Ortega-Cervantes v. Gonzales
| Decision Date | 04 September 2007 |
| Docket Number | No. 05-70605.,05-70605. |
| Citation | 501 F.3d 1111 |
| Parties | Arturo ORTEGA-CERVANTES, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gloria Martinez-Senftner, Roseville, CA, for the petitioner.
Arthur L. Rabin, Stephen J. Flynn, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-783-189.
Before: MARY M. SCHROEDER, Chief Circuit Judge, STEPHEN S. TROTT and W. FLETCHER, Circuit Judges.
This case requires us to determine whether aliens who are "conditional[ly] parole[d]" pursuant to 8 U.S.C. § 1226(a) are necessarily "paroled into the United States" and thus eligible for adjustment of status pursuant to 8 U.S.C. § 1255(a). We hold that they are not.
Arturo Ortega-Cervantes, a citizen of Mexico, was apprehended on June 8, 2002, together with fourteen other aliens who had been smuggled into the United States. In a Notice to Appear issued and served the following day, the Immigration and Naturalization Service ("INS") charged Ortega-Cervantes with being removable from the United States as an unlawful entrant. See 8 U.S.C. § 1182(a)(6)(A)(i). However, in order to secure his testimony in the criminal prosecution of his smuggler, the INS conditionally released Ortega-Cervantes from INS detention on June 20, 2002.
The terms of Ortega-Cervantes's June 20 release were set out in INS Form I-220A, "Order of Release on Recognizance." The form stated that Ortega-Cervantes had been "arrested and placed in removal proceedings" but was being released "[i]n accordance with section 236 of the Immigration and Nationality Act [8 U.S.C. § 1226] and applicable provisions of Title 8 of the Code of Federal Regulations." Among the conditions imposed on Ortega-Cervantes was a requirement that he report to the INS "[a]t the conclusion of the criminal proceedings in which [he was to be] a witness . . . for further review of [his] case." The INS did not issue Ortega-Cervantes an I-94 card, which is the document typically provided to aliens "parole[d] into the United States" pursuant to 8 U.S.C. § 1182(d)(5)(A).
A few days after his June 20 release, Ortega-Cervantes married a U.S. citizen. He then applied for a visa based on his marriage and sought to adjust his status to that of a lawful permanent resident pursuant to 8 U.S.C. § 1255(a), which applies only to aliens who have been "inspected and admitted or paroled into the United States."
As it turned out, Ortega-Cervantes was never called upon to testify against his smuggler. On August 28, 2002, he reported as required to the INS. He was briefly taken into custody and then released on $5,000 bond "pending a final decision in [his] exclusion/deportation hearing."
On December 20, 2002, Ortega-Cervantes appeared before an immigration judge ("IJ") and conceded removability. He claimed, however, that he was eligible for adjustment of status because, despite not having been "admitted or paroled after inspection on June 8, 2002," "he was subsequently admitted on June 20, 2002 as a federal witness on behalf of the Department of Justice."
In a written decision issued on May 22, 2003, and in an oral decision delivered on June 24, 2003, the IJ concluded that Ortega-Cervantes was not eligible for adjustment of status because he had not been "paroled into the United States" at any point. According to the IJ, "a person given `conditional parole' under [8 U.S.C. § 1226(a)] is not a person who has been `paroled into the United States' under [8 U.S.C. § 1255]."
Ortega-Cervantes appealed to the BIA. He relied in part on a 1999 INS policy memorandum indicating that aliens released pursuant to § 1226(a) may apply for adjustment of status. On January 6, 2005, the BIA issued a single-member decision affirming the IJ. The BIA explained that the policy memorandum did "not have the force and effect of law" and, in any event, that the memorandum did not indicate "that an alien granted conditional parole should be considered `paroled' for the purpose of adjustment of status." Ortega-Cervantes filed a timely petition for review.
Although we lack jurisdiction to review a discretionary denial of adjustment of status, See 8 U.S.C. § 1252(a)(2)(B)(i); Hosseini v. Gonzales, 471 F.3d 953, 956-57 (9th Cir.2006) (as amended), we retain jurisdiction to decide, as a matter of law, whether an alien is statutorily eligible for adjustment of status. See 8 U.S.C. § 1252(a)(2)(D); Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir.2006). It is the legal question of eligibility that is at issue here.
We review the BIA's legal conclusions de novo, "except to the extent that deference is owed to its interpretation of the governing statutes and regulations." Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir.2006). The government contends that the BIA's interpretation of the parole provisions at issue in this case is entitled to Chevron deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We disagree. "[B]ecause the BIA's decision was an unpublished disposition, issued by a single member of the BIA, which does not bind third parties," we employ the less deferential Skidmore standard. Garcia-Quintero, 455 F.3d at 1012, 1014 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also Kharana v. Gonzales, 487 F.3d 1280, 1283 n. 4 (9th Cir.2007); Miranda Alvarado v. Gonzales, 449 F.3d 915, 920-24 (9th Cir. 2006) (as amended). Under Skidmore, the deference we afford to an agency's judgment "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140, 65 S.Ct. 161.
Adjustment of status provides a means for certain aliens present in the United States to become lawful permanent residents. Under 8 U.S.C. § 1255(a), adjustment of status is available only to aliens who were "inspected and admitted or paroled into the United States." That statute provides:
The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
8 U.S.C. § 1255(a). Aliens who "entered the United States without inspection" are not entitled to adjust their status unless they filed either a petition for classification or an application for a labor certification before April 30, 2001, and, if the petition or application was filed after January 14, 1998, they also were "physically present in the United States on December 21, 2000." Id. § 1255(i)(1). Ortega-Cervantes concedes that he was not "admitted" within the meaning of § 1255(a) and does not satisfy the date prerequisites of § 1255(i). He now insists, however, that he is eligible to adjust his status because he was "paroled into the United States" within the meaning of § 1255(a) on June 20, 2002.
Two provisions of the immigration laws authorize the parole of aliens. Only one of those provisions, 8 U.S.C. § 1182(d)(5)(A), specifically refers to "parole into the United States":
The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
8 U.S.C. § 1182(d)(5)(A) (emphasis added); see also 8 C.F.R. § 212.5. It is undisputed that aliens "paroled into the United States" pursuant to § 1182(d)(5)(A) are aliens "paroled into the United States" for purposes of adjustment of status under § 1255(a).
The second parole provision, 8 U.S.C. § 1226(a), provides for the "conditional parole" of aliens who are detained pending a final removal decision:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General —
(1) may continue to detain the arrested alien; and
(2) may release the alien on —
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an "employment authorized" endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
8 U.S.C. § 1226(a) (emphasis added).
Ortega-Cervantes advances two arguments. First, he contends that he was paroled into the United States under the authority of § 1182(d)(5)(A) rather than conditionally paroled under the authority of § 1226(a). If...
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