Bona v. Gonzales

• Decision Date: 30 September 2005
• Docket Number: No. 03-71596.,No. 03-72488.,03-71596.,03-72488.
• Parties: Delia Ramos BONA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. Delia Ramos Bona, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.3d 663

Delia Ramos BONA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

Delia Ramos Bona, Petitioner, v. Alberto R. Gonzales, Attorney General, Respondent.

No. 03-71596.

No. 03-72488.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2005.

Filed September 30, 2005.

Stuart I. Folinsky, Los Angeles, CA, for the petitioner.

Earle B. Wilson and Jennifer Paisner, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before HUG, FERGUSON, and HAWKINS, Circuit Judges.

HUG, Circuit Judge.

This case involves a woman who is a Philippine citizen whose husband has served for 19 years in the United States Navy and is a naturalized United States citizen. They have three children who are also now naturalized citizens. She arrived in the United States in 1991 with her three children as endangered family members of a serviceman when Mt. Pinatubo erupted in the Philippines. She was placed in removal proceedings eight years later and denied the ability to apply for adjustment of status under an INS regulation because she was paroled into the United States at the time of her arrival in 1991. We hold in agreement with Succar v. Ashcroft, 394 F.3d 8 (1st Cir.2005), that the regulation is in conflict with the governing statute and is thus invalid. Under the statute she is entitled to apply for adjustment in the removal proceedings.

This case started with the best of intentions by our own government, with the evacuation of military personnel and their families from the Philippine islands under threat of an impending volcanic eruption. But the case quickly digressed into a series of unwise and misplaced discretionary decisions which ultimately led to an immigration judge entering a final order of removal against Delia Ramos Bona ("Delia"). Delia appeals the Board of Immigration Appeals's ("Board") decision affirming the final order of removal and the Board's refusal to remand the case. Most importantly, however, Delia also argues that this court should follow the First Circuit's decision in Succar, which held that 8 C.F.R. § 245.1(c)(8), the regulation that precludes arriving aliens from seeking adjustment of status in removal proceedings, is invalid. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) to consider this appeal. We agree with the Succar decision and hold that 8 C.F.R. § 245.1(c)(8) is invalid.¹ Therefore, Delia was improperly precluded from applying for adjustment of status during her removal proceedings. Accordingly, we grant the petition for review and remand the case to the Board of Immigration Appeals for further proceedings.

I.

Delia is a native and citizen of the Philippines. She is married to Rolando G. Bona ("Rolando"), a naturalized United States citizen. The Bonas are the parents of three children who are also naturalized citizens. At the time of oral argument, Rolando had served in the United States Navy for approximately nineteen years.

In 1989, while Delia and the children were living in the Philippines, Rolando filed an immediate relative visa petition on behalf of his wife and children. The petitions were granted the same year.

In August 1991, the United States military evacuated its personnel and their families from the Philippine Islands due to the eruption of Mount Pinatubo. It appears that these military families had no choice but to evacuate at the military's insistence and their transportation was paid for by the government. As a result, Delia and her children were evacuated from the Philippines and she and the children were paroled into the United States on August 21, 1991. In September of that same year, Rolando was naturalized.

Following her husband's naturalization, Delia applied for adjustment of status. However, her adjustment application was denied by the then Immigration and Naturalization Service ("the Service") in October 1991. It appears that the Service denied the adjustment application because it believed that Delia's husband, Rolando, had fraudulently obtained his immigrant visa and subsequent citizenship. According to the Service's hypothesis, Rolando received his immigrant visa (and subsequent citizenship) as the "unmarried son of a United States citizen." However, the Service believed that at the time Rolando applied for and received his visa, he was not "unmarried" because he was in fact married to Delia. Subsequently, the Service revoked Delia's parole authorization.

At the time of the denial, these allegations of fraud had never been adjudicated or proven in any court of law. Nor does it appear that there was any evidence that Delia participated or otherwise was involved in the fraud, if in fact it did occur. At no time has the Service ever attempted to de-naturalize Rolando or revoke the approved visa petition granted to Delia in 1991. In fact, as of this time, the Service could not take steps to de-naturalize Rolando based upon his long service to the United States military. In spite of denying Delia adjustment, the Service did grant the Bona children permanent resident status based upon Rolando's citizenship. The children have since been naturalized.²

To compound matters, the Service waited more than eight years to initiate removal proceedings against Delia. Delia's August 1999 Notice to Appear alleged that Delia: 1) was an arriving alien, 2) was not a citizen or national of the United States, 3) had been admitted to the country as a parolee, and 4) had obtained admission into the United States by fraud. Thus, the Service charged her as removable under 8 U.S.C. § 1227(a)(1)(A) as an inadmissible alien.

The following month, the Service amended the charging document. The amendment included an additional charge of inadmissibility under 8 U.S.C. § 1182(a)(7), alleging Delia was an immigrant not in possession of a valid entry document at the time of her application for admission.

The Immigration Judge ("IJ") conducted a hearing on both charges of inadmissibility and rendered his decision in February 2000. Initially, the IJ determined that the first charge failed as a matter of law because as a parolee Delia was not subject to the deportability provisions of section 1227.

Next, the IJ turned to the second charge of removability under section 1182. Delia admitted the basic elements of the charge, most notably that she was an arriving alien. Based upon her status as an arriving alien, the IJ made clear that he could not consider Delia's application for an adjustment of status.³ Recognizing that there were no other "remedies" available to Delia, he gave the parties three options: 1) the parties could agree to an administrative closure of the case, which would require the government's consent, 2) Delia could withdraw her application for admission and agree to return to the Philippines in order to pursue her application for admission from her native country, or 3) the matter could proceed. Both the government and Delia agreed to proceed. As a result, the IJ found clear and convincing evidence that Delia was removable. Additionally, he refused to consider Delia's application for adjustment because she was ineligible for such relief as an arriving alien. 8 C.F.R. § 245.1(c)(8). Thus, Delia was ordered removed to the Philippines.

Delia appealed the decision to the Board of Immigration Appeals arguing that she was not an "arriving alien" and should have been allowed to adjust her status in her removal proceedings. The Board, in a per curiam decision, rejected this argument without comment and dismissed the appeal. On a motion to reconsider, the Board again rejected this argument because Delia admitted at her removal hearing that she was an "arriving alien."

On appeal, she renews her argument that she was not an "arriving alien" within the meaning of the Immigration and Naturalization Act. Alternatively, she argues that even if she is "an arriving alien" she should not have been precluded from applying for adjustment of status in her removal proceedings. She urges this court to adopt the rationale of Succar v. Ashcroft, 394 F.3d 8 (1st Cir.2005), and hold that the regulation promulgated by the Attorney General, 8 C.F.R. § 245.1(c)(8), which precludes "arriving aliens" from applying for adjustment of status in removal proceedings, is invalid because it is in direct conflict with 8 U.S.C. § 1255(a).⁴

II.

The precise issue raised by this appeal is whether a paroled alien, who is also deemed an arriving alien under 8 C.F.R. § 1.1(q), is properly precluded from applying for adjustment of status in removal proceedings. This is a novel issue, not yet addressed by this circuit. To answer this question, we must first determine whether Delia is in fact an "arriving alien" within section 1.1(q). If she is, we must then turn to the question of whether 8 C.F.R. § 245.1(c)(8), which precludes arriving aliens (including paroled aliens by definition) from applying for adjustment of status, is invalid because it is clearly contrary to the statute defining the categories of aliens who are eligible to apply for adjustment of status without restriction. 8 U.S.C. § 1255(a).

First, Delia argues that she is not an "arriving alien" within the meaning of 8 C.F.R. § 1.1(q). She bases this argument on the fact that she was paroled into the United States before April 1, 1997, and thus she claims to be specifically exempted from the definition of "arriving alien" under section 1.1(q).

The section states, in relevant part:

An arriving alien remains such even if paroled pursuant to section 212(d)(5) [8 U.S.C. § 1182(d)(5)] of the Act, except that an alien who was paroled before April 1, 1997, or an alien who was granted advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, shall not be considered an arriving alien for purposes of section 235(b)(1)(A)(i) [8...