Samirah v. O'Connell

• Decision Date: 02 July 2003
• Docket Number: No. 03-1786.,03-1786.
• Citation: 335 F.3d 545
• Parties: Sabri I. SAMIRAH, Plaintiff-Appellee, v. Cynthia J. O'CONNELL, Interim District Director for Interior Enforcement, Bureau of Immigration and Customs Enforcement, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

335 F.3d 545

Sabri I. SAMIRAH, Plaintiff-Appellee, v. Cynthia J. O'CONNELL, Interim District Director for Interior Enforcement, Bureau of Immigration and Customs Enforcement, Defendant-Appellant.

No. 03-1786.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2003.

Decided July 2, 2003.

Mark A. Flessner (argued), Altheimer & Gray, Chicago, IL, for Plaintiff-Appellee.

Sheila M. Entenman, Office of the United States Attorney, Chicago, IL, Douglas E. Ginsburg (argued), Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for Defendant-Appellant.

Before FLAUM, Chief Judge, and COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

After the government revoked the advance parole of Sabri Samirah, an alien, the district court ordered advance parole to be reinstated. Because that order exceeded the district court's jurisdiction, we reverse.

I.

Sabri Samirah is a Jordanian citizen who first entered the United States in September 1987 on a student visa. According to the government, however, Samirah did not comply with the terms of his visa. At some point he dropped out of school and out of lawful immigration status for more than two years. Years of legal battles between Samirah and the government ensued. We examine that long legal history only insofar as it is relevant to the narrow issue before us.

In 2002, Samirah, who was still classified as an alien, filed a request for advance parole, stating that he intended to travel abroad for approximately two weeks in May 2003. (Advance parole, as we shall explain in detail later, is basically permission for a resident alien to reenter the United States after departing for some stated purpose.) The Immigration and Naturalization Service (INS)¹ approved this application, pursuant to 8 U.S.C. § 1182(d)(5), in December 2002. Samirah then departed the United States on December 28, 2002, which was about four months earlier than he had represented to the INS. On January 17, 2003, while Samirah was abroad, the District Director of the Chicago INS Office, acting on behalf of the Attorney General, revoked his advance parole because the INS had received information that he was a "security risk to the United States." On January 18, 2003, the INS served this revocation on Samirah at its pre-inspection station in Shannon International Airport, Ireland. It also concluded that, because Samirah had more than one year of unlawful presence in the United States and lacked a valid travel document, he was inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i). With no advance parole and no documents (e.g., a visa) that would allow his entry into the United States, Samirah returned to Jordan. Although it is not clear from the record where Samirah resides at the moment, one thing is certain: he is not in the United States. This is particularly disturbing to Samirah because his children are all citizens of the United States who reside in this country, and his wife is a non-citizen who also resides here.

On February 20, 2003, Samirah's attorney filed an action in the district court seeking, among other things, injunctive relief requiring the government to allow his return to the United States. He asserted jurisdiction under Article I, § 9 of the Constitution and various federal statutes, including 28 U.S.C. § 2241, which provides to federal courts the general power to grant the writ of habeas corpus. The district court issued an injunction requiring the government to allow Samirah's return, reasoning that "the only thing we conclude is that the government cannot short-circuit the rights of an alien who has long lived in the United States by revoking his parole and then treating him as if he had never been here at all." The government appeals, asserting, among other arguments, that the district court lacked jurisdiction.

II.

To understand this case, we first need to examine the function that parole plays in our system of immigration law. The Attorney General² has the discretion to "parole" aliens into the United States. 8 U.S.C. § 1182(d)(5)(A) (2000). Parole allows an alien temporarily to remain in the United States pending a decision on his application for admission. Id. § 1182(d)(5). Although a paroled alien has "liberty to roam the country," the law considers him legally detained at the border within the government's custody until his immigration status is determined. Chavez-Rivas v. Olsen, 207 F.Supp.2d 326, 328 (D.N.J.2002). In some cases (this is one of them), the Attorney General grants advance parole to an alien who is already in the United States but who also wants the assurance that he will be allowed to leave and return. Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 2003 WL 21282457, at *3 (11th Cir. June 5, 2003); 5 Charles Gordon, et al., Immigration Law and Procedure § 62.02[2], at 62-13 (Rev. ed.2003). The Attorney General also has the discretion to revoke advance parole after it has been granted. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(e)(2)(i). After determining that Samirah was a security risk, the Attorney General exercised that discretion and revoked his advance parole.

The district court, however, reversed the decision to revoke parole and candidly determined that a parole revocation could not have the legal effect of destroying whatever rights Samirah had to contest removal. The district court thought it a "judicial responsibility" to require the executive branch to adhere to its obligations. It thus concluded that "the government cannot short-circuit the rights of an alien who has long lived in the United States by revoking his parole and then treating him as if he had never been here at all," (emphasis added) and it then ordered the government to allow Samirah's return.

We must determine whether federal courts have subject matter jurisdiction to review discretionary decisions of the Attorney General, such as the decision to revoke parole. We review de novo the existence of subject matter jurisdiction. Iddir v. INS, 301 F.3d 492, 496 (7th Cir.2002). First, we examine Congress's jurisdictional grant in the non-habeas context. The government cites 8 U.S.C. § 1252(a)(2)(B)(ii) for the proposition that Congress has divested federal courts of such jurisdiction. Section 1252(a)(2)(B)(ii) provides as follows:

(B) Denials of discretionary relief

Notwithstanding any other provision of law, no court shall have jurisdiction to review — ...

(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.

The authority for the Attorney General to grant and revoke parole stems from § 1182(d)(5),³ a provision that is "specified under" the "subchapter" mentioned in § 1252(a)(2)(B)(ii). (Subchapter II of Chapter 12 of Title 8, includes §§ 1151-1378.) The exercise of that authority is, as we mentioned earlier, a matter of the Attorney General's discretion. Hence, argues the government, the plain language of § 1252(a)(2)(B)(ii) precludes jurisdiction. Samirah, apparently relying on the fact that § 1252 is titled "Judicial review of orders of removal," argues that the provision is inapplicable because "there is neither a removal order nor [are there] removal proceedings in this case." Some district courts have taken this position, holding that § 1252(a)(2)(B)(ii) is limited to discretionary decisions made within the context of removal proceedings. See, e.g., Mart v. INS, 94 F.Supp.2d 1120, 1124 (D.Or.2000); Shanti v. Reno, 36 F.Supp.2d 1151, 1159 (D.Minn.1999).

We, however, disagree. "[T]he heading of a section cannot limit the plain meaning of the text." Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). The plain meaning of § 1252(a)(2)(B)(ii)'s text is that "no court shall have jurisdiction to review" any decision of the Attorney General to deny discretionary relief "specified under this subchapter." We therefore join two of our sister circuits and a number of district courts in holding that § "1252(a)(2)(B)(ii) is not limited to discretionary decisions made within the context of removal proceedings." CDI Information Servs. Inc. v. Reno, 278 F.3d 616, 620 (6th Cir.2002); accord Van Dinh v. Reno, 197 F.3d 427, 434 (10th Cir.1999); El-Khader v. Perryman, 264 F.Supp.2d 645, 2003 WL 1790862, at *3 (N.D.Ill. Apr.2, 2003); Systronics Corp. v. INS, 153 F.Supp.2d 7, 11 (D.D.C.2001); Avramenkov v. INS, 99 F.Supp.2d 210, 214 (D.Conn.2000). Because the Attorney General's decision to grant or revoke parole is squarely within the ambit of § 1252(a)(2)(B)(ii), we hold that the district court lacked jurisdiction to review, much less reverse, the revocation of Samirah's parole — at least outside the context of a habeas proceeding.

Samirah alleges habeas jurisdiction under 28 U.S.C. § 2241, and contends that § 1252(a)(2)(B)(ii) does not preclude a court from granting the writ. There is authority for the proposition that, pursuant to INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), § 1252(a)(2)(B)(ii) should not be construed as stripping federal courts of habeas jurisdiction over challenges to the INS's parole determinations. See Sierra v. INS, 258 F.3d 1213, 1217 (10th Cir.2001); Jeanty v. Bulger, 204 F.Supp.2d 1366, 1374 (S.D.Fla. 2002). But see Curri v. Reno, 86 F.Supp.2d 413, 421 (D.N.J.2000) (holding, without the benefit of the Supreme Court's opinion in St. Cyr, that § 1252(a)(2)(B)(ii) repeals habeas jurisdiction). Nevertheless, § 1252(a)(2)(B)(ii)'s effect on habeas jurisdiction is an issue that we need not address today. The district court lacked jurisdiction under § 2241 for at least two reasons, neither of which involves § 1252(a)(2)(B)(ii). The first reason is that Samirah was not in custody when he filed this case. The second is that, even if he could somehow be considered...