In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1889
S ABRI I. S AMIRAH,
Plaintiff-Appellee,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1298—James B. Moran, Judge.
A RGUED S EPTEMBER 8, 2010—D ECIDED D ECEMBER 3, 2010
Before P OSNER, M ANION, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. In the more than seven years
that have elapsed since our first decision in this
seemingly interminable immigration case, Samirah v.
O’Connell, 335 F.3d 545 (7th Cir. 2003), the issues pre-
sented to us have changed, requiring us to conduct a
fresh analysis. The government insists that our first
decision, reversing the grant of a preliminary injunction
2 No. 08-1889
to the plaintiff, is dispositive of the present appeal. That
isn’t true. The issues are different. The central issue in
the first appeal—the reviewability of revocation of “ad-
vance parole”—has dropped out, and the relief sought
in the present appeal (mandamus) is different from
that sought unsuccessfully in the prior one (habeas cor-
pus). We’ll see that an immigration regulation entitled
the plaintiff, upon the revocation of his advance parole,
to the restoration of his pre-parole status, that of an
applicant to adjust his status from nonlawful resident to
lawful resident. But to pursue his application, he had, by
law, to be physically present in the United States. The
government, in violation of the regulation, refused to
let him return to the United States. He is entitled to a
writ of mandamus directing the Attorney General to
enable him to return. That is the case in a nutshell,
but the complexity of immigration law will require an
unavoidably tedious elaboration of our analysis. The
issues presented by this appeal have not been briefed
and argued as carefully as we would like, perhaps be-
cause of that complexity; but we think we can see our
way clear to a sound result.
The plaintiff, a citizen of Jordan, first came to the
United States 23 years ago on a student visa. Although
the visa expired at some point, he remained in the
United States. He didn’t become a lawful resident, but
he obtained a Ph.D., married, had three children, was
continuously employed, and had never been placed in
deportation (now called removal) proceedings. Twice he
applied to adjust his status to that of a lawful resident
and both times he was turned down, the first time
No. 08-1889 3
because he had accepted employment without the immi-
gration service’s authorization and the second time be-
cause a religious-worker visa obtained on his behalf by
the American Middle Eastern League was determined to
be invalid. In the course of the second rejection the im-
migration service cited two media reports which sug-
gested that the plaintiff was affiliated with political
groups that either supported Hamas or endorsed its
views. The government has not repeated these shadowy
accusations in the present proceeding, and the plaintiff
has never been placed in removal proceedings.
In 2002, the year after the denial of his second applica-
tion for adjustment of status, the plaintiff learned that
his mother, who lives in Jordan, was ill. He hadn’t seen
her for years and wanted to visit her. But he also wanted
to preserve the opportunity to adjust his status, so he
filed a third application and at the same time asked
the immigration authorities for what is called “advance
parole.” Advance parole authorizes an applicant for
adjustment of status to travel outside the United States
without prejudice to his application, and to return—even
though he isn’t a lawful resident and doesn’t have a
visa—to prosecute it. 8 C.F.R. § 212.5(f); Brito v. Mukasey,
521 F.3d 160, 162 n. 1 (2d Cir. 2008). The regulation that
authorizes parole (and does not distinguish between
advance parole, which lets an alien leave the country
without jeopardizing his immigration status, and parole
granted to an alien outside the country to allow him
to enter without his thereby obtaining the status of a
lawfully admitted alien) also provides that “upon accom-
plishment of the purpose for which parole was auth-
4 No. 08-1889
orized or when in the opinion of one of [designated]
officials . . . neither humanitarian reasons nor public
benefit warrants the continued presence of the alien in
the United States, parole shall be terminated upon
written notice to the alien and he or she shall be restored
to the status that he or she had at the time of parole.”
8 C.F.R. § 212.5(e)(2)(i). The meaning of “restored to the
status that he or she had at the time of parole” is the
central issue presented by the appeal.
In December 2002 the immigration service granted
the plaintiff advance parole (it didn’t have to, but it did),
and having done so sent him a travel document (Form I-
512L) authorizing “a transportation line to accept the
named bearer on board for travel to the United States
without liability . . . for bringing an alien who does not
have a visa.” The form, which thus is a substitute for a
visa, goes on to explain that its purpose is to enable
the bearer to return to the United States “to await the
adjudication of his application for adjustment of status.”
An application for adjustment of status cannot be filed
by someone who is not in the United States, 8 U.S.C.
§ 1255(i); 8 C.F.R. § 245.1(a), and the application is deemed
abandoned if the applicant leaves the country with-
out having been granted advance parole. 8 C.F.R.
§§ 245.2(a)(4)(ii)(A)-(B).
Nevertheless, when, his visit completed, the plaintiff
tried to return to the United States, the immigration
service informed him that his advance parole had
been revoked, and it refused to let him enter the
country despite the fact that he was carrying his unex-
No. 08-1889 5
pired Form I-512L. Although the form does say that the
bearer may be denied reentry to the United States if he
is “inadmissible,” 8 U.S.C. § 1182, the plaintiff has
never been determined to be inadmissible.
The government argues that the revocation of his ad-
vance parole made him inadmissible because it left him
without an entry document, as required by 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) for admission to the United States.
The government is wrong. Form I-512L is a travel docu-
ment, a substitute for a visa (it says so), the purpose
of which is to tell immigration officers that the bearer
is entitled to enter the United States. The government
argues that the alien needs a fresh grant of parole, after
his advance parole terminates, to be readmitted. To
require the alien to obtain a fresh grant of parole would
contradict both the regulation and the form—the form
because it is the equivalent of a visa, and the regulation
because it requires that the bearer’s status as of when
advance parole was granted be restored when the
parole ends. That status includes being present in the
United States. One of the statutory qualifications for an
adjustment of status that is applicable to the class of
aliens to which the plaintiff belongs is, as we said, that
the alien be in the United States. The status the plaintiff
enjoyed before he received advance parole, and hence
the status he reacquired by virtue of the regulation
upon the termination of his advance parole, was that of
an alien eligible for an adjustment of status and there-
fore, among other things, physically present in the
United States. Restoration of his status thus requires his
return to this country. So if the revocation of advance
6 No. 08-1889
parole canceled the plaintiff’s Form I-512L travel docu-
ment, the government was required—subject to excep-
tions discussed later in this opinion—to issue him
another one, or admit him without documentation, in
order to honor the promise in the parole regulation to
restore an alien whose parole is canceled to his prior status.
It is true that Palmer v. INS, 4 F.3d 482, 484 (7th Cir.
1993), says that “an alien seeking to adjust his status to
that of a lawful permanent resident is assimilated to the
position of an applicant for entry into the United States.”
But that was said in a case in which the alien was in
the United States and so could pursue his application
for adjustment of status. When the applicant is outside
the United States, the restoration of his status as an ap-
plicant for adjustment of entry requires that he be
allowed to return to this country. Of course, so far as
entitlement to such an adjustment is concerned, the
applicant has no greater rights than that of an applicant
who is already in the United States.
Had the plaintiff, instead of trying to fly back to the
United States, flown to Canada or Mexico and then smug-
gled himself into this country without being detected
and apprehended, he would have been subject to
removal like any other nonlawful resident. But that would
not have prevented him from pressing his application
for adjustment of status. The status sought is that of
lawful resident; the seeker by definition is not a lawful
resident. Not being a lawful resident of the United States,
the plaintiff was subject to removal before he left the
country on advance parole. Yet no such proceeding had
No. 08-1889 7
ever been brought against him, or, so far as we know,
had ever been contemplated. By whatever means or
route he got back to the United States, even if it was in a
coffin in the cargo hold of an airliner, disguised as Count
Dracula (cf. Love at First Bite), he could have continued
to seek to adjust his status to that of a lawful resident,
until and unless he was removed.
And likewise if the plaintiff had flown directly to the
United States from Jordan. But his flight happened to
make a stop at Ireland’s Shannon Airport. Congress
has authorized the establishment of U.S. immigration
checkpoints at foreign airports in order to prevent unau-
thorized persons from flying into the United States,
8 U.S.C. § 1225a; 8 C.F.R. § 235.5; A. James Vazquez-Azpiri
& Daniel C. Horne, “The Doorkeeper of Homeland Secu-
rity: Proposals for the Visa Waiver Program,” 16 Stan. L. &
Policy Rev. 513, 545-47 (2005), and one of these checkpoints
is at Shannon. (There was no checkpoint at Jordan’s
international airport when the plaintiff flew to Shannon.)
Upon entering the Shannon checkpoint the plaintiff was
handed a letter from a U.S. immigration official in
Chicago informing him that his advance parole had
been revoked because he was a “security risk” and he
would not be permitted to enter the United States. He
flew back to Jordan and has not returned to the United
States since; we assume that either before or after being
turned away at Shannon he was placed on the U.S. “no
fly” list and is thus unable to fly to the United States
from any airport. The government has made clear its
unwillingness to issue him a visa or other entry document,
contends that he has no legal remedy against permanent
8 No. 08-1889
exclusion from the United States, and deems his applica-
tion for adjustment of status abandoned because he is
outside the country.
Revocation of parole, because it is an exercise of discre-
tionary authority by the immigration authorities, 8 U.S.C.
§ 1182(d)(5)(A), is not judicially reviewable, as we held
in our first decision. Samirah v. O’Connell, supra, 335 F.3d
at 548-49; see 8 U.S.C. § 1252(a)(2)(B)(ii); Kucana v. Holder,
130 S. Ct. 827, 836-37 (2010). What we have now to
decide is the consequence of revocation. That was not
an issue in the previous appeal. The plaintiff had raised
it in the district court, but it was not discussed or
resolved in our opinion, and so in the further pro-
ceedings that followed our reversal of the grant of a
preliminary injunction the district court assumed not
unreasonably that the issue remained for resolution.
Recall that the parole regulation (8 C.F.R. § 212.5(c))
states that upon revocation of parole the alien is restored
to his status before he was paroled. It’s true that it also
says that parole shall be revoked “upon accomplishment
of the purpose for which parole was authorized or when
in the opinion of one of [designated] officials . . . neither
humanitarian reasons nor public benefit warrants the
continued presence of the alien in the United States.” But
to read this to mean that when parole is revoked the
alien is excluded would make the regulation incoherent,
because the alien’s pre-existing status as an applicant
for an adjustment of status, which termination of parole
restores, includes presence in the United States. The
meaning rather is that someone whose parole is revoked
No. 08-1889 9
has no right to remain in the United States, as he is not
a lawful resident and is subject therefore to removal,
but that if he had applied for an adjustment of status
when he was here he can return to the United States so
that he can pursue his application. What happens to him
after he returns—whether for example he is placed in
removal proceedings, and perhaps removed before his
application for adjustment of status is acted on—is not
determined by his having been restored to his status as
a seeker of an adjustment of status. This interpretation is
confirmed by Form I-512L, which tells immigration
officers to readmit the bearer of the form even though
he has no visa.
The government’s lawyer told us at argument that
being present in the United States and seeking an ad-
justment of status do not constitute a “status” within the
meaning of the regulation. We don’t agree, as we ex-
plained earlier in distinguishing this case from Palmer.
The statute governing adjustment of status sets forth in
detail who may seek to adjust his status to that of an
alien lawfully admitted for permanent residence. It
defines, in other words, the status seeker’s status.
Circumstances might, despite the regulation, justify
the government in refusing to allow the return of
someone whose advance parole had been revoked; for
remember that Form I-512L warns the bearer that he
won’t be readmitted if he’s “inadmissible.” See, e.g., In re
G-A-C-, 22 I. & N. Dec. 83, 88-89 (BIA 1998) (en banc).
The only ground of inadmissibility mentioned in the
Form I-512 that was given to the plaintiff—8 U.S.C.
10 No. 08-1889
§ 1182(a)(9)(B)(i)—appears (as implied by the section’s
caption) to affect only aliens who have previously been
removed from the United States, and the plaintiff
hadn’t been; in any event the government has not
argued that he was inadmissible under that section.
The statute governing admissibility also authorizes the
exclusion of aliens who are believed to endanger
national security, 8 U.S.C. § 1182(a)(3), and we shall
assume that this provision applies to returning parolees
even though it’s not mentioned in Form I-512L. Yet
even though the letter from the immigration official in
Chicago said that the plaintiff was being barred from
returning to the United States because he was a “security
risk,” the government does not invoke section 1182(a)(3)
in its appeal and we can’t determine from the record
whether the plaintiff is a security risk in a relevant sense.
The government will not disclose the basis of its
supposal that he is one or even the criteria that the im-
migration official who declared the plaintiff a security
risk used in making that determination. And as far as
we know there was no internal review in the Justice
Department or the Department of Homeland Security
of the determination; it was made by DHS and we
don’t even know whether the Justice Department, while
representing DHS in this litigation, agrees with it.
Moreover, except in the case of an “arriving alien”—and
for purposes of removal an alien granted advance parole
is not deemed to be one upon his return to the United
States, see 8 C.F.R. § 1.1(q)—inadmissibility must be
determined by an immigration judge, rather than by an
No. 08-1889 11
immigration officer at a checkpoint or port of entry.
8 U.S.C. § 1229a(a). Of course the plaintiff has not re-
turned to the United States, but the point is only that,
should he return, he could not be denied admission
without a determination by an immigration judge that
he was inadmissible. This point is important for two
reasons: an immigration judge is a judicial officer; and
the fact that no immigration judge was involved in the
decision to exclude plaintiff from the United States
shows that the ground for excluding him was not that
he was inadmissible.
Although the plaintiff—a highly educated, steadily
employed, long-time resident in the United States,
whose children are U.S. citizens—would ordinarily be
considered a good candidate to be allowed to adjust his
status to that of a lawful permanent resident, Elkins v.
Moreno, 435 U.S. 647, 667-68 (1978); Patel v. INS, 738
F.2d 239, 242-43 (7th Cir. 1984); In re Hashmi, 24 I. & N.
Dec. 785, 793 (BIA 2009); U.S.C.I.S. Adjudicator’s Field
Manual, § 23.2(d) (updated through Oct. 6, 2010), the
denial of his two previous applications, and the possible
(though only, as far as we know, a rumored) link to
Hamas, suggests not. But if not—if indeed he’s a threat
to the security of the United States—he can be subjected
to removal or perhaps even to criminal proceedings
upon his return to this country and can be detained until
those proceedings are completed. Advance parole en-
titled him to return to the United States for the sole pur-
pose of pressing his application for adjustment of status; it
gave him no greater rights than if he’d never left. Barney
v. Rogers, 83 F.3d 318, 321 (9th Cir. 1996); see also Assa’ad
12 No. 08-1889
v. U.S. Attorney General, 332 F.3d 1321, 1326-27 (11th Cir.
2003). Maybe he can be declared inadmissible; but that
hasn’t been done, as we said. By refusing to grant him
a visa, the government is arbitrarily preventing him
from exercising the right granted to him by the advance-
parole regulation.
Don’t be fooled by the word “parole.” In normal usage
it means you’re tentatively free but if you violate the
conditions of your freedom you’ll be sent back to prison.
When “advance parole” in the immigration setting is
revoked, your status is restored and you’re just sent
back to the United States, which we prefer to think of as
the land of liberty rather than as a prison. Advance
parole is the right to leave the United States without (in
a case such as this) abandoning your right to seek ad-
justment of status upon your return. Revocation of
advance parole terminates your “liberty” to be footloose
abroad and requires you to rush back here to preserve
your application.
The government makes the startling argument that
“advance parole” is not “parole.” If it is not parole, what
is it? If Form I-512L is not a travel document entitling
an alien granted advance parole to return to the United
States (unless he is “inadmissible,” which the plaintiff
was not), what is it? The parole regulation describes
advance parole as “parole,” 8 C.F.R. § 212.5(f), and the
only statutory authority for granting advance parole is
found in the statutory provision that authorizes the
grant of parole. 8 U.S.C. § 1182(d)(5)(A). If advance
parole isn’t parole, the parole regulation doesn’t mean
No. 08-1889 13
what it says and the Attorney General has no authority
to grant advance parole. Advance parole was held in
Succar v. Ashcroft, 394 F.3d 8, 15 n. 7 (1st Cir. 2005), to be
one of several types of immigration parole.
The government’s argument is based rather des-
perately on a footnote in a request for comment on a
proposed rule. Eligibility of Arriving Aliens in Removal
Proceedings, 71 Fed. Reg. 27,585-01, 27,586 n. 1 (May 12,
2006). The footnote states that “ ‘advance parole’ is the
determination of an appropriate DHS officer that DHS
should agree to the exercise of the parole authority
under Section 212(d)(5)(A) of the Act before the alien’s
actual arrival at a port-of-entry. The actual decision to
parole, however, is made at the port-of-entry. Since any
grant of parole may be revoked, 8 C.F.R. § 212.5(e),
a decision authorizing advance parole does not
preclude denying parole when the alien actually arrives
at a port-of-entry.” A request for comments is not a
regulation; the request to which the footnote was ap-
pended was only peripherally concerned with parole
(the aim of the proposed rule was to resolve a circuit
split over whether an immigrant placed in removal pro-
ceedings could apply for adjustment of status); and the
footnote is inconsistent with the parole regulation,
which states that “when parole is authorized for an alien
who will travel to the United States without a visa, the
alien shall be issued Form I-512,” 8 C.F.R. § 212.5(f)—the
advance-parole travel document.
To support its contention that advance parole is not
parole but some other animal in the immigration
14 No. 08-1889
bestiary, the government cites Barney v. Rogers, supra, and
In re G-A-C-, supra. If the government were correct, these
cases would be inconsistent with the First Circuit’s deci-
sion in Succar, which is explicit that advance parole is a
form of parole. But the government is misreading them.
Barney v. Rogers says that advance parole gives an alien
a “right to return for the purpose of completing her
Adjustment Application”—precisely what the plaintiff
is seeking. 83 F.3d at 321. And in like vein the Board of
Immigration Appeals, in In re G-A-C-, supra, described
advance parole as “a mechanism by which a district
director can, as a humanitarian measure, advise an
alien who is in this country, but who knows or fears that
he will be inadmissible if he leaves and tries to return,
that he can leave with assurance that he will be paroled
back into the United States upon return, under prescribed
conditions, if he cannot establish that he is admissible
at that time” (emphasis added). 22 I. & N. Dec. at 88. The
Board went on to say that “the term ‘advance parole’ is
something of a misnomer”—that really it means “advance
authorization of parole”: “the alien is advised in advance
of a departure that, if he meets certain conditions, he
will be paroled into the United States when he returns.” Id.
at 88 n. 3. The plaintiff in this case met those conditions,
which are set forth in Form I-512L. Another case,
Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir. 2007),
similarly describes advance parole as “a practice whereby
the government decides in advance of an alien’s arrival
that the alien will be paroled into the United States when
he arrives at a port-of-entry”—again the right that the
plaintiff in this case is claiming.
No. 08-1889 15
So whether “advance parole” is “parole” turns out to be
a quibble. If it is not a form of “parole,” it is a promise of
parole—that is, a promise of permission to reenter the
United States so that the parolee can press his applica-
tion for adjustment of status.
Moreover, it is important in interpreting judicial opin-
ions, as in interpreting other documents, to read words
in context. Each of the cases on which the govern-
ment relies involved an alien who had been granted
advance parole, had left the country, and had been read-
mitted pursuant to a new grant of parole. Later the
alien’s status became an issue and was held to be his
status when paroled into the country, not when allowed
to leave under a grant of advance parole. All that the
cases stand for, in short, is that when an alien who had
been granted advance parole is paroled back into the
country, that second grant supersedes the grant of ad-
vance parole so far as determining the alien’s status “at
the time he was paroled” is concerned.
Neither case addresses the consequence of a revocation
of advance parole while the alien is out of the coun-
try. They thus do not bear on the right of an alien like the
plaintiff to be restored to his status at the time of the only
parole that he had ever been granted—advance parole.
Curiously, the parole statute says that after revocation
of advance parole “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 ad-
mission to the United States.” 8 U.S.C. § 1182(d)(5)(A).
16 No. 08-1889
Being an applicant for admission to the United States is
a different status from being an applicant for adjustment
of status, the status the plaintiff enjoyed when he left
the United States on parole. And he was never in cus-
tody. Probably all that the quoted language means is that
an alien derives no superior status, by virtue of having
obtained advance parole, when parole is revoked. That
certainly is true, but the plaintiff is not seeking a better
status than he had before it was granted.
So: the “restoration of status” regulation is unambig-
uous; our interpretation of it as entitling the parolee,
upon revocation of his advance parole, to return to the
United States to press his application for adjustment of
status is confirmed by Form I-512L; the government does
not suggest that the regulation (its own regulation)
is invalid; and the government has violated the regula-
tion to the plaintiff’s detriment. What next?
Nothing next, says the government; for, whatever the
apparent merits of this appeal, our decision turning
down the previous appeal terminated the entire litiga-
tion once and for all in sweeping language: “Section
1252(a)(2)(B)(ii) bars jurisdiction over the rest of
Samirah’s action.” 335 F.3d at 552. But section
1252(a)(2)(B)(ii) is just the section that makes the grant,
denial, and—of especial significance in this case—revoca-
tion of parole nonreviewable. That is a given in this case.
The question is what happens after revocation—has
the plaintiff a right to return to the United States to
press his application for adjustment of status? Section
1252(a)(2)(B)(ii) does not answer that question and it was
not a question addressed in our previous decision.
No. 08-1889 17
And what is “the rest of Samirah’s action” that we said
in our first opinion was barred? The only “action” before
us in the first appeal was the plaintiff’s quest for an
injunction against the revocation of his advance parole,
a quest that he based on a claim to be entitled to
habeas corpus relief. We held that he had no right to
obtain habeas corpus relief. 335 F.3d at 549-52. That
ruling was right then and is right now. Wales v. Whitney,
114 U.S. 564, 571 (1885); Terrado v. Moyer, 820 F.2d 920, 921-
22 (7th Cir. 1987) (per curiam); Patel v. U.S. Attorney Gen-
eral, 334 F.3d 1259, 1263 (11th Cir. 2003). Habeas corpus
is a remedy for people in custody; exclusion from the
United States is not custody. We didn’t address the
remedies that the plaintiff might have, after his chal-
lenge to the revocation of his advance parole failed, for
a violation of the regulation specifying the consequences
of revocation. We could not have meant to extinguish a
possible remedy by way of mandamus, because to do
so would have overruled (without circulation of the
opinion to the full court in advance of publication, as
required by 7th Cir. R. 40(e)) our decision in Iddir v. INS,
301 F.3d 492 (7th Cir. 2002), which had held that
section 1252(a)(2)(B)(ii) does not bar an alien from
seeking mandamus.
Nor is it true that our previous decision, by reversing
the district court without stating that the case was being
remanded, ended the litigation, foreclosing the further
proceedings in the district court that led to the grant
of relief that the government is now contesting. The
prior appeal, because it was from the grant of a prelimi-
nary injunction, was interlocutory. It invoked our appel-
18 No. 08-1889
late jurisdiction under 28 U.S.C. § 1292(a), not § 1291
(final orders). There was no occasion for a remand; the
case remained pending in the district court during
and after the appeal. We have reversed the grant of
preliminary injunctions in the past without using the word
“remand,” and the district court has proceeded to the
merits after the reversal. See, e.g., Thomas & Betts Corp. v.
Panduit Corp., 65 F.3d 654, 664 (7th Cir. 1995); on remand,
1995 WL 904908 (N.D. Ill. 1995).
And what if we did word our decision so loosely as to
enable an interpretation that has us having resolved
issues not before us and extinguished rights (specifically
the right to return to the United States after revocation
of advance parole) and remedies (specifically, mandamus)
that were not yet ripe for decision because the litiga-
tion had not yet proceeded far enough? Is the plaintiff to
be punished because we were imprecise?
The plaintiff, his action to restore his advance parole
having failed, wants only to be allowed to return to
the United States to pursue his application for adjust-
ment of status. That is a right that the regulation unambig-
uously confers on him, and the unequivocal violation of
a statute or regulation imposing a duty on a federal
official can be rectified by mandamus—an order “to
compel an officer or employee of the United States or
any agency thereof to perform a duty owed to the plain-
tiff.” 28 U.S.C. § 1361; see Iddir v. INS, supra, 301 F.3d at
499-500; Rios v. Ziglar, 398 F.3d 1201, 1206-07 (10th Cir.
2005); cf. Davis Associates, Inc. v. Secretary of Housing &
Urban Development, 498 F.2d 385, 389 n. 5 (1st Cir. 1974);
No. 08-1889 19
United States ex rel. Schonbrun v. Commanding Officer,
Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968).
Neither in its briefs nor at oral argument has the gov-
ernment been able to give any reason—some ground
for bending the language of its own regulation to
avoid absurd or otherwise untoward consequences—why
the plaintiff should not be allowed to return to the
United States to pursue his application for adjustment
of status. He did nothing wrong by going to visit his
sick mother in Jordan—the government said he could do
so and return. If he is a threat to U.S. security, he can be
returned under guard and kept under guard until the
application is disposed of or removal or criminal pro-
ceedings brought to successful completion against
him. The government has not suggested that he is too
dangerous to be allowed on an airplane—in fact it
has not suggested that he is dangerous at all. One can be
a “security risk” without creating a risk of committing
a violent act.
No one has told us what kind of “security risk” the
plaintiff is. The government points to no facts or
reasoning that might support the immigration service’s
refusal to allow him to return to the United States. No
evidence is mentioned that might connect him to
Hamas. There is just the cryptic statement by the gov-
ernment’s lawyer at oral argument—a statement redolent
of guilt by association—-that maybe the plaintiff “needs
better friends” (what he really needed was a better
travel agent, who wouldn’t have routed him through
Shannon). The government is going for broke: it wants
20 No. 08-1889
an opinion from us that will affirm its right to disregard
its own regulation and exclude an alien on the basis of a
groundless suspicion or, for that matter, no suspicion.
The government’s insistence that a grant of advance
parole creates no right of reentry to the United States (or
if it does create such a right, no remedy for its violation)
comes close to nullifying advance parole; for what appli-
cant for adjustment of status (and thus not yet a lawful
resident) would take a chance on leaving the country if
he can be denied reentry on an immigration officer’s
whim? The Attorney General can abolish advance
parole if he wants, but he cannot be permitted to make
it a trap—a device for luring a nonlawful resident out
of the United States so that he can be permanently ex-
cluded from this country without any of the procedural
protections that he would enjoy if, remaining in the
United States, he could be removed only in a removal
proceeding.
The government argues finally that the refusal of a
consular official to issue a visa to an alien cannot be
reviewed by the courts; and it adds (incorrectly, as
we’ll see) that without a visa the plaintiff, being an alien,
won’t be allowed back into the United States even if he
waves an order of mandamus in the face of a consular
official; so the plaintiff is checkmated even if his rights
have been violated. The government also points out that
the plaintiff has not applied for a visa—of course not;
he knows it would be denied.
The doctrine of “consular nonreviewability,” on which
the government’s argument is based and which in
No. 08-1889 21
the United States at least has a tarnished pedigree, having
been first recognized by the Supreme Court in cases
that authorized the expulsion of hapless Chinese
laborers, see Fong Yue Ting v. United States, 149 U.S. 698,
707, 713-14 (1893); Chae Chan Ping v. United States (the
Chinese Exclusion Case), 130 U.S. 581, 609 (1889); Donald S.
Dobkin, “Challenging the Doctrine of Consular Nonre-
viewability in Immigration Cases,” 24 Georgetown Im-
migration L.J. 113, 116-22 (2010), tells courts not to
second guess the immigration authorities’ refusal to
issue a visa to a foreigner. United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543-44 (1950); Kleindienst v.
Mandel, 408 U.S. 753, 765-67 (1972); Saavedra Bruno v.
Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999); Burrafato
v. U.S. Dept. of State, 523 F.2d 554, 556 (2d Cir. 1975). But
like most general legal principles it is qualified. As ex-
plained in United States ex rel. Knauff v. Shaughnessy, supra,
338 U.S. at 543, “it is not within the province of any
court, unless expressly authorized by law, to review the
determination of the political branch of the Govern-
ment to exclude a given alien” (emphasis added).
So there’s a presumption against judicial review of
denials of visas to foreigners, but not a conclusive one. See,
e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir.
2008); Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988); see
also Kleindienst v. Mandel, supra, 408 U.S. at 770. Its normal
operation is illustrated by Kiyemba v. Obama, 555 F.3d 1022,
1026 (D.C. Cir. 2009), vacated, 130 S. Ct. 1235, reinstated in
amended form, 605 F.3d 1046 (D.C. Cir. 2010). No law
authorized the plaintiffs in that case to enter the United
22 No. 08-1889
States. Our plaintiff, in contrast, has a right to be “restored
to the status that he had at the time of parole,” 8 C.F.R.
§ 212.5(e), which includes, as we keep saying, physical
presence in this country.
Several cases apply the exception recognized in Knauff
to aliens entitled to mandamus because they have a clear
right to be in the United States. Singh v. Clinton, 618
F.3d 1085, 1088 (9th Cir. 2010); Patel v. Reno, 134 F.3d 929,
931-32 (9th Cir. 1997); Mulligan v. Schultz, 848 F.2d 655,
657 (5th Cir. 1988). (We said in Ahmed v. Dep’t of Homeland
Security, 328 F.3d 383, 388 (7th Cir. 2003), that we
might agree with these cases if the issue arose. See also
Iddir v. INS, supra, 301 F.3d at 499-500.) The plaintiff in
this case, as in the cases cited, is unlike the typical alien,
who has no right to a visa. This alien has a right, conferred
by a regulation the validity of which is conceded all
around, to be in this country.
Visas are issued by the State Department, however, and
it is not a party to this case. It could be made a party, but
that is unnecessary. The plaintiff doesn’t need a visa. The
Attorney General is authorized by the parole statute to
parole him into the United States, 8 U.S.C. § 1182(d)(5)(A),
and by regulation to grant parole “to an alien who
will travel to the United States without a visa.” 8
C.F.R. § 212.5(f). The fact that the plaintiff’s advance
parole was revoked doesn’t preclude a fresh grant of
parole to let him back in—an action not only consistent
with the statute but (since his original travel document,
the Form I-512L, has expired) required to place the gov-
ernment in compliance with the parole regula-
No. 08-1889 23
tion—required unless an alternative route is opened to
the plaintiff. Or an immigration officer can, either at a port
of entry or at a pre-inspection station, 8 C.F.R. § 235.5,
admit an alien upon determining that he is “clearly and
beyond a doubt entitled to be admitted” to the United
States. 8 U.S.C. § 1225(b)(2)(A); see Clark v. Martinez, 543
U.S. 371, 373 (2005). This subsection applies to any alien
who is not an “arriving alien,” and as we noted earlier
an alien granted advance parole is not an arriving alien.
We do not retract our earlier statement, based on our
previous decision, that the immigration statute makes
the grant of advance parole discretionary, 8 U.S.C.
§ 1182(d)(5)(A), and its revocation likewise when it says
that “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.” Id.; see Samirah v. O’Connell, supra, 335
F.3d at 548-49; Hassan v. Chertoff, 593 F.3d 785, 789-90
(9th Cir. 2010); cf. Webster v. Doe, 486 U.S. 592, 600 (1988).
But it isn’t true that if we can order the Attorney
General to grant parole, the decision whether to grant
or deny or revoke parole is no longer in his discretion.
He has limited his discretion by promulgating the reg-
ulation that requires that upon termination of advance
parole the parolee be restored to his pre-parole status,
and there is no suggestion that the Attorney General
cannot limit his own discretion in this way—it would
actually curtail his discretionary authority if he could
not limit his discretion.
24 No. 08-1889
Just as a state may give its people more legally enforce-
able rights than a statute or a constitutional provision
requires, e.g., DeTomaso v. McGinnis, 970 F.2d 211, 212
(7th Cir. 1992), so may a federal agency, by a regulation
within its authority to issue, grant persons subject to its
authority more legally enforceable rights than a statute
or the Constitution gives them. E.g., United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 265-68 (1954) (“regula-
tions with the force and effect of law supplement the
bare bones of” a statute (footnotes omitted)); Leslie v.
Attorney General of United States, 611 F.3d 171, 178-80
(3d Cir. 2010); Fisher v. United States 402 F.3d 1167, 1177
(Fed. Cir. 2005); Johnson Oyster Co. v. Baldridge, 704 F.2d
1060, 1062-63 (9th Cir. 1983). “[R]ules promulgated by a
federal agency, which regulate the rights and interests
of others, are controlling upon the agency. The doctrine
was first announced in an immigration case in United
States ex rel. Accardi v. Shaughnessy, where the Court
vacated a deportation order of the Board of Immigration
Appeals because the procedure leading to the order
did not conform to the relevant regulations. The failure
of the Board and of the Department of Justice to follow
their own established procedures was held to be
reversible error.” Montilla v. INS, 926 F.2d 162, 166-67 (2d
Cir. 1991) (citation omitted). As succinctly summarized
by Professor Merrill, “even if the applicable statutes
confer complete discretion on agency actors, if those
actors have the authority to constrain their discretion by
promulgating legislative rules, and they choose to do so,
they have created law that can serve as the basis for
judicial review.” Thomas W. Merrill, “The Accardi Princi-
ple,” 74 Geo. Wash. L. Rev. 569, 605 (2006).
No. 08-1889 25
In holding that the plaintiff is entitled to mandamus,
we do not take a single step back from our previous
decision. We held first that the Attorney General has
unreviewable authority to revoke advance parole, and
second that the plaintiff, not being in custody and not
being in the United States or in Guantánamo Bay,
Boumediene v. Bush, 128 S. Ct. 2229, 2258-62 (2008), cannot
obtain habeas corpus relief. 335 F.3d at 548-52. Our
opinion did not address the plaintiff’s alternative claim
to relief under the mandamus statute, though it had not
been forfeited, having been preserved both in the
district court and, on appeal, in this court.
Although we thus agree with the district judge that the
plaintiff is entitled to relief, we don’t agree with the form
of relief that he ordered after our first decision. He ordered
the government to allow the plaintiff to return to the
United States, and to give him a removal hearing, or hold
the hearing abroad if that’s possible. But the government
has never tried to remove the plaintiff, may never try, and
for all we know would fare badly if it did try—and in any
event a removal proceeding might be enjoined until the
plaintiff’s application for adjustment of status was re-
solved. Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2010);
Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004); cf.
Benslimane v. Gonzales, 430 F.3d 828, 831-33 (7th Cir. 2005);
but see Ahmed v. Gonzales, 447 F.3d 433, 437-39 (5th Cir.
2006). And a removal proceeding might end favorably
to the plaintiff despite the allegation that he is a “security
risk,” an allegation that for all we know may evaporate
upon even the most superficial inquiry into its basis. In
a removal proceeding he would be entitled to examine
26 No. 08-1889
and try to rebut any adverse evidence unless it was
classified. 8 C.F.R. § 103.2(b)(16); Ogbolumani v.
Napolitano, 557 F.3d 729, 735 (7th Cir. 2009). And if it
was classified, he ordinarily would “be given notice of the
general nature of the information and an opportunity to
offer opposing evidence.” 8 C.F.R. § 103.2(b)(16)(iv).
But unless and until the government tries to remove
the plaintiff, the courts cannot order a removal hearing.
We remand the case to the district court for the issuance
of a mandamus commanding the Attorney General to take
whatever steps are necessary to enable the plaintiff to
reenter the United States for the limited purpose of reac-
quiring the status, with respect to his application for
adjustment of status, that he enjoyed when he left the
United States pursuant to the grant of advance parole
later revoked. An order couched in terms of “take what-
ever steps are necessary” may seem vague. But the Attor-
ney General has as we have indicated several means of
compliance and we can let him decide which to employ
to enable the plaintiff to return.
Lest the scope of our decision be exaggerated, we
emphasize that the relief we are ordering will not “ad-
mit” the plaintiff to the United States in the sense of
upgrading his status from that of a nonlawful resident of
this country; it will merely enable him to pursue his
application for an adjustment of status as long as he is
permitted to remain in the country. And we intimate
no view on whether he is entitled to such an adjustment.
He very well may not be. But he has a right, conferred on
him by the same agency of government that denies it, to
No. 08-1889 27
more consideration than he has received. The Attorney
General can grant advance parole or deny it, as he
wishes; he can revoke it at will; he can eliminate
advance parole altogether, or change the rules governing
it. But having made the rules, whatever they are, he
must, until he changes them, play by them.
A FFIRMED IN P ART, M ODIFIED ,
AND R EMANDED .
M ANION, Circuit Judge, dissenting. Today the court
remands this case “to the district court for the issuance
of a mandamus commanding the Attorney General to
take whatever steps are necessary to enable the plaintiff
to reenter the United States . . . .” Opinion at 26. This
directive mirrors the relief the district court granted
Samirah more than seven years ago: “Defendants must
issue, or arrange for the issuance of, any and all docu-
ments necessary to permit Sabri Samirah to enter the
United States on or before March 28, 2003.” In Samirah v.
O’Connell, 335 F.3d 545 (7th Cir. 2003) (“Samirah I”), this
court interpreted the district court’s directive as an
order reinstating Samirah’s advance parole. And because
the ordering of the reinstatement of advance parole is
beyond this court’s jurisdiction, Samirah I concluded
that “[s]ection 1252(a)(2)(B)(ii) bars jurisdiction over the
28 No. 08-1889
rest of Samirah’s action.” Samirah, 335 F.3d at 552 (em-
phasis added). “The rest of Samirah’s action” means
exactly that—the rest of Samirah’s action—which is why
Samirah I “reversed” the district court’s decision, but
did not remand the case to the district court for further
proceedings. Id. at 552. Because Samirah I resolved this
case in its entirety, I respectfully dissent.
Samirah himself recognized that Samirah I barred all of
his claims, stating as much in his petition for rehearing
en banc filed with this court and his petition for
certiorari to the Supreme Court. This court denied
Samirah’s petition for rehearing. And the Supreme Court
denied Samirah certiorari. See Samirah v. Ashcroft, 541
U.S. 1085 (2004). Once this court and the Supreme Court
denied Samirah’s petitions for review, Samirah I became
final. 1
Nonetheless, the court today concludes that Samirah I is
not dispositive because “the issues presented to us have
changed,” opinion at 1, and “the relief sought in the
present appeal (mandamus) is different from that sought
unsuccessfully in the prior one (habeas corpus).” Opinion
at 2. But not only is the relief sought the same, see supra at
27 (and Samirah did seek relief through both habeas
corpus and mandamus in Samirah I), “[t]he issues pre-
sented to us” also have not changed. In both Samirah I and
1
The fact that Samirah I was on appeal from the grant of a
preliminary injunction has no bearing on the finality of this
court’s holding that the district court lacked jurisdiction “over
the rest of Samirah’s action.” Samirah, 335 F.3d at 552.
No. 08-1889 29
in this appeal, Samirah argued the same statutory and
constitutional theories for relief, claiming jurisdiction
then, as well as now, based on, among other grounds, the
mandamus statute. The only issue that is new is the one
the court has presented based on 8 C.F.R. § 212.5(e)(i).
Samirah did not rely on § 212.5(e)(i) in Samirah I—he did
not even cite that regulation in his appellate brief. And
because he does not rely on that regulation in this current
appeal,2 the government has not had an opportunity
to address the issues presented in the court’s holding.
There is a good reason not to rely on § 212.5(e)(i)—that
section does not apply to Samirah’s situation. Section
212.5(e)(i) states that “parole shall be terminated upon
written notice to the alien and he or she shall be restored
to the status that he or she had at the time of parole.”
8 C.F.R. § 212.5(e)(2)(i). But Samirah was never granted
parole in the first place so obviously it could not be termi-
nated. Samirah received advance parole and advance
parole is not the same as parole.
The Board of Immigration Appeals (“BIA”) explained
this distinction in its en banc decision in Matter of G-A-C-, 22
I. & N. Dec. 83, 88 n.3 (BIA 1998) (en banc): “The term
‘advance parole’ is something of a misnomer, and this
phrasing may cause some confusion. An alien in the
United States can request an advance authorization of
2
In fact, Samirah’s only citation to § 212.5(e)(i) in his current
appeal comes at page 10 of his appellee brief, where he sum-
marizes the government’s position that advance parole is not
parole—a position with which he agreed at oral argument.
30 No. 08-1889
parole. If the request is approved, the alien is not at that
point ‘paroled.’ ” The BIA then stated that “[t]his is a
distinction of some significance,” id., citing Barney v.
Rogers, 83 F.3d 318 (9th Cir. 1996). In Barney, the Ninth
Circuit explained that “[a]lthough Petitioner received
advance parole—a promise of parole upon her re-
turn—while she was an illegal overstay, she was not
‘paroled’ until she returned to the United States from
Nigeria.” Id. at 321. Thus, the court explained, “ ‘at the
time of parole,’ as distinguished from the time of advance
parole, the petitioner was an excludable alien like all
aliens who seek admission to the United States at desig-
nated ports of entry.” Id. The Barney court then con-
cluded: “In other words, the advance parole gave Peti-
tioner the right to return for the purpose of completing
her Adjustment Application; it did not ‘freeze’ her
status as an illegal overstay.” Id. (In this case, though,
Samirah’s advance parole was revoked, so there was
no right to return.) Similarly, the Second Circuit has
distinguished advance parole from parole, stating: “ ‘Ad-
vance parole’ is the determination of an appropriate
DHS officer that DHS should agree to the exercise of the
parole authority under Section 212(d)(5)(A) of the Act
before the alien’s actual arrival at a port-of-entry. The
actual decision to parole, however, is made at the port-of-
entry.” See Ibragimov v. Gonzales, 476 F.3d 125, 136 n.15 (2d
Cir. 2007) (quoting Eligibility of Arriving Aliens in Re-
moval Proceedings, 71 Fed.Reg. at 27,586 n.1 (May 12,
2006)). Moreover, as the Ibragimov court explained: “a
decision authorizing advance parole does not preclude
denying parole when the alien actually arrives at a port-of-
No. 08-1889 31
entry, should DHS determine that parole is no longer
warranted.” 3 Id.
At oral argument, Samirah’s attorney stated that the
government had always maintained that “Samirah never
had parole” and that “advance parole isn’t actually pa-
role.” Significantly, Samirah’s attorney then added: “And
we agree with that.” In fact, in his petition for rehearing
to this court in Samirah I, Samirah stated that the
Board’s interpretation of advance parole, as not itself
a “parole,” receives Chevron deference. Petition for Re-
hearing at 4, n.3. Samirah then added: “In any event, the
revocation of advance parole authorization is not the
revocation of parole itself.” Id.
Because advance parole is not parole, I do not
believe § 212.5(e)(i) provides a basis for the relief
Samirah seeks, namely re-entry into the United States.4
3
While dicta in a footnote in Succar v. Ashcroft, 394 F.3d 8, 15
n.7 (1st Cir. 2005), does say that advance parole is a type
of parole, that statement is inconsistent with the Board’s view
in G-A-C-, to which we owe deference, as well as the Ninth
Circuit’s decision in Barney, and the Second Circuit’s decision
in Ibragimov.
4
Because § 212.5(e)(i) does not apply to advance parole and
provides no right to the court’s relief, it cannot form the basis
for mandamus jurisdiction. See Iddir v. INS, 301 F.3d 492, 499
(7th Cir. 2002) (“Mandamus relief will be granted if the plain-
tiff can demonstrate that the three enumerated conditions are
present: (1) a clear right to the relief sought; (2) that the defen-
dant has a duty to do the act in question; and (3) no other
(continued...)
32 No. 08-1889
But assuming § 212.5(e)(i) applies to the revocation of
Samirah’s advance parole, I also disagree with the court’s
conclusion that Samirah’s pre-advance-parole status
was as “an applicant for adjustment of status,” Opinion
at 16, and its holding that to regain that status,
Samirah must be allowed to return to the United States.
Being an applicant for the adjustment of status is not
an immigration status—if it were, there would be no
need to assimilate such applicants to the status of an
applicant for entry. Palmer v. INS, 4 F.3d 482, 484 (7th
Cir. 1993). And if we are going to treat “status” as some-
thing other than a recognized immigration status, then
Samirah’s real status was that of an alien abroad with
a grant of advance parole. And returning him to that
status would simply require mandating that the govern-
ment reinstate Samirah’s advance parole.
Instead, though, the court’s mandate to the district
court requires “commanding the Attorney General to
take whatever steps are necessary to enable the plaintiff
to reenter the United States . . . .” Opinion at 26. This
directive is not just indefinite, but beyond this court’s
power. The “several means of compliance” the court
4
(...continued)
adequate remedy is available.”). Thus, Samirah I is entirely
consistent with Iddir, and there was no need to circulate
Samirah I to the entire court pursuant to Rule 40(e). Samirah I,
though, was circulated 40(e) because of the conflict it created
with the Ninth Circuit concerning the availability of habeas
corpus. Samirah v. O’Connell, 335 F.3d 545, 550 n.6. (7th Cir.
2003).
No. 08-1889 33
suggests as options are: (1) issue Samirah another I-512L
form, Opinion at 6; (2) issue Samirah a visa, Opinion
at 22; (3) parole Samirah, Opinion at 22; or (4) just ad-
mit Samirah into the United States without documenta-
tion, Opinion at 6, 23. (1) is reinstatement of advance
parole, which is beyond our power to order. See Samirah I,
335 F.3d at 552. (2) is barred by the consular non-
reviewability doctrine and the fact that the State Depart-
ment is not a party. (3) is a purely discretionary deci-
sion for the Attorney General, which this court lacks
jurisdiction to order, and in any event would not
provide a means for Samirah to reach a port-of-entry—as
he is still in Jordan and lacks a travel document to get
to a port-of-entry.5 And (4) violates the INA. 8 U.S.C.
§ 1182(7)(A)(i).6 What the court cannot order directly, it
cannot order indirectly through a “whatever steps are
necessary” mandate. But if the court insists on forcing
5
Directing the government to grant Samirah parole would
also provide Samirah with greater rights than he held as an
advance parolee, because someone granted advance parole
can still be denied parole at the border. See Ibragimov v. Gonza-
les, 476 F.3d 125, 136 n.15 (2d Cir. 2007) (quoting Eligibility
of Arriving Aliens in Removal Proceedings, 71 Fed.Reg. at
27,586 n.1 (May 12, 2006)).
6
It would also seem that the “whatever steps are necessary”
mandate would require the government to remove Samirah
from a no-fly list, if he is indeed on such a list, as the court
assumes. Opinion at 7. The propriety of including Samirah on
a no-fly list, though, has never been litigated and should not
be unconditionally ordered by the court today.
34 No. 08-1889
the government to allow Samirah back into the United
States, it should just straightforwardly mandate rein-
statement of his advance parole. Although I do not
agree that we have jurisdiction to do so, that would be
the most efficient use of mandamus.
12-3-10