Scheerer v. U.S. Atty. Gen., No. 06-14192.

Decision Date15 January 2008
Docket NumberNo. 06-14192.,No. 06-15971.
PartiesGermar SCHEERER, Petitioner, v. U.S. ATTORNEY GENERAL, Michael Chertoff, Secretary of DHS, in his official capacity, Respondent. Germar Scheerer, a.k.a. Germar Rudolf, Petitioner, v. U.S. Attorney General, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Russell J.E. Verby, David V. Bernal, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Mary A. Kenney, Am. Imm. Law Found., Washington, DC, for Amicus Curiae.

Petitions for Review of Decisions of the Board of Immigration Appeals.

Before TJOFLAT, HULL and WILSON, Circuit Judges.

WILSON, Circuit Judge:

In his second appearance before us in this matter, Germar Scheerer petitions for review of the Board of Immigration Appeals' (BIA) decision denying his motion to reopen removal proceedings and its decision denying his motion to reconsider. Scheerer, who has been removed from the United States, seeks reopening of proceedings so that he may return to this country to apply for an adjustment of status. The BIA denied Scheerer's motions on the grounds that, under an amendment to the governing regulation, Scheerer is prohibited from pursuing adjustment of status in removal proceedings and may do so only by filing an application with the United States Citizenship and Immigration Services (USCIS). Scheerer challenges the amended regulation, arguing that it, like the regulation we declared invalid in our prior decision, bars virtually all paroled aliens from applying for adjustment of status, and thus is contrary to the intent of § 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a). Scheerer and the amicus curiae also challenge the application of the regulation to this case and argue that the BIA abused its discretion in denying Scheerer's motions. For the reasons discussed below, we deny the petitions.

I. BACKGROUND

A native and citizen of Germany, Scheerer fled that country in 1995 following his conviction for inciting racial hatred in violation of German law. See Scheerer v. United States Att'y Gen. (Scheerer I), 445 F.3d 1311, 1314 (11th Cir.2006). He entered the United States as a conditional parolee on August 9, 2000,1 and subsequently filed an application for asylum and withholding of removal. The Immigration Judge (IJ) denied Scheerer's claims and entered a finding that his application was frivolous. The BIA affirmed the IJ's decision without opinion, and Scheerer timely petitioned this Court for review.

While his petition was pending, Scheerer filed a motion with the BIA to reopen removal proceedings so that he could adjust his status to that of a lawful permanent resident based on his marriage to a United States citizen. The BIA denied his motion, finding that, as an arriving alien in removal proceedings,2 Scheerer was ineligible under 8 C.F.R. § 1245.1(c)(8) to apply for an adjustment of status. Scheerer timely filed a petition for review, which we consolidated with his earlier petition. In November 2005, this Court and the Supreme Court denied Scheerer's emergency motions to stay removal pending appeal, and he was removed from the United States to Germany.

Upon our first review, we granted Scheerer's petitions in part and denied in part. We affirmed the denial of his claim for asylum and withholding of removal, but held that the IJ's findings were insufficient to support the conclusion that Scheerer's application was frivolous. Scheerer I, 445 F.3d at 1317, 1318. Additionally, we held that 8 C.F.R. § 1245.1(e)(8) was an invalid regulation. Id. at 1322. Noting that 8 U.S.C. § 1255(a) authorizes the Attorney General to adjust the status of any alien "who was inspected and admitted or paroled into the United States," we determined that Congress intended to allow most paroled aliens to apply for an adjustment of status. Id. We further concluded, based on related statutory provisions, that Congress intended for virtually all parolees to be placed in removal proceedings. Id. at 1321. The regulation, however, barred "[a]ny arriving alien ... in removal proceedings" from seeking adjustment of status, 8 C.F.R. § 1245.1(c)(8) (2005), thereby rendering nearly all parolees ineligible. In light of this conflict, we held that the regulation was not based on a permissible construction of the statute. Scheerer I, 445 F.3d at 1322. We therefore reversed the denial of Scheerer's motion to reopen and remanded the case to the BIA. Id.

Following our decision, the Department of Homeland Security (DHS) agreed to seek the issuance of a transportation letter that would allow Scheerer to reenter the United States to pursue his adjustment application on remand. However, in response to our Scheerer I ruling and to similar decisions by other circuit courts,3 the Attorney General promulgated an interim regulation repealing 8 C.F.R. § 1245.1(c)(8) and replacing it with an amended 8 C.F.R. § 1245.2(a)(1). 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, 27,591-92 (May 12, 2006). The amended regulation, unlike the former 8 C.F.R. § 1245.1(c)(8), permits arriving aliens in removal proceedings to apply for adjustment of status. In most circumstances, however, it deprives the IJ of jurisdiction to adjudicate such applications.4 Instead, arriving aliens in removal proceedings must file adjustment applications with USCIS, a component of DHS. See 8 C.F.R. § 245.2(a)(1). The interim regulation provides that the amended 8 C.F.R. § 1245.2(a)(1) is applicable to all cases pending administrative or judicial review on or after May 12, 2006. 71 Fed.Reg. at 27,588.

On remand, the BIA relied on the interim regulation to deny Scheerer's motion to reopen. In a decision dated July 26, 2006, the BIA found that Scheerer does not fall within the narrow exception under which arriving aliens may apply for adjustment of status in removal proceedings before an IJ. Therefore, the BIA concluded, Scheerer must pursue any application for adjustment of status with USCIS. Scheerer filed a timely petition for review with this Court. Thereafter, he filed a motion to reconsider with the BIA, arguing, inter alia, that the BIA's decision frustrated the intent of our remand order because, as an alien previously removed, he is barred from reentering the United States,5 and therefore is unable to pursue an adjustment application with USCIS. See 8 U.S.C. § 1255(a) (providing that aliens "inspected and admitted or paroled into the United States" are eligible for adjustment of status); 8 C.F.R. § 245.1(a) (limiting eligibility to apply for adjustment of status to aliens "physically present in the United States"). The BIA denied Scheerer's motion on November 2, 2006, finding that the new interim regulation is applicable to Scheerer's case and is binding on the BIA, and that our decision involved another regulation (see 8 C.F.R. § 1245.1(c)(8) (2005)). The BIA also found that it has no authority to order DHS to allow Scheerer to reenter the United States for purposes of his seeking adjustment of status. Scheerer timely petitioned for review of the BIA's decision, and we consolidated his two petitions into the present appeal.

Scheerer raises three issues for our review. First, he argues that the amended 8 C.F.R. § 1245.2(a)(1) effects the same result as that produced, by the former regulation, and thus is invalid for the reasons set forth in Scheerer Second, Scheerer argues that the BIA violated due process and our Scheerer I remand instructions by applying the regulation to this case. Finally', Scheerer argues that the BIA's denial of his motions constitutes an abuse of discretion.

II. DISCUSSION
A. Validity of Amended 8 C.F.R. § 1245.2(a)(1)

The amended 8 C.F.R. § 1245.2(a)(1) provides that, in general, "[i]n the case of an arriving alien who is placed in removal proceedings, the immigration judge does not have jurisdiction to adjudicate any application for adjustment of status ..." Scheerer contends that this regulation is substantively identical to the former 8 C.F.R. § 1245.2(c)(8) in that it bars virtually all paroled aliens from pursuing adjustment applications. Accordingly, he argues, the amended regulation is invalid because, like its predecessor, it is contrary to the intent of 8 U.S.C. § 1255(a). See Scheerer 1, 445 F.3d at 1322.

The validity of the amended 8 C.F.R. § 1245.2(a)(1) is an issue of first impression in the courts of appeals. In reviewing an agency regulation interpreting a statute the agency administers, we apply the two-step inquiry outlined by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). See Scheerer I, 445 F.3d at 1318. First, we must consider "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781. However, "if the statute is silent or ambiguous with respect to the specific issue," we turn to the second step, which requires us to decide whether the regulation is "based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. To uphold the agency's interpretation under this inquiry, we "need not conclude that the agency construction was the only one it permissibly could have adopted . . . or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n. 11, 104 S.Ct. at 2782 n. 11. we must decide" is whether the agency "has filled the statutory gap `in a way that is reasonable in light of the legislature...

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