Momin v. Gonzales

• Decision Date: 24 April 2006
• Docket Number: No. 05-60119.,05-60119.
• Parties: Amin Memanji MOMIN, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.3d 447

Amin Memanji MOMIN, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-60119.

United States Court of Appeals, Fifth Circuit.

April 24, 2006.

Riddhi Pankaj Desai, Houston, TX, for Petitioner.

James Donald Maxwell, II, Oxford, MS, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, 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 Respondent.

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

Before REAVLEY, CLEMENT and PRADO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this petition for review of an order of the Board of Immigration Appeals ("BIA"), Petitioner contends that his application for adjustment of status was denied pursuant to an invalid regulation. For the reasons that follow, the petition for review is denied.

I. FACTS AND PROCEEDINGS

Petitioner, Amin Memanji Momin ("Momin"), is a native and citizen of India. He first entered the United States in March 1996 as a non-immigrant on a student visa. Momin temporarily left the United States and reentered as a parolee in December 2000 to pursue a family-based visa application filed by his U.S.-citizen wife and his application for adjustment of status; Momin sought lawful permanent resident ("LPR") status. The Immigration and Naturalization Service ("INS") denied Momin's family-based application for a visa and his application for adjustment of status on October 16, 2002.¹ On October 24, 2002, Momin was charged as being removable, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I), because he did not possess a valid entry document.

Before the immigration judge ("IJ"), Momin conceded the charges, i.e., that he was an arriving alien and not in possession of proper immigration documentation. During the hearing, however, Momin indicated that he intended to file an employment-based application in support of his adjustment of status application and asked for a six-week continuance. The IJ granted the continuance. Two days after the hearing, the INS filed a motion to pretermit Momin's application for adjustment of status. In its motion, the INS contended that, under 8 C.F.R. § 1245.1(c)(8),² an arriving alien is ineligible to apply for an adjustment of status. Momin did not oppose the motion and, on May 12, 2003, the IJ ordered that the INS's motion to pretermit Momin's application for adjustment of status be granted.

A month later, Momin filed a motion to reconsider the IJ's order. Momin contended that he was not an arriving alien: According to Momin, he met the exception to the definition of an arriving alien because he "was granted advance parole ... in the United States prior to [his] departure from and return to the United States." 8 C.F.R. § 1.1(q) (defining "arriving alien"). Momin further argued that, under 8 C.F.R. § 245.2(a)(1)(i) and (ii), he should be permitted to renew his application for adjustment of status after substituting his employment-based visa application for his family-based application. Momin's argument focused on the facts that, (1) regardless of the type of visa petition (i.e., family-based or employment-based) used to support the application, the application for adjustment of status remained largely the same, and (2) the regulation permitted the renewal of the "adjustment application," not a particular visa petition.

The INS responded by asserting that an applicant may substitute visa petitions only when the petition has not been adjudicated. Where the application has been considered but denied, the INS argued, the applicant was limited to renewing the application as filed. The INS urged the IJ to consider the employment-based application as a new application.

The IJ agreed with the INS and, on July 10, 2003, issued an order denying the motion to reconsider and directing that Momin be removed. The IJ addressed Momin's argument: "[Momin] seeks to have a second application for adjustment of status, based on an employment-based visa petition, reviewed and approved by the Court in the instant proceedings. However, nothing in the regulations allows an alien to substitute an application with another [visa] petitioner." Based on its determination that Momin was an arriving alien and that the original adjustment of status application had not been renewed, the IJ cited, inter alia, 8 C.F.R. § 245.1(c)(8) for the proposition that Momin was "ineligible for adjustment of status in these removal proceedings."

On July 1, 2004, Momin appealed the IJ's order to the BIA and asserted basically the same application renewal argument. In response, the INS moved for summary affirmance, arguing that the IJ had correctly determined that, under 8 C.F.R. § 245.1(c)(8), Momin was not eligible for an adjustment of status. The BIA agreed with the INS, adopted the IJ's July 10, 2003, order, and dismissed Momin's appeal. In addition, the BIA made the following express findings: (1) Momin was ineligible for adjustment of status under 8 C.F.R. § 245.1(c)(8); (2) Momin was not within the exception to the definition of "arriving alien" for one who has been paroled; and (3) Momin's employee-based application was different from, not a renewal of, his family-based application for adjustment of status and, therefore, he was ineligible to adjust status under 8 C.F.R. § 245.2(a)(1). Momin did not seek judicial review of the BIA's decision.

On December 9, 2004, Momin filed a motion to reconsider the BIA's decision, which the INS opposed. Momin asserted that he was not an arriving alien, based on the definition of that term in 8 C.F.R. § 1.1(q). The INS pointed out that the exception Momin relied on applied only to paroled aliens in expedited removal proceedings under 8 U.S.C. § 1225(b)(1)(A)(i), codifying Immigration and Nationality Act ("INA") § 235(b)(1)(A)(i). Momin was not in an expedited removal proceeding; rather, Momin's removal proceeding was pursuant to 8 U.S.C. § 1229a, codifying INA § 240. Accordingly, the INS continued, Momin was an arriving alien and, as such, ineligible to apply for adjustment of status to LPR. By order dated January 26, 2005, the BIA denied Momin's motion for reconsideration. The BIA held, in accord with 8 C.F.R. § 245.1(c)(8), that Momin was an arriving alien and barred from adjustment of status because of the pending removal proceedings.

On January 24, 2005, two days before the BIA issued its order denying Momin's motion to reconsider, Momin mailed a pleading titled "Supplement to the Respondent's Motion to Reconsider the Board's Decision" to the BIA. In this supplemental motion, Momin urged the BIA to consider the First Circuit's opinion in Succar v. Ashcroft, 394 F.3d 8, 36 (1st Cir.2005), which concluded that 8 C.F.R. § 245.1(c)(8) was inconsistent with 8 U.S.C. § 1255(a) and, therefore, could not be relied on to support a removal order. The INS maintains that it did not receive Momin's supplemental motion in time to consider it and did not include it in the administrative record.³ Momin now petitions this court to review the BIA's denial of his motion for reconsideration.

II. STANDARD OF REVIEW

This court reviews the BIA's denial of a motion for reconsideration for abuse of discretion. Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir.2005). The BIA's "`findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.2005) (quoting 8 U.S.C. § 1252(b)(4)(B) and noting that the provision codified the substantial evidence test established in INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

With respect to pure questions of law, legal conclusions are reviewed de novo. Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir.2004). But, where appropriate under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the BIA's interpretation of an ambiguous provision of the INA is entitled to deference.⁴ Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006). Chevron deference is also appropriate where the BIA interprets its own regulations. Id. (citing Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir.2003)).

III. DISCUSSION

The sole question presented in Momin's petition for review, and the only argument under consideration,⁵ is the argument addressed in his January 24 supplemental motion. Momin contends that 8 C.F.R. § 245.1(c)(8), which deems arriving aliens, who are in removal proceedings, ineligible to apply for adjustment of status to LPR, is invalid. According to Momin, because the regulation conflicts with the underlying statute, 8 U.S.C. § 1255(a), it cannot be used to bar his application for adjustment of status. If Momin's status adjustment application is valid, the argument continues, Momin is not subject to removal. Momin's entire argument turns on the regulation's validity. Before addressing the merits of his claim, we must first consider the INS's position that Momin waived his argument by failing to present it timely to the BIA.

A. Failure to Raise the Argument with the BIA

The INS argues in its brief that the BIA's decision was formed without the benefit of Momin's supplemental argument and that, because he did not timely raise the argument with the BIA, it is waived.⁶ We have addressed the failure of a petitioner to seek relief before the BIA: "When a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the petitioner must raise the issue in a motion to reopen prior to resorting to review by the courts." Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir.2001). Momin contends that there are no "adequate mechanisms to address and remedy" his claim before the BIA because the BIA lacks jurisdiction to consider the validity of regulations promulgated under the INA.

The BIA...