Ceta v. Mukasey

• Decision Date: 25 July 2008
• Docket Number: No. 07-1863.,07-1863.
• Citation: 535 F.3d 639
• Parties: Pelivan CETA, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

535 F.3d 639

Pelivan CETA, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-1863.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 2008.

Decided July 25, 2008.

Timothy E. Wichmer (argued), Bernhardt & Wichmer, St. Louis, MO, for Petitioner.

Jeffrey L. Menkin (argued), Department of Justice Tax Division, Appellate Section, Ada E. Bosque, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Pelivan Ceta, a citizen of Albania, conceded removability at his most recent hearing with an immigration judge ("IJ"), and he attempted to apply for adjustment of status based on his marriage to an American citizen. Alternatively, Mr. Ceta requested termination of the proceedings without prejudice or a continuance pending the approval of his Petition for Alien Relative ("I-130"). The IJ concluded that Mr. Ceta was categorically ineligible under a then-existing regulation to apply for adjustment of status, and therefore the IJ also denied Mr. Ceta's request for termination or a continuance.

Mr. Ceta then appealed the decision of the IJ to the Board of Immigration Appeals ("Board" or "BIA") and submitted an approved I-130. While Mr. Ceta's appeal was pending, the regulation that categorically had prevented him from eligibility for adjustment of status was repealed. In a brief, per curiam order, the BIA explained that, because of the regulatory change, Mr. Ceta now was eligible to apply for adjustment, but he had to pursue his adjustment application with the United States Citizenship and Immigration Service ("USCIS"). The Board therefore affirmed the IJ's decision that the IJ did not have jurisdiction to consider the adjustment application. The BIA also affirmed the IJ's denial of Mr. Ceta's request for termination or a continuance.

Mr. Ceta now petitions for review of the decision of the BIA denying his application for adjustment of status and his motion for termination of the proceedings or a continuance. For the reasons set forth in this opinion, we grant Mr. Ceta's petition for review.

I BACKGROUND

Mr. Ceta, a citizen of Albania, arrived at Chicago's O'Hare International Airport in 1998 and immediately requested asylum or withholding of removal on the ground that he had been persecuted in Albania for supporting the Democratic Party. The immigration authorities ultimately charged Mr. Ceta as removable on the alternative grounds that he (1) had attempted to gain entry into the United States by fraudulently or willfully misrepresenting a material fact¹; (2) did not have a valid, unexpired immigrant visa²; (3) did not have a valid passport³; and (4) did not have a valid non-immigrant visa.⁴ Mr. Ceta conceded removability under charges (2) and (4) because he did not have a valid visa of any kind; nevertheless, he denied attempting to enter the United States by means of a fraudulent or willful misrepresentation and also denied not being in possession of a valid passport.

After a hearing, an IJ found that Mr. Ceta was not credible and that he was removable on each of the four different grounds, including that he had tried to enter the United States by using a fraudulent passport. The IJ also denied Mr. Ceta's request for asylum. Mr. Ceta appealed. The BIA subsequently concluded that the IJ's adverse credibility determination was not sustainable, but it nonetheless upheld the denial of relief and the finding of a fraudulent or willful misrepresentation.

In his petition for review to this court, Mr. Ceta challenged both determinations. Although we sustained the denial of Mr. Ceta's asylum application, we overturned the determination of removability for attempting to gain entry through fraud or willful misrepresentation. See Ceta v. Ashcroft, No. 03-3066, 117 Fed.Appx. 478 (7th Cir.2004) (unpublished). We remanded the case to the BIA, which, in turn, remanded to the IJ.

On October 27, 2005, Mr. Ceta appeared before the IJ, and he conceded that he was inadmissible. Mr. Ceta then attempted to file for adjustment of status, pursuant to 8 U.S.C. § 1255, based on his marriage to an American citizen. Mr. Ceta recognized that a then-existing regulation, 8 C.F.R. § 1245.1(c)(8) (2004) [the "regulation"],⁵ categorically prohibited him from applying for adjustment of status. This regulation provided that "[a]ny alien who seeks to adjust status based upon a marriage which occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings" was "ineligible to apply for adjustment of status to that of lawful permanent resident under section 245 of the Act." 8 C.F.R. § 1245.1(c)(8). Mr. Ceta argued that this regulation was inconsistent with the Immigration and Nationality Act ("INA" or the "Act"). In support of this argument, Mr. Ceta relied on Succar v. Ashcroft, 394 F.3d 8 (1st Cir.2005), and Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005), which had struck down the regulation as inconsistent with the Act. Alternatively, Mr. Ceta requested that the IJ terminate the proceedings without prejudice or grant him a continuance to give him time to pursue his I-130.⁶ The Department of Homeland Security ("DHS") opposed Mr. Ceta's application on the ground that the regulation, which was valid under Seventh Circuit precedent, categorically denied arriving aliens, such as Mr. Ceta, eligibility for adjustment of status. The DHS further submitted that the IJ did not have jurisdiction to consider arguments about the validity of this regulation.

The IJ determined that the regulation conclusively established that Mr. Ceta was ineligible to apply for adjustment of status. Although Mr. Ceta contended that the regulation was contrary to the Act, the IJ determined that he did not have jurisdiction to consider such an argument. The IJ also denied Mr. Ceta's request for termination without prejudice or a continuance on the ground that Mr. Ceta "was not eligible for adjustment of status before the Immigration Court." A.R. at 44.

Mr. Ceta appealed the IJ's decision to the BIA. While Mr. Ceta's appeal was pending but before he filed his brief with the Board, the Secretary of Homeland Security (the "Secretary") and the Attorney General issued an Interim Rule amending the regulation that had made arriving aliens, such as Mr. Ceta, categorically ineligible for adjustment of status. See Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of Status, 71 Fed.Reg. 27,585 (May 12, 2006) [hereinafter Interim Rule Notice]. The Interim Rule Notice recognized that four courts of appeals had struck down 8 C.F.R. § 1245.1(c)(8) as inconsistent with INA § 245(a), 8 U.S.C. § 1255(a),⁷ and it stated that the Interim Rule was intended to resolve the inter-circuit conflict. The Interim Rule, accordingly, repealed 8 C.F.R. § 1245.1(c)(8) and substituted 8 C.F.R. § 1245.2(a)(1)(ii)⁸ [hereinafter "amended regulation"]. The amended regulation provides that an IJ generally does not have jurisdiction to adjudicate an application for adjustment of status filed by an arriving alien in removal proceedings.⁹ 8 C.F.R. § 1245.2(a)(1)(ii). These aliens, instead, must file their application for adjustment of status with the USCIS, independent of the removal proceedings. 8 C.F.R. § 245(a)(1). The amended regulation is applicable to all cases pending on administrative or judicial review on or after May 12, 2006. Interim Rule Notice, 71 Fed.Reg. at 27,588. The notice also explained that

[w]hile . . . it will ordinarily be appropriate for an immigration judge to exercise his or her discretion favorably to grant a continuance or motion to reopen in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation hearing, the BIA has recognized that this is not an inflexible rule and that an immigration judge has discretion in an appropriate case to deny a continuance even if the alien is the beneficiary of a visa petition or labor certification that, if approved, could render the alien eligible for adjustment of status.

Id. at 27,589 (citing Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA 1978)). The Secretary and Attorney General then explained that their respective agencies were soliciting comments "on the standards for the granting of continuances to arriving aliens in removal proceedings while applications for adjustment of status are pending with USCIS." Id.

In his brief before the Board, Mr. Ceta attached a notice showing that his I-130 had been approved as of January 9, 2002. Relying on the decisions of the courts of appeals that had struck down the former regulation,¹⁰ Mr. Ceta contended that the amended regulation was inconsistent with INA § 245(a), 8 U.S.C. § 1255(a), because, as applied to his case, it achieved precisely the same result as the former regulation; that is, he was prevented from applying for adjustment of status. Mr. Ceta also argued that the IJ erred in failing to terminate the proceedings without prejudice or to grant him a continuance. The DHS, without mentioning the amended regulation, opposed Mr. Ceta's appeal, arguing that the IJ had concluded correctly that Mr. Ceta, as an arriving alien, was ineligible to apply for adjustment of status, and, on that basis, the IJ also had correctly denied his motion for termination or a continuance.

In a brief, per curiam order, the BIA affirmed the IJ's decision in all respects. The Board explained that the amended regulation provided that IJs generally do not have jurisdiction to adjudicate an application for adjustment of status filed by an arriving alien in removal proceedings and that the limited exception to this general rule was inapplicable in Mr. Ceta's case. A.R. at 2 (citing 8 C.F.R. § 1245.2(a)(1)(ii)). The BIA, however, did not...