Brito v. Mukasey

• Decision Date: 26 March 2008
• Docket Number: Docket No. 06-3974-ag.
• Citation: 521 F.3d 160
• Parties: Ramon BRITO, Petitioner, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

521 F.3d 160

Ramon BRITO, Petitioner, v. Michael B. MUKASEY, Attorney General,^* Respondent.

Docket No. 06-3974-ag.

United States Court of Appeals, Second Circuit.

Argued: June 21, 2007.

Decided: March 26, 2008.

Lila Sljivar, Wilens & Baker, P.C., New York, NY, for Petitioner.

Jesse M. Bless, Office of Immigration Litigation (Peter D. Keisler, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, on the brief), U.S. Department of Justice, Washington, D.C., for Respondent.

Before: MINER, SACK, and HALL, Circuit Judges.

HALL, Circuit Judge:

Petitioner Ramon Brito asks this Court to review the July 31, 2006 decision of the Board of Immigration Appeals ("BIA") affirming in part and modifying in part the April 27, 2005 decision of Immigration Judge ("IJ") Noel Brennan denying Brito's application for adjustment of status. In re Ramon Brito, No. A75 800 038 (B.I.A. July 31, 2006), aff'g No. A75 800 038 (Immig. Ct. N.Y. City Apr. 27, 2005). Brito argues: (1) because he returned to the United States pursuant to a grant of advance parole, he erroneously was designated an "arriving alien"; (2) the IJ has jurisdiction over his application for adjustment of status because it is a renewed version of the application he filed prior to his departure from the United States — upon which his grant of advance parole was based; and (3) the regulations withholding from the IJ jurisdiction to adjudicate his application for adjustment of status are ultra vires. We conclude: (1) Brito failed to exhaust before the agency the issue of his designation as an arriving alien and thus we do not reach it; (2) because Brito's present application for adjustment of status is new and separate from his previously filed application the IJ lacks jurisdiction to adjudicate it; and (3) Brito lacks standing to assert his argument that the applicable regulations are ultra vires. Accordingly, we deny the petition for review.

I. Background

Petitioner Ramon Brito is a native and citizen of the Dominican Republic. Brito entered the United States without inspection in March 1996. One month later, Brito married his first wife, Mildred Brito (formerly Mildred Melendez). Approximately one year after his marriage, Brito filed an I-485 application to adjust his status to that of a person admitted for lawful permanent residence; his wife simultaneously filed an I-130 immigrant visa petition on Brito's behalf. While his I-485 application was pending, Brito requested, and received, "advance parole"¹ permission to visit his ailing mother in the Dominican Republic and then return to the United States. The Immigration and Naturalization Service ("INS")² granted Brito advance parole and warned him that in the event his application for adjustment of status was denied, he would be subject to removal proceedings. In December 1997, pursuant to his advance parole status, Brito departed the United States. He returned approximately one month later, and on January 16, 1998, Brito applied for admission to enter the United States. He was paroled in until January 15, 1999. On March 29, 2000, due to Mildred Brito's failure to report to a scheduled interview, the INS denied her I-130 petition. At the same time, the INS denied Brito's I-485 application and terminated his parole status.

On May 25, 2000, the INS served Brito with a notice to appear to show cause why he should not be removed from the United States. The INS charged that Brito was an "arriving alien" removable from the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant who at the time of admission was not in possession of a valid entry document. Brito denied he was an arriving alien and denied being removable as charged.

On March 5, 2003, through counsel, Brito notified the Immigration Court of the following matters: he had divorced his wife; he had remarried another United States citizen, .Judy Brito (formerly Judy Almonte); his new wife had filed on Brito's behalf a second I-130 petition; and Brito had filed a second I-485 application. Brito asserted that he was improperly designated an arriving alien because he had been granted advance parole to leave and return to the United States.³

On April 27, 2005, the IJ determined that Brito was an arriving alien and removable as charged. Specifically, the IJ determined that an alien like Brito who seeks entry into the United States pursuant to a grant of advance parole is an arriving alien. The IJ pointed to 8 C.F.R. § 1.1(q) which provided that "[a]n arriving alien remains such even if paroled pursuant to [8 U.S.C. § 1182(d)(5)]."⁴ The IJ also determined that Brito is not eligible to adjust his status in immigration court.

Brito appealed to the BIA arguing that the IJ has jurisdiction over his application. Brito, however, did not challenge in his brief to the BIA the IJ's determination that Brito was an arriving alien. In its per curiam decision of July 31, 2006, the BIA affirmed the IJ's determination that Brito was an arriving alien. The BIA also affirmed the IJ's determination that Brito cannot pursue adjustment of status in immigration court but it did so for different reasons than those cited by the IJ. The BIA explained that while Brito's appeal was pending before it, the Attorney General had enacted interim regulations clarifying that, subject to one narrow exception, Us lack jurisdiction to adjudicate applications for adjustment of status. That exception, explained the BIA, applies only where the alien has been placed in removal proceedings after having departed and returned to the United States pursuant to a grant of advance parole and seeks to adjudicate an application for adjustment he filed prior to his departure. The BIA noted that Brito had filed his second I-485 application — the one at issue — after he returned to the United States and was placed in removal proceedings and that nothing in the regulations permits an alien to substitute a newly filed application for an old one. The BIA held that the IJ lacks jurisdiction to adjudicate Brito's application but noted that Brito can pursue his application for adjustment with the Bureau of United States Citizenship and Immigration Services ("USCIS"). Brito now petitions this Court for a review of the BIA's decision.

II. Discussion

Brito argues that both the IJ and BIA erred in designating him an arriving alien, that the IJ has jurisdiction to adjudicate his application for adjustment of status even under immigration regulations as amended, and that the IJ has jurisdiction to adjudicate his application because the regulations prohibiting the adjudication of applications for adjustment of status by IJs are ultra vires. Because the BIA's decision affirms in part and modifies in part the decision of the IJ, we review the decision of the IJ as modified by the BIA. See Dong Goo v. BIA, 482 F.3d 122, 125 (2d Cir.2007).

A. Brito's Designation as an Arriving Alien

"A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right...." 8 U.S.C. § 1252(d)(1). In Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 & n. 1 (2d Cir.2007), we clarified that while not jurisdictional, issue exhaustion is mandatory. Indeed, in order to preserve an issue for review by this Court, the petitioner must not only raise it before the BIA, but do so with specificity. Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir.2007) (citing Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004)). Here, as the government asserts, Brito not only failed to contest before the BIA his designation as an arriving alien, but also conceded that designation both in his statements of reasons for appealing the decision of the IJ, see Attachment to Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, No. A75 800 038 (B.I.A. May 23, 2005) ("Mr. Brito can adjust his status even though he is an arriving alien...."), and in his brief on appeal to the BIA, see Respondent's Brief on Appeal at 5 (B.I.A. May 26, 2006) (discussing whether Brito satisfies a regulation that would allow the IJ jurisdiction to adjudicate an arriving alien's application for adjustment of status). Thus, he has failed to preserve for review by this Court the issue of whether his designation as an arriving alien was erroneous.⁵

B. The IJ's Jurisdiction Under the Regulations

i. Statutory Background

Because the regulations governing the IJ's jurisdiction over applications for adjustment of status, prior to their recent amendment, have been the subject of a considerable amount of litigation concerning their validity, we provide some history.

Prior to 1960, any alien in the United States no longer in possession of a valid immigrant visa but eligible for adjustment of status had to go abroad to apply for permanent resident status. See Akhtar v. Gonzales, 450 F.3d 587, 590 (5th Cir.2006); Succar v. Ashcroft, 394 F.3d 8, 13 (1st Cir.2005). In 1960, Congress eliminated that burden by expanding eligibility for adjustment of status to include all aliens "inspected and admitted or paroled," allowing aliens in the United States, with or without valid visas, to apply for immigrant status without having to depart. 8 U.S.C. § 1255(a); Akhtar, 450 F.3d at 590; Succar, 394 F.3d at 14. Section 1255(a) commits to the discretion of the United States Attorney General, "and under such regulations as he may prescribe," the granting of applications for adjustment of status. 8 U.S.C. § 1255(a). In addition, 8 U.S.C. § 1252(a)(2)(B)(i) makes unreviewable the Attorney General's exercise of that discretion. Akhtar, 450 F.3d at 590; see also Succar, 394 F.3d at 19 n. 15.

In 1997, following the enactment of the Illegal Immigrant Reform and Immigration Responsibility Act ("IIRIRA"), the Attorney General issued new regulations to implement IIRIRA. In addition to providing the above-mentioned definition of "arriving alien," see 8 C.F.R. § 1.1(q), the Attorney General promulg...