment of status relief through section 1255, it did so to solve certain problems, which we describe later. The effect of the regulation is to re-institute the problems Congress wished to solve. Further, until the 1997 promulgation of the regulation, the Attorney General had consistently interpreted section 1255 in a manner consistent with the statute and the legislative history and inconsistent with the 1997 regulation.

In response to the Attorney General's argument that the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) justifies the 1997 regulation, we note the Attorney General's concession that IIRIRA, which altered so much of the immigration laws, left untouched the language of section 1255, as enacted in 1960, on the matter in question. That being so, the relevance of the Attorney General's remaining arguments, largely based on general policy said to be embodied in IIRIRA, is doubtful. To the contrary, IIRIRA tends to strengthen, not weaken, the petitioner's claim that the regulation is invalid. Finally, the purported policy justifications of expediting removal of aliens and administrative ease must give way to clear congressional intent.

I.

Wissam Succar is a native and citizen of Lebanon. Succar arrived at Miami International Airport on October 21, 1998, when his flight from Lebanon to Panama stopped in the United States. He approached an official at the airport, stating that he wished to apply for asylum.

An immigration officer questioned Succar at the airport. Because Succar did not have the proper documentation for admission, he was taken into government custody and held at the Krome detention facility in Miami, Florida. An asylum pre-screening officer met with Succar on November 19, 1998, and determined that he had a credible fear of persecution based on his involvement with the Christian militias in Lebanon. The officer found that the facts as recounted by Succar could establish his eligibility for asylum and a credible fear of harm on the basis of an imputed political opinion. Succar was placed into removal proceedings and was subsequently paroled into the United States on November 30, 1998. Succar has remained in parole status.

Over one year later, on January 19, 2000, Succar admitted the allegations in the Notice to Appear and conceded removability; he renewed his application for asylum, withholding of removal, and protection under the Convention Against Torture. On March 1, 2000, a hearing was held on his asylum application and the trial was set for April 18, 2000. On April 18, after a hearing on the merits of his application, the Immigration Judge (IJ) denied Succar's request for asylum and withholding of removal. Succar appealed this decision to the Board of Immigration Appeals (BIA).

On February 19, 2001, while his appeal was pending before the BIA and while he was paroled into the United States, Succar married a United States citizen. Succar's wife filed an immigrant visa petition for him, and the petition was approved on April 26, 2001. The approval form directed Succar to contact the local INS office to obtain Form I-485, the application for adjustment of status to a permanent resident. Believing that he met the statutory eligibility requirements for adjustment of status, on October 17, 2001, Succar filed a motion with the BIA to remand the proceedings to the IJ for consideration of his application for adjustment of status under 8 U.S.C. § 1255(a). This motion was unopposed by the INS.¹ The BIA granted the motion on December 18, 2001 and remanded the case to the IJ for further proceedings. The remand proved to be fruitless for the INS soon took the position that under 8 C.F.R. § 245.1,² Succar was ineligible to apply for adjustment of status either before the IJ in the removal proceedings or, separately, before the Immigration Service's district director.

At a July 29, 2002 hearing, Succar submitted his adjustment of status application to the IJ. In the middle of the hearing, the IJ stated that based on 8 C.F.R. § 245.1, "I am confident that I don't have the authority to adjust status to someone who's an arriving alien." The IJ denied the adjustment of status application as a matter of law, and then continued, "The Immigration Service doesn't have the authority to adjust his status unless they are willing to terminate this case with me and if that be the case, I'll happily do it but I don't have the authority to terminate...." In his oral decision of the same day, the IJ stated:

The respondent is an arriving alien and, therefore, he is not eligible to adjust status before the Immigration Judge. Additionally the respondent is not eligible to adjust status before the District Director of the Immigration Service in that he is in [removal] proceedings. As I indicated to both counsel, if the Immigration Service wished to have me terminate these proceedings or even to conditionally terminate them, I would have done so in order to afford the Immigration Service an opportunity to see whether an adjustment of status ought to be granted. However, that was not agreed to by the Immigration Service counsel.

The...