Akhtar v. Gonzales
| Citation | 450 F.3d 587 |
| Decision Date | 23 May 2006 |
| Docket Number | No. 04-60895.,No. 04-60497.,04-60497.,04-60895. |
| Parties | Raja AKHTAR, Mohammad Salman, Petitioners, v. Alberto R. GONZALES, Attorney General of the United States, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Peter D. Williamson (argued), Williamson & Chaves, Houston, TX, for Akhtar.
Jennifer Paisner (argued), Thomas Ward Hussey, Dir., David V. Bernal, Margaret Kuehne Taylor, U.S. Dept. of Justice, OIL, Joshua E. Braunstein, U.S. Dept. of Justice, Civ. Div. Imm. Lit., Washington, DC, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship & Imm. Services, Houston, TX, for Gonzales.
Sarfraz Aftab Sharif (argued), Sharif & Associates, Houston, TX, for Salman.
Petition for Review of an Order of the Board of Immigration Appeals.
Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.
Raja Akhtar and Mohammad Salman, citizens of Pakistan, are "paroled" "arriving aliens" in removal proceedings. Under a regulation promulgated in 1997, such aliens cannot apply for adjustment of status to become immigrants. Because they mount the same legal challenge to the regulation, a challenge upheld by four of our sister circuits and rejected by one, we consolidated their appeals. We reject the challenge and affirm.
Raja Akhtar, a native and citizen of Pakistan, entered the United States in 1990 through Texas using a fraudulent passport. He has been living in this country ever since, going abroad once, in 1997, pursuant to a fraudulently obtained advance parole. In 2000, Akhtar married his current wife, Aracely Cuellar Chapa, a United States citizen, with whom he has two citizen children.
The INS, now part of the Department of Homeland Security and the U.S. Customs and Immigration Service (USCIS), commenced removal proceedings against Akhtar on December 9, 2000. In response, Akhtar filed an application for cancellation of removal and an application for adjustment of status based on his marriage. He also sent a letter to the INS District Director, asking him to temporarily terminate the removal proceedings because the Immigration Judge lacked jurisdiction to hear the application for adjustment of status while the proceedings continued. The INS asked the IJ to confirm that she lacked such jurisdiction under a regulation forbidding applications from "arriving aliens" in removal proceedings, like Akhtar. The IJ did so. After the District Director refused to terminate removal proceedings, the IJ denied Akhtar's application for cancellation of removal, finding that he failed to establish that removal would cause "exceptional and extremely unusual hardship" to a qualifying family member, and issued a final order of removal. The Board of Immigration Appeals dismissed his appeal without comment.1
On appeal to this court, Akhtar argues: 1) that the regulation precluding applications for adjustment of status from "arriving aliens" in removal proceedings is invalid;2 2) alternatively, since the USCIS District Director has jurisdiction to adjudicate such applications if removal proceedings are conditionally terminated, that we should "initiate" conditional termination; and 3) that the IJ erred in denying Akhtar's application for cancellation of removal.
Mohammed Salman, a native and citizen of Pakistan, entered the United States at San Francisco International Airport on April 25, 2001, using another person's passport and visa. He then attempted to assume that person's identity.
The INS detained Salman and commenced removal proceedings against him on May 9, 2001, releasing him from custody and paroling him into the United States on June 19 after he posted bond. The INS transferred his case to Houston after Salman moved to Texas. On August 20, Salman applied for asylum and admitted that he was removable as charged. On November 11, 2002, Salman married his current wife, Senovia Ramiers, a United States citizen, with whom he has one child, an American citizen by birth.
During removal proceedings, the IJ denied Salman's motion for continuance to allow adjudication of an immigrant visa petition based on his marriage. The BIA affirmed, concluding that the IJ did not abuse her discretion in refusing to continue the proceedings because Salman, as an arriving alien in removal proceedings, was ineligible to adjust status under current regulations,3 rending a continuance pointless. Salman appeals, challenging the validity of that regulation and, hence, the IJ's denial of his motion for continuance.
Before 1960, aliens in the United States without a valid visa had to go abroad to apply for permanent resident (immigrant) status. In 1960, Congress eliminated that burden by expanding eligibility for "adjustment of status" under 8 U.S.C. § 1255(a) to all aliens "inspected and admitted or paroled,"4 allowing people in the country to apply for immigrant status without leaving, even those in the country without a valid visa. "Paroled" aliens are those aliens allowed to enter the country temporarily, without a valid visa, while authorities investigate their eligibility for admission. Under § 1255(a), Respondent may, "in his discretion and under such regulations as he may prescribe," grant such an application. 8 U.S.C. § 1252(a)(2)(B)(i) makes unreviewable his use of that discretion.
Before 1997, aliens were divided into two categories: "applicants for admission," also called "arriving aliens," those aliens who had not yet "entered"5 the country, and aliens present in the U.S. who had already "entered," with or without inspection. Paroled aliens were considered arriving aliens. After inspection, arriving aliens were either admitted or "excluded" during "exclusion proceedings;" aliens who had already entered were either admitted or "deported" during "deportation proceedings."
Pursuant to § 1255(a), parolees could adjust status with the District Director— even if they were in exclusion proceedings. The BIA held that in exclusion proceedings, the District Director, not the IJ, maintained jurisdiction over applications.6
The 1997 Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA)7 eliminated the concept of "entry" to differentiate aliens, replacing it with the concept of admitted versus non-admitted aliens. The main effect is that aliens present in the U.S. who have not been not been inspected or admitted are added to those considered applicants for admission, or arriving aliens. It also replaced exclusion and deportation with "removal," applicable to all aliens in the country without inspection, inspected but not admitted, or previously admitted but now subject to removal.8 The IIRIRA did not change § 1255(a) or otherwise change the adjustment of status process.
In 1997, Attorney General Janet Reno issued new regulations said to implement the IIRIRA. The regulations created a new definition for "arriving alien," a term that had existed without definition in the old statute: 9 This definition is not in controversy, merely codifying the previously understood definition, which under the IIRIRA now encompasses all non-admitted aliens.
The Attorney General made a more substantive change to the adjustment of status regulations, 8 C.F.R. § 245.1(c)(8), rendering seven categories of aliens "ineligible" to apply for adjustment of status under § 1255(a), including "[a]ny arriving alien who is in removal proceedings ...." This regulation dovetails with the new regulation governing adjustment procedure, promulgated at the same time:
An alien [who believes he is eligible for adjustment of status] shall apply to the director having jurisdiction over his or her place of residence .... After an alien, other than an arriving alien, is in deportation or removal proceedings, his or her application ... shall be made and considered only in those proceedings ... An arriving alien, other than an alien in removal proceedings, who believes he or she meets the eligibility requirements... shall apply to the director having jurisdiction over his or her place of arrival. . . . [An alien on advance parole (hence not an arriving alien) whose application was denied by the District Director may renew that application in removal proceedings.]10
Thus, § 245.1(c)(8) prevents arriving aliens, including parolees, in removal proceedings from filing for adjustment of status, either with the District Director, as they had been able to do in exclusion proceedings before 1997, or the IJ.
The parties agree that Akhtar and Salman are parolees in removal proceedings.11 Instead, Akhtar and Salman challenge the validity of § 245.1(c)(8), arguing that in rendering parolees in removal proceedings ineligible to apply, it conflicts with § 1255(a), which makes parolees eligible to apply without mention of removal proceedings.
In promulgating § 245.1(c)(8), the Attorney General explained that she was furthering Congress's intent to expedite removal of arriving aliens by "not favorably exercis[ing]" her unreviewable discretion to adjust status under §§ 1255(a) and 1252(a)(2)(B)(i).12 She explained further that arriving aliens in removal proceedings eligible for immigrant visas would have to return to their home countries to apply, although she might exercise her "prosecutorial discretion" not to initiate removal proceedings or to terminate removal proceedings to allow applicants to apply to the District Director. Respondent Alberto Gonzalez, Reno's successor, maintains this position.
Akhtar and Salman reply that Respondent cannot by regulation redefine eligibility defined by Congress, despite his unreviewable discretion...
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