422 F.3d 98 (3rd Cir. 2005), 03-3634, Zheng v. Gonzales

Docket Nº:03-3634.
Citation:422 F.3d 98
Party Name:Zheng ZHENG, Petitioner v. Alberto GONZALES, [*] Attorney General of the United States, Respondent.
Case Date:September 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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422 F.3d 98 (3rd Cir. 2005)

Zheng ZHENG, Petitioner

v.

Alberto GONZALES, [*] Attorney General of the United States, Respondent.

No. 03-3634.

United States Court of Appeals, Third Circuit.

Sept. 8, 2005

Argued Feb. 7, 2005.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Joseph C. Hohenstein (Argued), Philadelphia, PA, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Linda S. Wernery, Senior Litigation Counsel, Thankful T. Vanderstar (Argued), Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Ben Franklin Station, Washington, DC, for Respondent.

Mary A. Kenney, Nadine K. Wettstein, American Immigration Law Foundation, Washington, DC, for Amicus Curiae American Immigration Law Foundation.

Before BARRY, FUENTES, and BECKER, Circuit Judges.

OPINION

BECKER, Circuit Judge.

Table of Contents

I. Introduction ......................................................... 102

II. Facts and Procedural History ......................................... 103

A. Background Facts .............................................. 103

B. Zheng's Adjustment Application ................................ 103

C. Removal Proceedings ........................................... 104

D. Appellate Proceedings ......................................... 105

III. The Motion To Reopen Asylum Proceedings .............................. 105

A. The Lozada Requirements ....................................... 106

B. Prejudice ..................................................... 107

IV. Adjustment of Status ................................................. 108

A. The Statutory and Regulatory Framework ........................ 108

1. Statutory Authority To Adjust Status .................. 108

2. The Eligibility Regulation ............................ 109

B. The "Arriving Alien" Category ................................. 110

V. The Validity of the Regulation ....................................... 111

A. The Chevron Analysis .......................................... 112

B. Discretion and the Chevron Analysis ........................... 113

C. Chevron Step One: Eligibility and Discretion .................. 114

D. Chevron Step Two: Congressional Meaning Versus Regulatory Restrictions .................. 116

1. Parole and Removal Proceedings ........................ 116

2. Arriving Aliens and Adjustment of Status .............. 118

3. Is the Regulation a Permissible Interpretation of the Statute? ............................................ 119

VI. Application to Zheng ................................................. 120

A. Zheng's Parole Status and the Effect of the Notice to Appear .. 120

B. Zheng's Adjustment Applications ............................... 121

C. Who Has Jurisdiction Over Zheng's Application? ................ 122

VII. Conclusion ........................................................... 124

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I. Introduction

Zheng Zheng petitions this Court to review a decision by the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. Zheng raises two claims. First, he argues that the BIA should have granted his motion to reopen because of ineffective assistance of counsel. Zheng argues that his previous attorney was ineffective because he failed to file an appellate brief with the BIA after an Immigration Judge (IJ) denied his application for asylum. Because we find that the prejudice requirement of the ineffective assistance claim has not been met, we reject Zheng's argument on this point.

Second, Zheng argues that the BIA should have granted his request to remand his case so that an IJ might consider his petitions for adjustment of status. Zheng presses two applications to adjust status. First, he has an employment-based application. Second, he alleges that he is covered by the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (CSPA), which allows certain Chinese nationals to adjust their status to that of lawful permanent residents. The government responds that Zheng is an "arriving alien" and, as such, forbidden by regulation from adjusting his status under 8 C.F.R. § 1245.1(c)(8). Zheng and the amicus curiae argue that this regulation is inconsistent with the governing statute, and therefore invalid, relying on the First Circuit's recent decision in Succar v. Ashcroft, 394 F.3d 8 (1st Cir.2005).

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While our reasoning differs somewhat from that of the First Circuit, we agree with that court's conclusion that 8 C.F.R. § 1245.1(c)(8) is not a valid exercise of the Attorney General's authority under the Immigration and Nationality Act (INA). We concur with the government that the statute grants the Attorney General broad discretion to issue regulations, and that this discretion may include some power to regulate eligibility to adjust status. But the Attorney General's power is not unlimited, and must be exercised consistently with the intent of the statute. Because the statute allows paroled aliens to apply for adjustment of status, whereas the regulation forecloses this statutory eligibility, the regulation is not based on a permissible statutory reading. We will therefore grant the petition for review and remand to allow the immigration authorities to consider Zheng's applications for adjustment of status.

II. Facts and Procedural History

A. Background Facts

Zheng Zheng was born on May 25, 1960, in Fuzhou, People's Republic of China. He claims that in 1989, when he was a middle school teacher in Fuzhou, he was involved in student uprisings. He apparently disseminated information from the BBC and Voice of America to the teachers and students of his school, passed out pamphlets, and organized rallies. The Chinese government cracked down on the student demonstrators in June 1989. As part of this crackdown, government authorities came looking for Zheng. He hid from security officers for a time, staying with friends and relatives, and eventually left China through Hong Kong and came to the United States. Zheng apparently arrived in California at some point in or after 1990, and entered the country without inspection by immigration officials.

Zheng eventually moved to Woodlyn, Pennsylvania, where he lived until 1993, when he returned to China briefly to visit his sick father. Before leaving for China, Zheng obtained a permission to re-enter (or "advance parole"), dated July 28, 1993, which allowed him to return to the United States under the status that he had when he left. Although Zheng was an uninspected illegal alien, he was not deportable at that time because then-President Bush had instituted a Deferred Enforced Departure (DED) program for certain Chinese nationals in the wake of the Tiananmen Square massacre. See Exec. Order No. 12,711, 55 Fed. Reg. 13897 (Apr. 11, 1990). Zheng was eligible for DED, so his permission to reenter was issued. This allowed him to travel to China and return to the United States without being detained at the border as an illegal alien. He did in fact re-enter the United States on September 27, 1993, using his advance parole authorization. 1

B. Zheng's Adjustment Application

On October 20, 1993, Zheng filed an application to adjust status with the Immigration and Naturalization Service (INS). 2 In this application, he claimed that he was entitled to lawful permanent residence status under the Chinese Student Protection

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Act, because he had arrived in the United States before April 11, 1990, and met the other requirements of the CSPA. He submitted a sworn statement saying that he entered California on February 1, 1990, as well as various materials that tended to show that he was in New York prior to that date. The INS ultimately ruled on the application on May 5, 1999--almost six years after it was filed--finding that Zheng had failed to "present authentic and convincing evidence" to show that he had entered the United States prior to April 1990. It noted that many of the materials Zheng had submitted were proven to be fraudulent, and Zheng admitted as much, saying that he bought one of the documents on the street in Chinatown. The INS therefore denied Zheng's application to adjust his status.

C. Removal Proceedings

That decision left Zheng as an unadmitted illegal alien. On October 29, 1999, the INS began removal proceedings by serving on Zheng a Notice to Appear alleging that he was an "alien present in the United States without being admitted or paroled" under 8 U.S.C. § 1182(a)(6)(A)(i). On January 7, 2000, the INS amended the Notice to Appear, withdrawing the § 1182(a)(6)(A)(i) charge and adding a charge under § 1182(a)(7)(A)(i)(I), which allows deportation of an alien who "is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by [the INA]." The new Notice to Appear also revised the factual allegations against Zheng, alleging that he was, "on September 27, 1993, paroled into the United States pursuant to Executive Order 12711," and that he was removable under the § 1182(a)(7)(A)(i)(I) standard.

Zheng retained an attorney, Sigang Li, who filed an asylum application on his behalf on August 7, 2000. A merits hearing was conducted before an Immigration Judge in Philadelphia on September 17, 2001. Zheng testified during a brief direct examination in which he contradicted his asylum application in several important respects. Most notably, he stated that he was depressed because he had just learned that his father had died on August...

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