Succar v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-2445

WISSAM SUCCAR,
Petitioner,

v.

JOHN ASHCROFT, Attorney General,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
Lipez, Circuit Judge.

Saher J. Macarius for petitioner.

Anthony P. Nicastro, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, Barry J. Pettinato, Senior
Litigation Counsel, and Anthony C. Payne, Attorney, Office of
Immigration Litigation, Civil Division, United States Justice
Department, were on brief, for respondent.

Mary Kenney, with whom Nadine K. Wettstein, American
Immigration Law Foundation, Iris Gomez, and Massachusetts Law
Reform Institute were on brief, for The American Immigration Law
Foundation, Massachusetts Law Reform Institute, Massachusetts
Immigrant and Refugee Advocacy Coalition, International Institute
of Boston, and The Harvard Immigration and Refugee Clinic of
Greater Boston Legal Services, amici curiae.

January 5, 2005
 LYNCH, Circuit Judge. This case raises issues of first

impression in immigration law as to the validity of a regulation

promulgated in 1997 by the Attorney General, 8 C.F.R. §

245.1(c)(8). The regulation redefines certain aliens as ineligible

to apply for adjustment of status to lawful permanent residents

whom a statute, 8 U.S.C. § 1255(a), defines as eligible to apply.

Under that regulation, the Attorney General will not consider an

application for adjustment of status from the entire category of

aliens who have been granted parole status but have been placed in

removal proceedings.

The essence of the Attorney General's argument is that

since he has been given ultimate discretion to deny adjustment of

status after application, the validity of the regulation is itself

not subject to judicial review, and, if it were, the regulation

must be upheld as a permissible exercise of that ultimate

discretion. We disagree on both points. We hold that there is no

statutory bar to review and that the regulation is contrary to the

language and intent of the statute, 8 U.S.C. § 1255(a). As a

result, we vacate the order removing Wissam Succar from the United

States and remand for further proceedings.

Our reasons, which we explain in more depth below, are as

follows. The mere fact that a statute gives the Attorney General

discretion as to whether to grant relief after application does not

by itself give the Attorney General the discretion to define

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eligibility for such relief. That is clear from INS v. Cardoza-

Fonseca, 480 U.S. 421, 443 (1987). Courts must still interpret the

statute. Where the statute is silent on eligibility, the agency

involved may reasonably choose to exercise its discretion to

withhold relief by excluding certain persons from eligibility for

such relief. Lopez v. Davis, 531 U.S. 230 (2001).

Here, the statute is not silent -- it defines persons who

have parole status as eligible for adjustment of status and does

not carve out an exception for parolees who are in removal

proceedings. See 8 U.S.C. § 1255. That lack of a carve out for

parolees in removal proceedings is itself significant, given that

the statute contains a number of carve outs as to eligibility for

adjustment of status. Some carve outs exclude persons from

eligibility to apply who would otherwise meet more general

eligibility requirements. Further, other carve outs create

eligibility in persons otherwise ineligible. Congress thus has

created a comprehensive scheme.

Viewing the larger statutory context, we find Congress

has also been explicit about where the Attorney General has been

granted discretion and where he has not. By contrast with other

areas, there is no explicit grant of discretion to redefine

eligibility to apply for adjustment of status of parolees to

exclude those in removal proceedings. Congress did not place the

decision as to which applicants for admission are placed in removal

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proceedings into the discretion of the Attorney General, but

created mandatory criteria. See 8 U.S.C. §§ 1225(b)(1), (2). In

addition, persons cannot be granted paroled status at all if they

pose a security risk; they are to be ordered removed and this order

must be reported to the Attorney General. 8 U.S.C. § 1255(c)(1).

The statutory scheme reflects Congress's careful

balancing of the country's security needs against the national

interests Congress wished to advance through adjustment of status

proceedings. The regulation upsets the balance Congress created.

Checking our construction of the statute against the

legislative history of section 1255, we find the regulation to be

inconsistent with the intent expressed in the statute. In 1960,

when Congress included paroled aliens as aliens who are eligible

for adjustment of status relief through section 1255, it did so to

solve certain problems, which we describe later. The effect of the

regulation is to re-institute the problems Congress wished to

solve. Further, until the 1997 promulgation of the regulation, the

Attorney General had consistently interpreted section 1255 in a

manner consistent with the statute and the legislative history and

inconsistent with the 1997 regulation.

In response to the Attorney General's argument that the

1996 enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA) justifies the 1997 regulation, we note

the Attorney General's concession that IIRIRA, which altered so

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much of the immigration laws, left untouched the language of

section 1255, as enacted in 1960, on the matter in question. That

being so, the relevance of the Attorney General's remaining

arguments, largely based on general policy said to be embodied in

IIRIRA, is doubtful. To the contrary, IIRIRA tends to strengthen,

not weaken, the petitioner's claim that the regulation is invalid.

Finally, the purported policy justifications of expediting removal

of aliens and administrative ease must give way to clear

congressional intent.

I.

Wissam Succar is a native and citizen of Lebanon. Succar

arrived at Miami International Airport on October 21, 1998, when

his flight from Lebanon to Panama stopped in the United States. He

approached an official at the airport, stating that he wished to

apply for asylum.

An immigration officer questioned Succar at the airport.

Because Succar did not have the proper documentation for admission,

he was taken into government custody and held at the Krome

detention facility in Miami, Florida. An asylum pre-screening

officer met with Succar on November 19, 1998, and determined that

he had a credible fear of persecution based on his involvement with

the Christian militias in Lebanon. The officer found that the

facts as recounted by Succar could establish his eligibility for

asylum and a credible fear of harm on the basis of an imputed

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political opinion. Succar was placed into removal proceedings and

was subsequently paroled into the United States on November 30,

1998. Succar has remained in parole status.

Over one year later, on January 19, 2000, Succar admitted

the allegations in the Notice to Appear and conceded removability;

he renewed his application for asylum, withholding of removal, and

protection under the Convention Against Torture. On March 1, 2000,

a hearing was held on his asylum application and the trial was set

for April 18, 2000. On April 18, after a hearing on the merits of

his application, the Immigration Judge (IJ) denied Succar's request

for asylum and withholding of removal. Succar appealed this

decision to the Board of Immigration Appeals (BIA).

On February 19, 2001, while his appeal was pending before

the BIA and while he was paroled into the United States, Succar

married a United States citizen. Succar's wife filed an immigrant

visa petition for him, and the petition was approved on April 26,

2001. The approval form directed Succar to contact the local INS

office to obtain Form I-485, the application for adjustment of

status to a permanent resident. Believing that he met the

statutory eligibility requirements for adjustment of status, on

October 17, 2001, Succar filed a motion with the BIA to remand the

proceedings to the IJ for consideration of his application for

adjustment of status under 8 U.S.C. § 1255(a). This motion was

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unopposed by the INS.1 The BIA granted the motion on December 18,

2001 and remanded the case to the IJ for further proceedings. The

remand proved to be fruitless for the INS soon took the position

that under 8 C.F.R. § 245.1,2 Succar was ineligible to apply for

adjustment of status either before the IJ in the removal

proceedings or, separately, before the Immigration Service’s

district director.

At a July 29, 2002 hearing, Succar submitted his

adjustment of status application to the IJ. In the middle of the

hearing, the IJ stated that based on 8 C.F.R. § 245.1, "I am

confident that I don't have the authority to adjust status to

someone who's an arriving alien." The IJ denied the adjustment of

status application as a matter of law, and then continued, "The

Immigration Service doesn't have the authority to adjust his status

unless they are willing to terminate this case with me and if that

be the case, I'll happily do it but I don't have the authority to

1
In March 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security and reorganized
into the Bureau of Immigration and Customs Enforcement. We refer
to the immigration agency throughout as the INS. Mukamusoni v.
Ashcroft, 390 F.3d 110, 113 n.1 (1st Cir. 2004).
2
8 C.F.R. § 245.1(c)(8) is identical to 8 C.F.R. §
1245.1(c)(8). Section 245.1(c)(8) applies to the immigration
agencies in the Department of Homeland Security. Section
1245.1(c)(8) applies to the Executive Office for Immigration Review
in the Department of Justice. This case concerns the validity of
8 C.F.R. § 245.1(c)(8).

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terminate . . . ." In his oral decision of the same day, the IJ

stated:

The respondent is an arriving alien and,
therefore, he is not eligible to adjust status
before the Immigration Judge. Additionally
the respondent is not eligible to adjust
status before the District Director of the
Immigration Service in that he is in [removal]
proceedings. As I indicated to both counsel,
if the Immigration Service wished to have me
terminate these proceedings or even to
conditionally terminate them, I would have
done so in order to afford the Immigration
Service an opportunity to see whether an
adjustment of status ought to be granted.
However, that was not agreed to by the
Immigration Service counsel.

The regulations provide under 8 C.F.R. Section
245.1(c)(8) that any arriving alien who is in
removal proceedings pursuant to Section
235(b)(1) or Section 240 of the Act is
ineligible to adjust status.

The IJ also reaffirmed the previous order of removal to Lebanon.

The petitioner appealed both parts of the IJ's decision

to the BIA, and on September 24, 2003, the BIA affirmed the IJ's

determination in full. On the adjustment of status issue, the BIA

concurred with the IJ that Succar was "ineligible for adjustment of

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status because he is an "arriving alien."3 Succar timely appealed

the BIA’s decision to this court.

II.

We set the issues in the broader context of the

requirements of immigration law.

A. Classes of Aliens

Before 1996, non-citizens were divided into two

categories: (a) applicants for admission and (b) non-citizens

present in the United States who had previously made an entry into

the country either with, or without, an inspection. An applicant

for admission, also called an arriving alien, was an individual

seeking admission who had not yet entered the country.4 After an

inspection, if an applicant was not admitted, he or she was subject

to an exclusion proceeding to determine admissibility into the

United States. The second category, non-citizens who had

3
The BIA also affirmed Succar's order of removal. The Board
agreed with the IJ "that [Succar] has failed to meet his burden of
proof in that he was not credible and did not provide detailed
testimony with which to conclude that he was or would be persecuted
upon return to Lebanon." The BIA also rejected Succar's claim that
the translation during the evidentiary hearing was inadequate,
finding that there was "no evidence to suggest that the respondent
was precluded from presenting testimony or that he was somehow
prejudiced." Succar does not challenge the BIA's affirmance on the
merits of the order of removal in this court, but does challenge
the order of removal insofar as it precludes decision in the United
States of his adjustment of status application. The respondent
makes no argument that this somehow removes from the case the issue
of the validity of the regulation, but defends on the merits.
4
An "applicant for admission" may be physically present in the
country but not yet have "entered" for immigration purposes.

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previously made an entry, were treated as being present in the

United States. They were subject to deportation proceedings to

determine whether they would be deported or admitted to stay.

In 1996, Congress passed IIRIRA. See generally Reno v.

American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999);

Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998). Among many other

changes, Congress eliminated the definition of the term "entry" and

replaced it with the terms "admission" and "admitted." See IIRIRA,

Pub. L. No. 104-208, 110 Stat. 3009-575 (1996). Admission and

admitted now include only "the lawful entry of the alien into the

United States after inspection and authorization by an immigration

officer." 8 U.S.C. § 1101(a)(13)(A)(emphasis added). The main

impact of this change is to re-characterize aliens who are present

in the United States, but who have not been inspected and admitted.

They are now considered "applicants for admission" along with other

arriving aliens. The statute requires that all aliens who are

seeking admission or readmission to the United States be inspected

by immigration officers, prior to a determination of their status.

See 8 U.S.C. § 1225(a)(3).

Congress also eliminated deportation and exclusion

proceedings and replaced them with removal proceedings, which were

applicable to all aliens who were (1) in the United States without

an inspection, (2) inspected and not admitted, or (3) previously

admitted but now subject to removal. See 8 U.S.C. §§ 1225(b)(2),

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1227(a). Special removal proceedings were established for two

types of individuals arriving in the United States: those who are

(1) suspected of being terrorists or a security threat, 8 U.S.C. §

1225(c), or (2) stowaways, 8 U.S.C. § 1225(a)(2). Congress

established expedited removal proceedings for arriving non-citizens

who are charged as inadmissible due to lack of proper documents or

material misrepresentations at entry. See 8 U.S.C. § 1225(b)(1).

Expedited removal proceedings provide little opportunity for

relief; however, aliens in this situation can seek asylum. See 8

U.S.C. § 1225(b)(1)(A). If the alien alleges a credible fear based

on one of the statutory grounds, she receives an interview with an

asylum pre-screening officer. If the officer finds that she has

alleged facts sufficient to justify a credible fear, then the alien

will be referred to an immigration judge. 8 C.F.R. § 235.3(b)(4);

8 C.F.R. § 235.6(a)(1)(ii).

The last type of proceeding is the standard removal

proceeding for persons present in the United States, regardless of

whether they are applicants for admission or have been living in

the United States previously. 8 U.S.C. § 1225(b)(2); 8 U.S.C. §

1229a. Congress did not restrict the type of relief available to

individuals in removal proceedings under section 1229a.

Significantly, the statute does not by its terms prevent this class

of individuals from applying for adjustment of status.

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B. Adjustment of Status

Adjustment of status is "a technical term describing a

process whereby certain aliens physically present in the United

States may obtain permanent resident status . . . without leaving

the United States." 3B Am. Jur. 2d Aliens & Citizens § 2134.

Before 1960, adjustment of status in the United States was only

available to non-citizens legally in the country. See Immigration

and Nationality Act, Pub. L. No. 414, 66 Stat. 217 (1952)(INA).

Any immigrant present in the United States who was eligible for

adjustment of status, but who was no longer in valid immigration

status, had to obtain an immigrant visa at a United States post

abroad in order to obtain permanent resident status. See S. Rep.

No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3136. To

process the immigrant visa at the consular post abroad, an

immigrant residing in the United States had to apply to the INS for

preexamination and voluntary departure in order to insure that he

would be able to be readmitted into the country once he obtained

the immigrant visa. See id.

In 1960, Congress established the current procedure for

adjustment of status to obviate the need for departure and reentry

for aliens temporarily in the United States. Congress explicitly

expanded the group of individuals eligible for adjustment of status

to include all aliens who have been "inspected and admitted or

paroled." See Joint Resolution of July 14, 1960, Pub. L. No. 86-

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648, 74 Stat. 505 (codified as amended at 8 U.S.C. § 1255(a)) ("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 . . .

.") (emphasis added).

"Admitted aliens" means individuals who have presented

themselves for inspection by an immigration officer and who have

been allowed to enter the country. See 8 U.S.C. § 1101(a)(13)(A).

"Paroled aliens" are otherwise inadmissible aliens who are given

permission by the Attorney General to enter temporarily. 8 U.S.C.

§ 1182(d)(5)(A). The statute governing parole states:

The Attorney General may, except as provided
in subparagraph (B) or in section 1184(f) of
this title, 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 .
. . .5

8 U.S.C. § 1182(d)(5)(A).

5
The exceptions to the parole authority of the Attorney
General do not apply to this case. The limitation from
subparagraph B states that an alien who is a refugee cannot be
paroled "unless the Attorney General determines that compelling
reasons in the public interest with respect to that particular
alien require that the alien be paroled into the United States
rather than be admitted as a refugee under section 1157 of the
title." 8 U.S.C. § 1182(d)(5)(B). The other limitation deals with
aliens who are crewmen serving in good faith on board a vessel.
See 8 U.S.C. § 1184(f).

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 In addition to being "inspected and admitted or paroled,"

aliens must be eligible to receive an immigrant visa and this visa

must be immediately available to them. 8 U.S.C. § 1255(a). Aliens

seeking an immigrant visa must first receive approval of an

immigrant petition, which is usually filed by an employer or a

relative. The alien must then wait for and receive an immigrant

visa number, which means that a visa has been assigned.6 Dep’t of

Homeland Sec., Citizenship & Immigration Servs., How do I get an

Immigrant Visa Number, at http://uscis.gov/graphics/howdoi/

immvisa.htm (last modified October 31, 2003).

C. Parole

The purpose of parole is to permit a non-citizen to enter

the United States temporarily while investigation of eligibility

6
There are three types of immigrant visas available: (1)
family-sponsored immigrant visas, (2) employment-based immigrant
visas, and (3) diversity immigrant visas. 8 U.S.C. §§ 1151(a)(1),
(2), (3). For immediate relatives of United States citizens,
including spouses, parents, and unmarried children under the age of
21, an immigrant visa number is automatically available upon
approval of the visa petition. Dep’t of Homeland Sec., Citizenship
& Immigration Servs., How do I get an Immigrant Visa Number?, at
http://uscis.gov/graphics/howdoi/immvisa.htm (last modified October
31, 2003). All other individuals seeking visas based on familial
relationships and individuals seeking to receive visas based on
employment must wait for a visa number. These numbers come
available in order of preference for different types of
relationships and employment. 8 U.S.C. §§ 1153(a), (b)(1). As for
relationships, first priority is given to unmarried sons and
daughters of United States citizens over the age of 21. 8 U.S.C.
§ 1153(a). In the employment context, first priority is given to
workers with extraordinary abilities, professors and researchers,
and certain multinational executives and managers. 8 U.S.C. §
1153(b).

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for admission takes place.7 Congress has ordered certain aliens

removed; they are not eligible for parole. 8 U.S.C. § 1225(c)(1).

Congress has set forth the conditions for parole in the statute.

See 8 U.S.C. § 1182(d)(5)(A). Congress authorizes the Attorney

General to allow parole "temporarily under such conditions as he

may prescribe only on a case-by-case basis for urgent humanitarian

reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A).

Accordingly, the Attorney General has promulgated regulations. 8

C.F.R. § 212.5. Under the regulations, aliens in one of five

groups can be paroled for urgent humanitarian reasons or

significant public benefit "provided the aliens present neither a

security risk nor a risk of absconding." 8 C.F.R. § 212.5(b).

These five groups are: (1) aliens with a serious medical condition,

7
There are several types of parole. In 2003, 70% of all
parolees were paroled under the most common type of parole, port of
entry parole. Dep't of Homeland Sec., Office of Immigration
Statistics, 2003 Yearbook of Immigration Statistics 83. Port of
entry parolees are "authorized at the port upon alien's arrival;
[port of entry parole] applies to a wide variety of situations and
is used at the discretion of the supervisory immigration inspector,
usually to allow short periods of entry." Id. at 190. Advance
parole is a second type of parole; it is issued to an alien
residing in the United States who has an unexpected need to travel
abroad and whose conditions of stay do not otherwise allow for
readmission to the United States. Id. Deferred inspection parole
is conferred by an immigration inspector when aliens appear with
documentation, but after preliminary examination some questions
remain about their admissibility. Id. The three other types of
parole are humanitarian parole, granted in instances of medical
emergency; public interest parole, granted for aliens participating
in legal proceedings; and overseas parole, which is granted,
usually by special statute, to individuals while they are in their
home country to allow them to enter the United States.

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(2) women who have been medically certified as pregnant, (3) aliens

who are defined as juveniles in certain circumstances, (4) aliens

who will be witnesses in judicial proceedings, and (5) aliens whose

continued detention is not in the public interest as determined by

the officials charged with exercising this discretion. 8 C.F.R. §

212.5(b)(1)-(5). In making their decisions, immigration officers

can consider whether the alien has "[c]ommunity ties" such as close

relatives with known addresses. 8 C.F.R. § 212.5(d)(2). Arriving

aliens who claim asylum and establish a credible fear with an

asylum pre-screening officer can be paroled at the point of entry

while they pursue their asylum application.8

A paroled individual is not considered "admitted" into

the United States: he is an "applicant for admission." 8 U.S.C. §

1101(13)(B). He is not detained and is allowed to temporarily

enter the United States. However, "when the purposes of such

parole . . . 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

8
A report to Congress governing the use of the Attorney
General's parole authority indicates that aliens establishing a
credible fear of persecution can be and often are paroled into the
United States while they seek asylum. Immigration & Naturalization
Serv., Report to Congress: Use of the Attorney General’s Parole
Authority Under the Immigration & Nationality Act: Fiscal Years
1998-1999, 8 (2003), available at
http://uscis.gov/graphics/repsstudies/parolerpt9899.pdf.

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U.S.C. § 1182(d)(5)(A). It appears from the face of the statute

that the Attorney General has no discretion in this determination.

As soon as the reasons for parole have been served, the individual

must be returned to custody.

By statute, paroled individuals9 are eligible for

adjustment of status if they meet the other statutory eligibility

requirements. 8 U.S.C. § 1255(a). Section 1255 makes no

distinction between those who are in removal proceedings and those

who are not for purposes of adjustment of status.

Since the 1960 enactment of section 1255(a), Congress has

on several occasions amended other provisions of 8 U.S.C. § 1255 to

restrict the class of people who are eligible to receive adjustment

of status. For example, alien crewmen, aliens continuing or

accepting unauthorized employment, and aliens admitted in transit

without a visa are not eligible to adjust status under section

1255(a), unless they fall into limited exceptions to the bar on

eligibility. 8 U.S.C. § 1255(c). Congress also limited the

ability of an alien to adjust status if the alien is married in the

United States while in judicial proceedings. 8 U.S.C. §

1255(e)(1).10 Significantly, Congress has never taken parolees, as

9
Succar's application was made during the removal proceedings
and the respondent makes no argument that Succar's parole was
revoked.
10
The respondent does not argue that Succar is ineligible to
adjust status on the ground that he entered into his marriage while
his removal proceedings were pending. Regardless, it appears from

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a group, out of the class of eligible aliens, despite over a dozen

opportunities--where section 1255 was otherwise amended--to do so.

Parolees, although they are physically present in the

United States, are treated as if they were at the border seeking

admission. Before the 1996 IIRIRA statutory changes, parolees were

subject to exclusion proceedings. Post-IIRIRA, individuals who are

paroled and are seeking asylum are subject to removal proceedings.

As arriving aliens, parolees are subject to removal proceedings.

"[I]f the examining officer determines that an alien seeking

admission is not clearly and beyond a doubt entitled to be

admitted, the alien shall be detained for a [removal] proceeding .

. . ." 8 U.S.C. § 1225 (b)(2)(A). Parolees are generally not

"clearly and beyond a doubt" entitled to admission. However, as

parolees, they are not in detention. Until the final order of

removal, which in some circumstances–-such as where the applicant

is applying for asylum--can take years, paroled aliens in removal

proceedings, such as Succar, live, work and form relationships

within the United States.

the record that Succar fits within the exception to this
prohibition, 8 U.S.C § 1255(e)(3), as he was granted approval of
the I-130 petition, filed by Succar's wife on his behalf, and the
request for a bona fide marriage exemption.
The respondent's only argument as to why Succar is ineligible
to adjust status is the Attorney General's regulation denying
adjustment of status to arriving aliens (including parolees) in
removal proceedings.

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D. Parolees and Adjustment of Status

Before the promulgation of 8 C.F.R. § 245.1(c)(8),

paroled aliens in exclusion proceedings had an independent avenue

to apply for adjustment of status.11 In re Castro-Padron, 21 I. &

N. Dec. 379, 379-80 (BIA 1996). The BIA held that in exclusion

proceedings, jurisdiction over an alien's application for

adjustment of status lay with the district director of the

immigration agency, not the IJ. Id. at 379. The Board explained,

"[A]pplicants [in exclusion proceedings] can file their adjustment

application with the district director of the [INS], who has sole

jurisdiction over the application and can act on the application

independently of these [exclusion] proceedings." Id. at 380.

Historically, the district director had jurisdiction over

the adjustment application of both aliens in deportation

proceedings who were admitted and aliens in exclusion proceedings

who were paroled.12 In re Mannah, 16 I. & N. Dec. 272, 274 (BIA

11
Upon a clarification request from this court on the law prior
to the passage of the regulation in question, the Attorney General
joined in a letter with the petitioner which explained that prior
to 1997, arriving aliens in exclusion proceedings who were
statutorily eligible for adjustment of status could apply to the
district director for this relief.
12
The pre-1997 regulations allowed one subcategory of parolees,
advanced parolees, to bring an initial application for adjustment
of status before the IJ and to renew before an IJ applications for
adjustment of status previously denied by the district director.
In re Castro-Padron, 21 I. & N. Dec. 379, 380 (BIA 1996). Advanced
parolees were aliens who had been granted advance parole before
leaving the United States. They then left, returned, and were now
in exclusion proceedings. They were treated the same as admitted

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1977). In 1961, regulations gave the IJ the authority in

deportation cases to renew admitted aliens' adjustment applications

that were denied by the district director and to adjudicate initial

applications for such aliens in deportation proceedings. Id. With

this change, the district director no longer had authority over

adjustment applications once deportation proceedings began. Id.

However, the Board determined that this enlarged jurisdiction did

not apply when the alien was in exclusion proceedings: the

district director retained sole authority for adjustment of status

applications. Id.

In 1997, the Attorney General13 promulgated new

regulations, which were said to implement IIRIRA. The regulations

created a new definition for the term arriving alien:

The term arriving alien means an applicant for
admission coming or attempting to come into
the United States at a port of entry, or an
alien seeking transit through the United
States at a port-of-entry, or an alien
interdicted in international or United States
waters and brought into the United States by
any means, whether or not to a designated
port-of-entry, and regardless of the means of
transport. An arriving alien remains such

aliens in deportation proceedings, meaning that they could apply to
the IJ for adjustment of status. The Board held that this
regulation did not apply to other paroled aliens who were arriving
for the first time and were placed in exclusion proceedings -- they
continued to be limited to pursuing their adjustment applications
before the district director only. Id.
13
The Attorney General at the time of the promulgation of this
regulation was Janet Reno. Successor Attorney General, John
Ashcroft, chose to defend this regulation.

-20-
 even if paroled pursuant to section 212 (d)(5)
of the Act . . . .

8 C.F.R. § 1.1(q).

Armed with this new definition of arriving alien, the

Attorney General made a substantive change to the adjustment of

status regulations. The Attorney General made several categories

of aliens ineligible to apply for adjustment of status under 8

U.S.C. § 1255(a), including "[a]ny arriving alien who is in removal

proceedings pursuant to section 235(b)(1) or section 240 of the

Act." 8 C.F.R. § 245.1(c)(8) (emphasis added). It is this

particular provision of the regulation that is challenged before

this court.

The Attorney General also enacted regulations regarding

the proper place for an eligible individual to file for adjustment

of status. A key regulation states:

An alien [who believes he or she is eligible
for adjustment of status] shall apply to the
director having jurisdiction over his or her
place of residence . . . . After an alien,
other than an arriving alien, is in
deportation or removal proceedings, his or her
application for adjustment of status . . .
shall be made and considered only in those
proceedings. . . . An arriving alien, other
than an alien in removal proceedings, who
believes he or she meets the eligibility
requirements . . . , shall apply to the
director having jurisdiction over his or her
place of arrival.

8 C.F.R. § 245.2(a)(1) (emphasis added). A parolee in removal

proceedings thus no longer has the ability to apply before anyone,

-21-
either the district director or the IJ, for adjustment of status.

By contrast, a parolee who is not in removal proceedings (as an

arriving alien) can, consistent with earlier practice, apply to the

district director for adjustment of status. We are informed that

most arriving alien parolees are placed in removal proceedings.

The new regulatory scheme is, thus, a break from earlier practice.

In promulgating 8 C.F.R. § 245.1(c)(8) in 1997, the

Attorney General explained the rationale for the new regulation:

Consistent with Congress' intent that arriving
aliens . . . be removed in an expedited manner
through the procedures provided . . . , the
Attorney General has determined that she will
not favorably exercise her discretion to
adjust the status of arriving aliens who are
ordered removed . . . .

62 Fed. Reg. 444, 452 (January 3, 1997). In an effort to quickly

remove aliens, the regulation aimed to eliminate avenues available

to arriving aliens in removal proceedings that allow such aliens to

"delay their removal through an application for adjustment of

status." Id. The Attorney General explained that an arriving

alien will not be able to adjust status within the United States.

If an arriving alien is eligible for an immigrant visa, she will be

"required to return to . . . her country of residence and request

it through the consular process available to all aliens outside of

the United States." Id. The Attorney General believed that if

"the Service decides as a matter of prosecutorial discretion, not

to initiate removal proceedings but to parole the arriving alien,

-22-
the alien will be able to apply for adjustment of status before the

district director." Id.

Under the new regulations, arriving aliens in removal

proceedings (regardless of whether they otherwise meet the

statutory criteria for adjustment of status) must leave the United

States and go through consular processing in order to adjust

status; the respondent has represented that this is the only option

available to them. But there are significant limitations even as

to this avenue. Non-citizens are subject to 8 U.S.C. §

1182(a)(9)(B)(i), which bars non-citizens from reentry into the

United States for three years if they were unlawfully present in

the United States for more than 180 days but less than one year and

for ten years if they were unlawfully present for more than one

year.14 Any waiver of this statutory bar is in the absolute

discretion of the Attorney General. 8 U.S.C. § 1182(a)(9)(B)(v).

Also, non-citizens who have not been admitted into the United

States are ineligible for voluntary departure. 8 U.S.C. §

1229c(a)(4). Following any involuntary removal, they will be

ineligible for readmission for five years unless the Attorney

General grants a waiver. 8 U.S.C. § 1182(a)(9)(A)(i), (iii).

Parolees have, by definition, not been admitted, and thus will

generally be subject to this five year bar for involuntary removal

14
Succar asserts that he would be barred from reentry into the
United States for ten years, and the government does not contend
otherwise.

-23-
as well. Denying paroled aliens in removal proceedings the ability

to adjust status within the United States thus creates a

significant hardship on these individuals and their families.

Of course, as the Attorney General has stated, the

immigration agency in theory can decide to terminate the removal

proceedings in the alien's favor, which would allow the arriving

alien–-who would then not be in removal proceedings–-to apply for

adjustment of status before the district director. The government

as prosecutor in the removal proceedings may, in its discretion,

terminate the proceedings in order to permit the alien to apply for

adjustment of status. But as this case demonstrates, the BIA has

apparently taken the position that neither it nor the IJ may

suspend or terminate the proceedings for this purpose without the

government's consent.

III.

Availability of Judicial Review of Statutory Interpretation Claim

The Attorney General first argues that 8 U.S.C §

1252(a)(2)(B) precludes judicial review of the Attorney General's

denial of Succar's application for adjustment of status because the

Attorney General, through the promulgation of 8 C.F.R. §

245.1(c)(8), made a discretionary determination that arriving

aliens do not merit adjustment of status under 8 U.S.C. § 1255. We

disagree and exercise review.

-24-
 Section 1252 provides for judicial review of orders of

removal, and sets forth limitations on this review. The Attorney

General relies on §1252(a)(2)(B), which reads in part as follows:

(B) Denials of discretionary relief
Notwithstanding any other provision of
law, no court shall have jurisdiction to
review--
(i) any judgment regarding the granting
of relief under section . . . 1255 of this
title

8 U.S.C § 1252(a)(2)(B)(i). Both the Supreme Court and this court

have consistently rejected arguments that Congress has eliminated

judicial review of the legal question of interpretation of the

statute as to whether an alien is eligible for consideration of

relief.15

Succar challenges the Attorney General's regulation as

being contrary to the statute; that is a classic issue for the

court to decide. The issue presented is a purely legal question

and as such is not within the jurisdictional bar of 8 U.S.C. §

1252(a)(2)(B). That is the ruling of Zadvydas v. Davis, 533 U.S.

678, 688 (2001), which exercised judicial review over a challenge

to the extent of the Attorney General's authority to detain an

15
A decision by the Attorney General on the merits of the
application for adjustment of status under 8 U.S.C. § 1255 is
committed to the discretion of the Attorney General. If the BIA
had adjudicated and denied Succar's application on the merits, and
Succar challenged this decision, then, arguably, this court would
not have jurisdiction to review that discretionary determination.
This is not what is at issue here; rather the issue is one of
statutory interpretation. The two questions are distinct.

-25-
alien indefinitely under the post-removal-period detention statute

because the authority of the Attorney General to act is "not a

matter of discretion" and is subject to judicial review. So here

the challenge goes to the Attorney General’s statutory authority

and not his discretion. See Subhan v. Ashcroft, 383 F.3d 591, 594

(7th Cir. 2004) (interpreting 8 U.S.C. § 1252(a)(2)(B) as

preserving jurisdiction when the decision is not "a judgment

denying a request for adjustment of status" under 8 U.S.C. § 1255);

see also Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th

Cir. 2002) (Section 1252(a)(2)(B)(i) does not preclude review of

"purely legal and hence non-discretionary" questions.); Prado v.

Reno, 198 F.3d 286, 288 (1st Cir. 1999) (Whether a court can

exercise review depends on the grounds upon which the decision of

the BIA rests and "the precise nature of the claims made in the

petition.").

Quite literally, the Attorney General did not, under 8

U.S.C. § 1252(a)(2)(B)(i), make "a judgment regarding the granting

of relief under section 1255," because the effect of the regulation

is to preclude an alien from even applying for relief under section

1255. See Subhan, 383 F.3d at 594 (exercising jurisdiction over

the IJ's decision even though the effect of the decision is the

same as that of a denial of an adjustment of status application;

the court has jurisdiction because "the purpose behind [8 U.S.C. §

1252(a)(2)(B)(i)] is presumably to shield from judicial review

-26-
judgments regarding the propriety of adjusting an alien's status,

and no such judgment has ever been made with regard to the

[petitioner]").

This court has jurisdiction to review Succar's claim

under 28 U.S.C. § 1331, which grants courts general federal

question jurisdiction, Reno v. Catholic Soc. Servs., Inc., 509 U.S.

43, 56 (1993), and the Administrative Procedure Act (APA), which

gives a court power to "'hold unlawful and set aside' not only

agency action that is 'arbitrary' or 'capricious,' but also agency

action that is 'otherwise not in accordance with law' or is 'in

excess of statutory jurisdiction, authority, or limitations, or

short of statutory right.'" Cousins v. Sec’y of the United States

Dep’t of Transp., 880 F.2d 603, 608 (1st Cir. 1989) (quoting 5

U.S.C. § 706(2)(A, C)). "It is 'central to the real meaning of

"the rule of law," [and] not particularly controversial' that a

federal agency does not have the power to act unless Congress, by

statute, has empowered it to do so." Transohio Sav. Bank v. Dir.,

Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir. 1992)

(quoting Edward L. Rubin, Law and Legislation in the Administrative

State, 89 Colum. L. Rev. 369, 402 (1989)) (alteration in

Transohio). When an agency action is contrary to the scope of a

statutory delegation of authority or is an arbitrary and capricious

exercise of that authority, that action must be invalidated by

reviewing courts.

-27-
 IV.

A. Merits: Validity of Regulation Vis-à-Vis the Statute

The question presented is whether the regulation, 8

C.F.R. § 245.1(c)(8), is invalid as clearly contrary to 8 U.S.C. §

1255(a) or as an arbitrary or capricious exercise of the Attorney

General's delegated authority. The regulation affects certain

arriving aliens who have been granted parole into the United States

and have also been placed in removal proceedings. As explained

above, before adoption of 8 C.F.R. § 245.1(c)(8) in 1997, this

category of aliens, if they met the other statutory requirements,

could apply for adjustment of status with the local district

director. The effect of 8 C.F.R. § 245.1(c)(8) is to deny

eligibility for relief under 8 U.S.C. § 1255 to this category of

aliens by precluding consideration of their applications either

before the district director or before an IJ.

Succar and supporting amici16 launch a three-fold attack

on the regulation. First, they argue the regulation is flatly

inconsistent with congressional intent as expressed in 8 U.S.C. §

1255(a) and the legislative history. Alternatively, they argue

there are two possible interpretations of the regulation which must

be adopted to avoid a conflict between the regulation and the

statute. Finally, they argue that the Attorney General has acted

16
Both the American Immigration Law Foundation and the
Massachusetts Law Reform Institute have participated as amici and
we acknowledge their able assistance.

-28-
ultra vires. Succar argues that 8 U.S.C. § 1255(a) expressly

mentions persons in parole status (without restricting that status

to those not in removal proceedings) as among those eligible to

apply for adjustment of status, and therefore Congress intends for

any decision made within the Attorney General's admitted discretion

to be made on an individualized basis after an eligible alien

applies, not as a categorical eligibility exclusion.17

The Attorney General defends the regulation, arguing that

8 U.S.C. § 1255(a) expressly states that the decision to grant

adjustment of status is subject to the Attorney General's

discretion and that the regulation is no more than a valid exercise

of that discretion. The Attorney General points out that the

regulation does not make all of those in parole status ineligible

to apply for adjustment of status, only those who have been placed

in removal proceedings. However, it was represented in the briefs

17
The majority of petitioner's efforts to attack the statute
are unpersuasive. We explain briefly the futility of these
attacks. The Attorney General was expressly given discretion by
the statute and has authority to promulgate regulations, so that
cannot be the basis of an ultra vires attack.
If a regulation is unreasonable in light of the statute as
either arbitrary and capricious or as flatly inconsistent with the
clear meaning of the statute as expressed by Congress, the
regulation will violate the Chevron doctrine, and calling the
regulation ultra vires in those circumstances adds nothing to the
analysis. See Chevron USA, Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984).
Further, while the doctrine of constitutional avoidance
permits a court in some instances to adopt a particular
construction of a law to avoid issues of unconstitutionality, that
doctrine is unavailable here. The claims of petitioner are based
not in the Constitution but in a statute.

-29-
before this court that the "majority of the intended beneficiaries

of parolee adjustment of status are in removal proceedings." The

Attorney General does not dispute this statement.

Paroled individuals must be placed in removal proceedings

"if the examining immigration officer determines that an alien

seeking admission is not clearly and beyond a doubt entitled to be

admitted." 8 U.S.C. § 1225(b)(2)(A). The Attorney General argues

that the challenged regulation does not effectuate a final

exclusion from eligibility because even though these individuals

cannot apply while they are physically in the United States, the

alien can leave the United States and then apply for an immigrant

visa at the embassy or consular office in his home country.

The petitioner responds that the result of such a

requirement, contrary to congressional intent, is that many aliens

would be barred from even applying from outside the country for

long periods of time because of the statutory bars discussed above.

8 U.S.C. § 1182(a)(9).18 As we shall see, in enacting section

1255(a) in 1960, Congress expressed an intent that eligible aliens

be able to adjust status without having to leave the United States,

to relieve the burden on the United States citizen with whom the

18
Others, the petitioner argues, will not be able to return to
their home countries because they fled, fearing persecution there,
the basis for their asylum application. The logical response is
that if those aliens prove they are eligible for asylum or
withholding of removal, they may, in the discretion of the agency,
not be removed. They may then apply for adjustment of status.

-30-
aliens had the requisite family or other relationship, on the

United States consulates abroad, and on the alien. That was one of

the primary purposes of the legislation.

The Attorney General also argues that the passage of

IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (1996), altered the

immigration laws in many restrictive ways. Petitioner counters

that IIRIRA did indeed tighten restrictions, but points out that

application for adjustment of status by parolees was one of the few

areas untouched. This, the petitioner says, reflected Congress's

consistent understanding that the immigration agency would consider

applications for adjustment of status from parolees, whether in

removal proceedings or not.

B. Standard of Review

Two points are undisputed: Congress has granted the

Attorney General some degree of discretion to adjust the status of

statutorily specified aliens in 8 U.S.C. § 1255 and Congress has

granted the Attorney General authority to promulgate regulations

which guide the exercise of this discretion. 8 U.S.C. §

1103(g)(2). When there is no challenge to whether Congress

authorized the Attorney General to issue regulations, we are faced

with only two questions.

We first ask whether "Congress has directly spoken to the

precise question at issue." Chevron USA, Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842 (1984). If so, courts, as well as

-31-
the agency, "must give effect to the unambiguously expressed intent

of Congress." Id. at 842-43. As the Supreme Court has said in the

immigration context:

The judiciary is the final authority on issues
of statutory construction and must reject
administrative constructions which are
contrary to clear congressional intent. If a
court, employing traditional tools of
statutory construction, ascertains that
Congress had an intention on the precise
question at issue, that intention is the law
and must be given effect.

INS v. Cardoza-Fonseca, 480 U.S. at 447-48 (quoting Chevron USA

Inc., 467 U.S. at 843 n.9) (internal quotation marks omitted).

"Chevron[] deference to [an agency's] statutory interpretation is

called for only when the devices of judicial construction have been

tried and found to yield no clear sense of congressional intent."

Gen. Dynamics Land Sys., Inc. v. Cline, 124 S. Ct. 1236, 1248

(2004).

In determining whether a statute exhibits Chevron-type

ambiguity, and hence warrants deference to the Attorney General’s

interpretation of the statute, courts look at both the most natural

reading of the language and the consistency of the "interpretive

clues" Congress provided. Gen. Dynamics Land Sys., Inc., 124 S.

Ct. at 1240, 1248. In determining the meaning of a statute, our

analysis begins with the language of the statute. See Leocal v.

Ashcroft, 125 S.Ct. 377, 382 (2004) (reversing INS interpretation

of term "crime of violence" in 8 U.S.C. § 1227(a)(2)(A)(iii) and 8

-32-
U.S.C. § 1101(a)(43)(f)). "[W]e construe language in its context

and in light of the terms surrounding it." Id. Another "regular

interpretive method" is reference to statutory history to see if

any "serious question . . . even about purely textual ambiguity" is

left. Gen. Dynamics Land Sys., Inc., 124 S. Ct. at 1248.

However, whenever Congress has left a gap for the agency

to fill, then we reach the second question, for the agency's

regulation is "given controlling weight unless [it is] arbitrary,

capricious, or manifestly contrary to the statute." Chevron USA,

Inc., 467 U.S. at 843-44; see Household Credit Servs., Inc. v.

Pfennig, 124 S. Ct. 1741, 1746-47 (2004).

If the statutory terms are ambiguous, then the principle

of Chevron deference to the Attorney General's choice must apply.

Cardoza-Fonseca, 480 U.S. at 448. Indeed, the Supreme Court has

said that "judicial deference to the Executive Branch is especially

appropriate in the immigration context where officials 'exercise

especially sensitive political functions that implicate questions

of foreign relations.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).19 That

19
The regulations guiding the Attorney General's parole
decisions do not allow for the parole of aliens thought to be a
security risk. 8 C.F.R. § 212.5(b). Further, if the arriving
alien is thought to be inadmissible because (1) he has engaged in
or is suspected of being a terrorist, 8 U.S.C. § 1182(a)(3)(B), (2)
he seeks to enter into the country to engage in actions against the
United States government, 8 U.S.C. § 1182(a)(3)(A), or (3) his
entry or proposed actions in the United States would have
potentially serious adverse foreign policy consequences for the

-33-
said, the court has not hesitated to reject an INS interpretation

as contrary to congressional intent. See, e.g., Leocal, 125 S. Ct.

at 382; Cardoza-Fonseca, 480 U.S. at 448-49.

C. Statutory Ambiguity

Each party initially argues that the statute is

unambiguous, in its favor. The Attorney General argues that the

statute unambiguously grants him discretion to allow or deny

adjustment of status to an alien. One way to exercise that

discretion, the Attorney General argues, is to make certain

categories of otherwise eligible aliens ineligible to apply and so

ineligible to warrant the favorable exercise of the Attorney

General’s discretion. In the Attorney General's view, this is the

end of the matter.

We agree that the statute gives the Attorney General

discretion, but disagree that this ends the analysis as to whether

the Attorney General can promulgate this particular categorical

eligibility exclusion. The Supreme Court itself has ruled that the

two questions of discretion as to the ultimate relief and

discretion as to eligibility exclusions are distinct. See Cardoza-

Fonseca, 480 U.S. at 443-44 (distinguishing between the discretion

in the Attorney General as to the ultimate decision to grant relief

United States, 8 U.S.C. § 1182(a)(3)(C), the alien shall be ordered
removed, and the order of removal shall be reported to the Attorney
General. 8 U.S.C. § 1225(c). The order of removal is subject to
limited review procedures. 8 U.S.C. § 1225(c)(2).

-34-
and the underlying process and criteria for eligibility for

relief); see also Goncalves, 144 F.3d at 125 ("Analytically, the

decision whether an alien is eligible to be considered for a

particular discretionary form of relief is a statutory question

separate from the discretionary component of the administrative

decision whether to grant relief.").

The statute, we find, is unambiguous on this issue and

that congressional clarity works against the Attorney General. We

reject the respondent's argument that Congress authorized 8 C.F.R.

§ 245.1(c)(8), making parolees in removal proceedings ineligible to

adjust status, either by "express delegation or the introduction of

an interpretive gap." Pauley v. BethEnergy Mines, Inc., 501 U.S.

680, 696 (1991). Congress has spoken clearly on the issue of

eligibility for adjustment of status and has reserved for itself

the determination of whether a non-citizen should be able to apply

for this relief. The Attorney General cannot promulgate a

regulation that categorically excludes from application for

adjustment of status a category of otherwise eligible aliens; this

is contrary to congressional intent in section 1255.

1. Text of the Statute

We look first to 8 U.S.C. § 1255 itself, which provides:

§ 1255. Adjustment of status of nonimmigrant
to that of person admitted for permanent
residence

-35-
 (a) Status as person admitted for permanent
residence on application and eligibility for
immigrant visa

The status of an alien who was
inspected and admitted or paroled into the
United States or the status of any other alien
having an approved petition for classification
. . . 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) (emphasis added).

Congress defined certain categories of aliens who were

eligible to apply for adjustment of status, 8 U.S.C. § 1255(a), and

refined the definition by specifically excluding certain aliens

from eligibility, 8 U.S.C. §§ 1255(c), (e). By statute, two

categories of aliens are eligible to apply. First is an alien who

was inspected and admitted. Second is an alien who was paroled.

8 U.S.C. § 1255(a). The Attorney General's regulation carves out

an exception from this second category of eligible aliens, by

making paroled aliens who are placed in removal proceedings

ineligible for adjustment of status relief, even if they otherwise

meet the statutory requirements. 8 C.F.R. § 245.1(c)(8).

Congress unambiguously reserved to itself the

determination of who is eligible to apply for adjustment of status

-36-
relief. 8 C.F.R. § 245.1(c)(8) conflicts with the statute in

several ways.

First, Congress itself explicitly determined categories

of aliens (those aliens who had been "inspected and admitted or

paroled") who are eligible for adjustment of status if they

otherwise meet the statutory requirements. 8 U.S.C. § 1255(a).

Despite numerous amendments to 8 U.S.C. § 1255 since 1960, Congress

has not limited the eligibility of paroled aliens under section

1255(a).20 The statute has never stated that an alien is ineligible

to adjust status if he is in removal proceedings.

Second, when Congress desired to limit the ability of a

non-citizen who might otherwise have been eligible to apply for

adjustment of status under 1255(a), it has done so explicitly by

defining several categories of aliens as not eligible to apply.

For example, alien crewmen, aliens continuing or accepting

unauthorized employment, and aliens admitted in transit without a

visa are not eligible to adjust status under section 1255(a) unless

they fall into limited exceptions. 8 U.S.C. § 1255(c)

("[S]ubsection (a) [of 8 U.S.C. § 1255] shall not be applicable to

20
Since 1960, Congress has amended section 1255(a),
specifically, two times. Historical & Statutory Notes, 8 U.S.C.A.
§ 1255. These two amendments do not have any effect on the
eligibility of paroled individuals to adjust status and are not at
issue in this case. Both of these amendments to section 1255(a)
expanded the category of aliens eligible for adjustment of status
and in no way limited the eligibility of a paroled alien to adjust
status.

-37-
. . . .")(emphasis added). Another category of aliens that

Congress has explicitly determined is ineligible to apply for

relief under section 1255(a) is the alien who is seeking to obtain

an immigrant visa based on a marriage entered into while judicial

proceedings are pending regarding the alien's right to be admitted

or remain in the United States. 8 U.S.C. § 1255(e).21 The statute

is clear that even if these individuals were "inspected and

admitted or paroled" and complied with the other statutory

requirements, they are not eligible to apply.

There are two themes. First, Congress explicitly

rendered ineligible a certain category of aliens to apply. Second,

that category of excluded aliens included some in removal

proceedings, but Congress chose not to disqualify from eligibility

all of those aliens "inspected and admitted or paroled" in removal

or other judicial proceedings. In those limited circumstances when

the involvement in proceedings works to hamper an individual's

ability to adjust status, Congress has explicitly said so.

Third, Congress also has determined that some aliens whom

it has deemed ineligible under 8 U.S.C. § 1255(c) might in some

limited circumstances still be eligible for adjustment of status

21
This section does not apply if "the alien establishes by
clear and convincing evidence to the satisfaction of the Attorney
General that the marriage was entered into in good faith and in
accordance with the laws of the place where the marriage took place
and the marriage was not entered into for the purpose of procuring
the alien's admission as an immigrant." 8 U.S.C. § 1255(e)(3).

-38-
relief. For example, in 8 U.S.C. § 1255(i), Congress allows

adjustment of status for certain aliens who entered the United

States without inspection or who are categorized in section 1255(c)

of the statute as being ineligible. Congress states that if these

aliens are beneficiaries of either "(i) a petition for

classification under [8 U.S.C. §] 1154 . . . that was filed with

the Attorney General on or before April 30, 2001; or (ii) an

application for a labor certification under [8 U.S.C. §]

1182(a)(5)(A) . . . that was filed . . . on or before such date,"

then they "may apply to the Attorney General for adjustment of . .

. status to that of an alien lawfully admitted for permanent

residence." See 8 U.S.C. § 1255(i).22 When Congress has wanted to

impose special restrictions on the applications for certain

categories of aliens that it has deemed eligible, or conversely to

open up eligibility for aliens that were ineligible, it has done so

22
The statute provides that the "Attorney General may accept
such application only if the alien remits with such application a
sum equaling $1,000 as of the date of receipt of the application."
8 U.S.C. § 1255(i)(1) (emphasis added). "Upon receipt of such an
application and the sum hereby required, the Attorney General may
adjust the status of the alien to that of an alien lawfully
admitted for permanent residence," if the alien meets certain
statutory requirements. 8 U.S.C. § 1255(i)(2) (emphasis added).
This particular provision gives further weight to Congress's
intention to distinguish between the two steps necessary for
adjustment of status: (1) eligibility to apply and (2) a favorable
determination by the Attorney General. Section 1255(i), unlike the
other provisions governing who is eligible to apply for adjustment
of status, seems to give the Attorney General some discretion over
whether these aliens are even eligible to apply, as well as over
the decision whether to adjust.

-39-
explicitly. But Congress has imposed no restrictions on applying

for adjustment of status for a paroled alien based on that alien's

being in removal proceedings.

2. Context of the Statutory Scheme

The terms and provisions of 8 U.S.C. § 1255(a) must be

understood in the larger context of the statutory scheme. The

immigration laws about adjustment of status are not a haphazard

compilation of provisions; they are a calibrated set of rules that

govern an area of national importance. Congress in many instances

has specifically determined when to give discretion to the Attorney

General and when to make its own policy choices. Viewing the

statutory scheme in this manner clarifies two things: first, that

the exclusion of parolees in removal proceedings renders ineligible

most of the class that Congress rendered eligible by including

parolees (for Congress clearly stated that most parolees would be

in removal proceedings), and second, that the congressional choice

to delegate to the Attorney General some circumscribed discretion

-40-
over the ultimate decision of who is granted adjustment of status23

is not authorization for discretion in other areas.

We explain: one policy choice Congress made was to allow

(in some instances) aliens who were otherwise inadmissible on

arrival the opportunity to seek adjustment of status relief if they

met certain statutory criteria. See 8 U.S.C. § 1255. In 8 U.S.C.

§ 1182, Congress defines the classes of aliens who are ineligible

for visas or admission to the United States and makes various

exceptions from these blanket rules. See 8 U.S.C. § 1182(a).

Congress also allows for parole of these inadmissible aliens for

"urgent humanitarian reasons" or "significant public benefit." 8

U.S.C. § 1182(d)(5)(A). Congress specifically says parolees are

not considered admitted. Id. Despite their status as

inadmissible, Congress has also made the policy determination that

23
"If the word 'discretion' means anything in a statutory or
administrative grant of power, it means that the recipient must
exercise his authority according to his own understanding and
conscience." See Goncalves, 144 F.3d at 125 (quoting United States
ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954))
(internal quotation marks omitted)(alteration in Goncalves)
(emphasis added). This comports with a doctrine articulated by
Judge Jerome Frank in United States ex rel. Adel v. Shaughnessy,
183 F.2d 371 (2d Cir. 1950), that where Congress has granted an
agency discretion, courts may intervene when there has been "a
clear failure to exercise discretion" (as well as when that
discretion has been abused). Id. at 372. In later formulations,
courts have said that an agency’s "failure to . . . exercise its
discretion, when properly called upon to do so, is subject to
judicial review for arbitrariness and capriciousness." Wolfe v.
Marsh, 835 F.2d 354, 358 (D.C. Cir. 1987). Here, the Attorney
General must actually exercise his discretion to determine whether
the paroled individuals that Congress has deemed eligible for
adjustment of status should be granted this relief.

-41-
these paroled aliens should be eligible to apply for adjustment of

status, which essentially can act as an admission. 8 U.S.C. §

1255(a).

Section 1182 is integral to determinations made in

"inspection," which is provided for in 8 U.S.C. § 1225. All

arriving aliens and aliens who are present in the United States

without an inspection are "applicants for admission," 8 U.S.C. §

1225(a)(1), and they "shall be inspected." 8 U.S.C. § 1225(a)(3)

(emphasis added). Section 1225(b) provides for the inspection of

aliens arriving in the United States and certain other aliens who

have not been admitted or paroled. See 8 U.S.C. § 1225(b). If

aliens being inspected are not "clearly and beyond a doubt"

admissible, under section 1182, then they must be referred to

removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).

This context shows that Congress purposefully classified

paroled individuals as "inadmissible," and it also determined that

they should generally be placed in removal proceedings. But

Congress also explicitly allowed paroled individuals to adjust

status if they meet the other statutory requirements.

Further, the larger statutory scheme makes clear that in

the context of adjustment of status, Congress is particular about

where it grants "discretion" to the Attorney General. Congress has

specified the conditions under which an arriving alien (including

a paroled alien) is to be determined inadmissible and must be

-42-
placed in removal proceedings. The determination as to placing an

alien into removal is not a decision committed to agency discretion

by Congress. Rather, Congress has defined the terms for initiating

removal proceedings against arriving aliens in 8 U.S.C. §

1225(b)(2)(A), which provides that,

[I]n the case of an alien who is an applicant
for admission, if the examining immigration
officer determines that an alien seeking
admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be
detained for a [removal proceeding].

8 U.S.C. § 1225(b)(2)(A). Congress used the word "shall" to

mandate that an immigration officer who cannot determine that the

applicant for admission is clearly entitled to be admitted has no

choice but to place the alien in removal proceedings. After the

alien is placed in removal, the Attorney General may parole the

alien into the United States in some instances,24 but the alien

still must go through removal proceedings.25

24
The Attorney General's ability to parole arriving aliens,
both prior to removal proceedings and once the individual is placed
in removal proceedings, is also constrained. The Attorney General
can parole an alien applying for admission temporarily into the
United States "only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A).
The Attorney General has no authority to allow an individual to
remain in parole once the reasons for the initial parole are
exhausted. As soon as a determination that these reasons are
exhausted is made, the individual "shall forthwith return or be
returned to the custody" of the Service. 8 U.S.C. § 1182(d)(5)(A).
25
Indeed, where Congress has wanted to benefit aliens from
certain countries, it has enacted special legislation which allows
these individuals to enter the United States and apply for
permanent resident status within one year, without being subjected

-43-
 The incorrectness of the Attorney General's argument can

be seen by looking at one of its logical implications. The

Attorney General is also given discretion as to the ultimate

decision in determining whether to grant asylum to aliens who are

eligible for this relief. 8 U.S.C. § 1158(a); Cardoza-Fonseca, 480

U.S. at 443-44.26 If this grant of discretion meant what the

government argues here, it would be logical that the Attorney

General could similarly decline to allow asylum by issuing a

regulation that refused to process applications from categories of

asylum applicants.

to removal proceedings. See Cuban Adjustment Act of 1966, Pub. L.
No. 89-732, 80 Stat. 1161 (1966) (allowing Cuban parolees to adjust
status after one year of residence in the United States);
Lautenberg Amendment, Pub. L. No. 101-167, 103 Stat. 1263 (1990)
(allowing parolees from the former Soviet Union, Vietnam, Laos, or
Cambodia to adjust status after one year of residence in the United
States).
26
In Cardoza-Fonseca, the Attorney General argued that the
greater standard applicable to withholding of deportation--the
alien's life or freedom would be threatened--was also the standard
applicable to the grant of asylum because it was anomalous that the
standard for asylum, which affords greater benefits, would be less
burdensome than the standard for withholding of deportation.
Cardoza-Fonseca, 480 U.S. at 443. The Supreme Court distinguished
the two statutes to show why the Attorney General's argument was
misplaced. The Court explained that if an individual makes the
stronger showing and demonstrates that he is eligible for
withholding of deportation, that relief is automatic without any
discretion of the Attorney General. By contrast, if an individual
demonstrates the lesser well-founded fear standard to be
statutorily eligible for asylum, the relief was not automatic; it
was then up to the Attorney General to exercise his discretion as
to whether to grant the requested relief. Id. at 443-44.

-44-
 But that is not so. If the asylum applicant meets the

eligibility requirements –- if, in other words, the Attorney

General determines that an applicant for asylum establishes she has

"a well founded fear of persecution" on account of one of the

statutory grounds –- the alien must be allowed to apply. The

Attorney General may only exercise his discretion in granting the

asylum.27 8 U.S.C. § 1158(b); 8 U.S.C. § 1101(a)(42)(A).

Similarly, if the paroled adjustment of status applicant meets the

eligibility requirements, the Attorney General may exercise his

discretion only in the decision whether to grant permanent resident

status. In both asylum and adjustment of status, an alien who

satisfies the eligibility requirements to apply "does not have a

right to the [relief]," but he is "eligible" to apply for it.

Cardoza-Fonseca, 480 U.S. at 443-44 (emphasis removed).

Although the regulation, 8 C.F.R. § 245.1(c)(8), denying

adjustment of status to parolees in removal proceedings is itself

framed in terms of who is eligible to apply, the Attorney General

27
It is worth noting that the asylum statute as in force at the
time it was interpreted in Cardoza-Fonseca, is similar in wording
to the adjustment of status statute. The relevant provision in
1987 read:

[T]he alien may be granted asylum in the discretion of
the Attorney general if the Attorney General determines
that such alien is a refugee within the meaning of
section 1101(a)(42)(A) [the well-founded fear standard]
of this title.

Cardoza-Fonseca, 480 U.S. at 427 (quoting 8 U.S.C. § 1158(a)).

-45-
argues the regulation is simply a determination at the outset that

of the eligible parolees, the Attorney General will not exercise

its discretion favorably to those who are in removal proceedings.

The Attorney General relies on Lopez v. Davis, 531 U.S. 230 (2001),

for the proposition that categorically excluding otherwise eligible

individuals is an appropriate use of his discretion as to the

ultimate decision granted in 8 U.S.C. § 1255(a).

Lopez is distinguishable. In Lopez, the Supreme Court

upheld a regulation of the Bureau of Prisons (BOP), 28 C.F.R. §

550.58(a)(1)(vi)(B), which categorically denied early release to

prisoners whose current offense was a drug felony involving the

carrying, possession, or use of a firearm. See Lopez, 531 U.S. at

233. The relevant statute states, "The period a prisoner convicted

of a nonviolent offense remains in custody after successfully

completing a treatment program may be reduced by the [BOP], but

such reduction may not be more than one year from the term the

prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B). The

Supreme Court framed the question as whether "the Bureau has

discretion to delineate, as an additional category of ineligible

inmates, those whose current offense is a felony involving a

firearm." Lopez, 531 U.S. at 238. The Court answered this

question in the affirmative, agreeing with the BOP that "Congress

simply did not address how the Bureau should exercise its

discretion within the class of inmates who satisfy the statutory

-46-
prerequisites for early release." Id. at 239-40 (internal

quotation marks omitted). The Court noted:

Beyond instructing that the Bureau has
discretion to reduce the period of
imprisonment for a nonviolent offender who
successfully completes drug treatment,
Congress has not identified any further
circumstance in which the Bureau either must
grant the reduction, or is forbidden to do so.
In this familiar situation, where Congress has
enacted a law that does not answer "the
precise question at issue," all we must decide
is whether the Bureau, the agency empowered to
administer the early release program, has
filled the statutory gap "in a way that is
reasonable in light of the legislature's
revealed design."

Id. at 242 (emphasis added)(quoting Nations Bank of N.C., N.A. v.

Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995)). In the

face of congressional silence, the Court held that it was not

unreasonable for the BOP to exercise its discretion and exclude a

class of prisoners as ineligible for early release. Id. at 242-43.

By contrast, Congress has not been silent here. There

are differences in the two statutes. In the adjustment of status

statute here, Congress made numerous and explicit policy choices

about who is eligible for adjustment of status relief, who is

ineligible, and of those ineligible, who is nonetheless eligible

with certain application restrictions. See 8 U.S.C. § 1255(a)

(setting out basic eligibility requirements for adjustment of

status); 8 U.S.C. §§ 1255(c), (e) (limiting the eligibility of

otherwise eligible aliens); 8 U.S.C. § 1255(i) (allowing

-47-
eligibility to otherwise ineligible aliens). The statutory

immigration scheme also constrains the Attorney General's

discretion in several ways, including mandating when an arriving

alien must be placed in removal proceedings, 8 U.S.C. §

1225(b)(2)(A), limiting the discretion of the Attorney General to

parole aliens, 8 U.S.C. § 1182(d)(5), and denying the Attorney

General the ultimate discretion to adjust the status of some

otherwise eligible aliens, 8 U.S.C. § 1255(f). Lopez is a Chevron

step two case because of congressional silence; our case, however,

is a Chevron step one case because Congress has clearly spoken on

the issue of eligibility. We find the Attorney General's

regulation to be inconsistent with that congressional

determination. See Ragsdale v. Wolverine World Wide, Inc., 535

U.S. 81, 91 (2002).28

28
Our holding does not "preclude the [Attorney General] from
adopting a uniform set of criteria for consideration in evaluating
applications" for adjustment of status. Lopez, 531 U.S. at 249
(Stevens, J., dissenting). We agree that Congress's eligibility
determinations do not limit the considerations that "may guide the
Attorney General in exercising [his] discretion to determine who,
among those eligible, will be accorded grace." Lopez, 531 U.S. at
243 (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 31 (1996)
(internal quotation marks omitted)).
However, there is one important point: because eligibility is
explicit in this statute, the Attorney General cannot
categorically refuse to exercise discretion favorably for classes
deemed eligible by the statute. The agency cannot get in through
the back door of the relief stage what it cannot do at the
eligibility stage. This limitation is consistent with Yueh-Shaio
Yang, which did not involve the agency excluding a class of
otherwise eligible aliens. Lopez, 531 U.S. at 248 n.4 (Stevens,
J., dissenting). It involved the question of whether a
classification could be considered at all in the exercise of the

-48-
 From the language and structure of the statute alone, we

find the regulation to be inconsistent with the expressed intent of

Congress.29 Still, we do not lightly overturn regulations.

D. Legislative History

Questions have been raised about the appropriateness of

use of legislative history at stage one of the Chevron analysis.

See, e.g., Coke v. Long Island Care at Home, Ltd., 376 F.3d 118,

127 (2d Cir. 2004). In fact, the Supreme Court has often referred

to legislative history at stage one, most recently in Gen. Dynamics

Land Sys., Inc. v. Cline, 124 S. Ct. 1236, 1243 (2004), and in a

series of earlier cases. See FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (using "later [congressional] Acts"

which spoke "more specifically to the topic at hand" to determine

whether the statute evidenced a clear congressional intent in

Attorney General's ultimate discretion to grant relief from
deportation. Id. Perhaps whether the alien is in removal
proceedings could be a consideration in the weighing against the
favorable exercise of discretion, but it cannot be the basis of a
categorical exclusion.
29
The Attorney General also relies on INS v. Bagamasbad, 429
U.S. 24 (1976), to support his argument. There the IJ and BIA had,
without determining eligibility, relied on the petitioner's
misrepresentation to a consular office to deny adjustment of
status. The court of appeals concluded that a determination of
eligibility was required nonetheless. The Supreme Court reversed
the court of appeals on the ground that “[a]s a general rule[,]
courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach." Id.
at 25. The case does not provide much guidance here. Petitioner
argues only that Congress, by setting conditions for eligibility,
wished there to be case by case consideration. In Bagamasbad,
there was individualized consideration of the case.

-49-
Chevron step one); MCI Telecomms. v. AT&T, 512 U.S. 218, 232-33

(1994) (examining legislative histories of later enactments and

finding them inconclusive); Pauley, 501 U.S. at 697-99 (examining

the text of statute and legislative history to determine that

Congress intended to delegate to the agency broad policymaking

discretion); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.

633, 648-50 (1990) (using legislative history in Chevron step one

as another "traditional tool[] of statutory construction" to

conclude that the statute did not "evince a clear congressional

intent"); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 214 (1988)

(using legislative history as a check where statutory text is clear

that the Secretary had no authority); Japan Whaling Ass'n v. Am.

Cetacean Soc'y, 478 U.S. 221, 233-41 (1986) (examining legislative

history and determining that Congress has not directly spoken to

the issue).30

30
The most frequently cited source for a purported rule that
reference to legislative history is impermissible at stage one is
Justice Kennedy's statement, in a footnote, that the use of
legislative history in stage one is impermissible. See K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 293 n.4 (1988) (noting in the
first step of a Chevron inquiry that "any reference to legislative
history is in the first instance irrelevant"). However, Justice
Kennedy's analysis on this point did not command a majority; only
one other Justice joined. Id. And since the decision in K Mart
Corp., Justice Kennedy has joined the majority opinions in Pension
Benefit and Brown & Williamson Tobacco, both of which utilize
legislative history in the Chevron step one analysis. See Pension
Benefit Guar. Corp., 496 U.S. at 649-50; Brown & Williamson Tobacco
Corp., 529 U.S. at 133. The footnote in K Mart was never
authoritative.

-50-
 Our view is that where traditional doctrines of statutory

interpretation have permitted use of legislative history, its use

is permissible and even may be required at stage one of Chevron.

This appears to be the functional approach of some other circuits

as well. See Coke, 376 F.3d at 127 (using legislative history at

step one "without attaching primacy" to it); Am. Rivers v.

F.E.R.C., 201 F.3d 1186, 1196 & n.16 (9th Cir. 2000) (adhering to

the practice of considering legislative history in Chevron step

one).

Our approach encompasses the traditional rule that where

the plain text of the statute is unmistakably clear on its face,

there is no need to discuss legislative history. See Sutton v.

United Airlines, Inc., 527 U.S. 471, 481 (1999). Sutton, however,

does not go on to say that resort to legislative history is

impermissible where used as a check on the understanding of the

statute as viewed in light of its text and the statutory scheme as

a whole. Even the dissent in General Dynamics admits that

legislative history may confirm whether the plain text reading is

correct. Gen. Dynamics Land Sys., Inc., 124 S. Ct. at 1252

(Thomas, J., dissenting) ("Although the statute is clear, and hence

there is no need to delve into the legislative history, this

history merely confirms that the plain reading of the text is

correct."). Indeed, Justice Thomas's dissent (joined by Justice

Kennedy) itself considers legislative history. Id. at 1252-55; see

-51-
also Pension Benefit Guar. Corp., 496 U.S. at 649; Bowen, 488 U.S.

at 214 (using legislative history as a check where statutory text

is clear that the Secretary had no authority); Japan Whaling Ass'n,

478 U.S. at 233-41 (looking at legislative history to see whether

it contradicts implicit grant of authority to agency in statutory

text).

This circuit has used the approach of considering

legislative history in Chevron stage one analysis where appropriate

to discern and/or to confirm legislative intent. See Goldings v.

Winn, 383 F.3d 17, 21 (1st Cir. 2004) ("If the language of the

statute is plain and admits of no more than one meaning or if the

statute's legislative history reveals an unequivocal answer as to

the statute's meaning, we do not look to the interpretation that

may be given to the statute by the agency charged with its

enforcement") (emphasis added) (quoting Arnold v. United Parcel

Serv., Inc., 136 F.3d 854, 858 (1st Cir. 1998)); Arnold, 136 F.3d

at 858 (resorting to legislative history when the text of the

statute is not unambiguously clear); see also Strickland v. Comm'r,

Maine Dept. of Human Servs., 48 F.3d 12, 17, 20 (1st Cir. 1995)

(examining legislative history, "albeit skeptically," in Chevron

step one).

The perceived dangers of the use of legislative history

are particularly lessened where the legislative history is used as

a check on an understanding obtained from text and structure. As

-52-
we shall see, the legislative history, which is not disputed by the

respondent, seems to pose none of the problems of potential

manipulation of the system by members of Congress. See

Strickland, 48 F.3d at 17 n.3 (reciting the arguments of critics

that "legislative history is written by staffers rather than by

Congress itself; that it is easily manipulated; that it complicates

the tasks of execution and obedience; and that it often is shaped

by members of Congress who cannot achieve passage of a desired

interpretation in the actual text of an enacted statute").

In light of Supreme Court case law there is no reason to

think legislative history may not play other roles then simply

confirming a reading obtained by text and structure at stage one.31

Our use of the legislative history in that fashion is, we think,

unexceptional.

31
In fact, the Supreme Court has used legislative history in
different ways at stage one. It has used it merely to confirm
plain text reading. Pension Benefit Guar. Corp., 496 U.S. at 649;
Bowen, 488 U.S. at 214; Japan Whaling Ass'n, 478 U.S. at 233-41.
It has used legislative history to give content to specific
statutory terms said to have different textual meanings. Gen.
Dynamics Land Sys., Inc., 124 S. Ct. at 1244 (statutory term "age"
in ADEA refers to use of ADEA as a remedy for "unfair preference
based on relative youth"). In Brown & Williamson Tobacco Corp.,
the Supreme Court stressed that "a reviewing court should not
confine itself to examining a particular statutory provision in
isolation." 529 U.S. at 132. In addition to the requirement to
read the text in context and in light of its place in the overall
statutory scheme, the court also found permissible resort to "other
Acts, particularly where Congress has spoken subsequently and more
specifically to the topic at hand." Id. at 133. The court then
explored the legislative history of both the original and later
statutes. Id. at 144-55.

-53-
 We look to legislative history to check our understanding

and determine whether there is a clearly expressed intention by the

Congress which is contrary to the plain language of the statute.

See Cardoza-Fonseca, 480 U.S. at 432 & n.12. Petitioner argues

that the legislative history evidences Congress's intention to give

parolees, regardless of whether they were in removal proceedings,

the ability to adjust status and that this intention is consistent

with the goals Congress wanted to accomplish in enacting the

legislation.

The INA, enacted in 1952, allowed "[t]he status of an

alien who was lawfully admitted to the United States as a bona fide

nonimmigrant" to be adjusted to that of permanent resident alien if

the alien met certain other eligibility requirements. Pub. L. No.

414, 66 Stat. 163, 217 (1952).

The version of 8 U.S.C. § 1255(a) relevant to this case

was established in 1960, when Congress amended 8 U.S.C. § 1255 to

include paroled aliens as eligible for adjustment of status. Pub.

L. No. 86-648, 74 Stat. 504, 505 (1960). At the time the amendment

was passed, the statutory provision for the granting of parole to

certain inadmissible aliens was substantially similar to the

statute governing parole today.32

32
"The Attorney General may in his discretion parole into the
United States temporarily under such conditions as he may prescribe
for emergent reasons or for reasons deemed strictly in the public
interest any alien. . . ." INA, Pub. L. No. 414, 66 Stat. 188
(1952).

-54-
 The legislative history of the 1960 amendments is

explicit that Congress recognized numerous problems with the

process for adjustment of status under the 1952 law and believed

these problems were of serious concern. The Senate Report states:

The Administrative Operations in the
application of [the adjustment of status
provision], and other related features of the
General Immigration Law regarding adjustment
of status of aliens within the United States,
have been the subject of close scrutiny by the
Committees on the Judiciary of both the Senate
and the House of Representatives. For a
considerable period of time, there has
appeared to be a steadily mounting number of
cases in which aliens determined by the
Immigration and Naturalization Service to be
eligible for permanent residence in the United
States in accordance with all the applicable
provisions of the Immigration and Nationality
Act, had to comply with what appeared in those
cases to be an unnecessary procedure known as
preexamination and voluntary departure with a
view toward applying for an immigrant visa in
one of the U.S. Consular Offices in Canada.
During the Fiscal Year ending June 30, 1958,
more than 7,000 aliens in the United States
had their eligibility to enter as immigrants
determinated in this country prior to sending
them to Canada where they briefly appeared
before a U.S. consular officer, and then
returned to this country with an immigrant
visa.

In addition, the review of a
considerable number of private relief
immigration bills seeking adjustment of status
of nonimmigrants has further demonstrated to
the Committee the desirability of general
amendatory legislation on this subject.

S. Rep. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124,

3136.

-55-
 The Report states that Congress, in amending the

adjustment of status statute, wished to avoid a situation that,

not only necessitate[s] the reinstatement of
the fallacious procedure known as
'preexamination' and consisting of round trips
to Canada for the sole purpose of obtaining an
immigrant visa, but will certainly greatly
increase the number of private bills. The
Congress has repeatedly expressed its
disapproval of the 'preexamination' procedure
and has similarly expressed its
dissatisfaction with the mounting volume of
private legislation.

Id. at 3137.

In response to those problems, Congress in 1960 amended

the adjustment of status provision. The new provision read: "The

status of an alien, other than an alien crewman, who was inspected

and admitted or paroled into the United States may be adjusted . .

. to that of an alien lawfully admitted for permanent residence .

. . ." 74 Stat. at 505. This change broadened the category of

individuals eligible for adjustment of status relief. S. Rep. No.

86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3125.33

33
The 1960 legislation can be viewed as striking a balance --
while it broadened the number of aliens able to apply for
adjustment of status, it also defined the category of aliens
eligible so that only the deserving could be considered for the
relief. This structure comports with Congress's concern to allow
only worthy aliens the opportunity to apply for adjustment of
status. As the Senate Report states,

The language of the instant bill has been carefully drawn
so as not to grant undeserved benefits to the unworthy or
undesirable immigrant. This legislation will not benefit
the alien who has entered the United States in violation
of the law.

-56-
 In changing the system, Congress sought to ameliorate

three types of problems caused by the old system. Congress wished

to eliminate the burden on inspected and admitted or paroled aliens

and their American relatives of having to leave the United States

and apply from a consular office abroad (often from Canada).34 See

id. at 3137 ("Aliens eligible to benefit from this legislation .

. . would also save the expense of journeys to Canada, rather high

when consideration is given to the fact that many of the

prospective eligible immigrants live with their families in areas

rather remote from the U.S. Consular offices in Canada.").

Congress was also concerned with the costs to the

government of the then extant system, caused by the large number of

private bills presented to it for adjustment of status for named

S. Rep. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124,
3136. Congress mentioned that it believed that the legislation
would benefit mainly aliens "who[] are spouses of U.S. citizens, or
skilled specialists whose services are urgently needed in the
United States, or ministers of religious denominations, or members
of other general or special nonquota immigrant classes." Id. at
3137. Congress also specifically intended to benefit those
individuals who had been paroled into the country as refugees. Id.
at 3124.
34
The specific focus of Congress on these problems of who may
apply for adjustment of status and how also indicates that Congress
considered the matter to be important, and so did not leave it to
the agency. See Brown & Williamson Tobacco Corp., 529 U.S. at 159
(citing Justice Stephen Breyer, Judicial Review of Questions of Law
and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also
ask whether the legal question is an important one. Congress is
more likely to have focused upon, and answered, major questions,
while leaving interstitial matters to answer themselves in the
course of the statute's daily administration.")).

-57-
individuals. Congress had repeatedly expressed its

"dissatisfaction with the mounting volume of private legislation"

introduced to adjust the status of certain aliens. Id. at 3137.

By adopting the 1960 legislation, Congress wished to alleviate this

burden on itself. See id. at 3136. There is some evidence in the

legislative history that Congress wished also to alleviate the

burden imposed on consular offices to process applications for

adjustment of status. The Senate Report emphasizes that in fiscal

year 1958, alone, over 7,000 individuals had to leave the Untied

States and apply for a visa in Canada. Id. Indeed, the Department

of State commented on the legislation.

Finally, in expanding the group of individuals eligible

for adjustment of status, Congress clearly evaluated the

administrative inconvenience to the INS of the expanded category of

those eligible to apply for adjustment of status and nonetheless

altered the prior procedure. Indeed, the administrative burdens of

the various provisions involved were given "close scrutiny" by

Congress. Id.

The effect of the regulation before us, limiting the

ability of paroled aliens in removal proceedings to adjust status,

will predictably be to re-institute the very problems which

Congress attempted to eliminate in 1960. It forces paroled aliens

in removal proceedings to leave the country to apply for adjustment

of status. This imposes considerable burdens on the aliens and,

-58-
where applicable, their American spouses and relatives. The effect

of the regulation, predictably, will be to increase the number of

private bills seeking individual adjustment of status, thus

burdening Congress. It will also increase the burden on consular

offices abroad, because aliens who are otherwise available to

adjust status will now have to apply through the consular office.

The 1960 legislative history of 8 U.S.C. § 1255(a)

confirms and enhances our understanding of the statute.

E. Effect of IIRIRA

We consider briefly the arguments of both sides that rely

on later revisions to the INA, specifically IIRIRA, to support

their different understandings of what Congress meant in the

adjustment of status provisions of 8 U.S.C. § 1255. There is no

claim that section 1255(a) was amended by IIRIRA or any other

statute in any relevant way.

The Attorney General relies on provisions of IIRIRA to

argue that the original understanding of the statute in 1960 must

be altered in light of later law, and the statute must now be read

as introducing at least ambiguity into section 1255(a), despite the

fact that section 1255(a) itself was not amended. The Attorney

General argues that new regulations were required due to IIRIRA's

replacement of "entry" with "admission" as the criterion which

determines which of two sets of grounds of removal, 8 U.S.C. §

1882(a) or 8 U.S.C. § 1227, applies in removal proceedings.

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Further, the Attorney General argues, under 8 U.S.C. §

1182(d)(5)(A), a parole of an alien is not the admission of that

alien.

Our earlier analysis of the meaning of 8 U.S.C. § 1255(a)

in light of the statutory context takes into account the statutory

scheme as it exists under IIRIRA. The Attorney General's arguments

do not change this understanding; they are unpersuasive because

they do not concern the eligibility of paroled aliens to apply for

adjustment of status under section 1255(a) or in any way act to

limit the eligibility of paroled individuals –- a group Congress

specifically deemed eligible –- to adjust status. The

classification of paroled aliens as "not admitted" is not new to

the passage of IIRIRA and does not change the treatment of

parolees. Also, the reclassification of aliens "present pursuant

to an entry" to "applicants for admission" does not affect the

status of paroled aliens, who have always been considered

applicants for admission.

The petitioner relies on IIRIRA for two points.

Specifically, the petitioner argues that since 1960 the agency and

Congress have consistently understood the statute to be as

petitioner reads it. Moreover, in the major revisions of the

immigration laws since 1960, which largely restricted aliens'

efforts to remain in this country, Congress has never once

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restricted the ability of paroled aliens to apply for adjustment of

status.

This confirms our understanding of the clear meaning of

the statute.35 Consistent with our interpretation of the statute,

in our view, the changes to the statute with the passage of IIRIRA

work against the Attorney General's argument, not in favor of it.

Under IIRIRA and previous amendments, Congress amended section 1255

to limit the eligibility for adjustment of status so that certain

types of aliens may not apply. Historical & Statutory Notes, 1996

Amendments, 8 U.S.C.A. § 1255. Congress has directly addressed the

issue of eligibility for adjustment of status on several occasions,

yet these amendments did not limit the category of paroled aliens

who may apply for adjustment of status, and they neither gave the

Attorney General discretion to redefine eligibility nor did they

endorse the additional restrictions on eligibility contained in the

Attorney General's regulation. See Brown & Williamson Tobacco,

Corp., 529 U.S. at 137 (relying in part on later actions of

Congress which specifically address the regulation of tobacco as

35
When Congress speaks "subsequently and more specifically to
the topic at hand," this can shed light as to the meaning of the
statute. Brown & Williamson Tobacco Corp., 529 U.S. at 133; see
also Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330 (1988)
(When Congress has amended a statute in other ways, but not
addressed the specific issue in question, court can consider
congressional silence in the appropriate historical context and use
it as evidence of congressional intent not to abrogate well-
established doctrine.).

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evidence that the FDA did not have authority to regulate tobacco).

F. Reasonableness

Many of the Attorney General’s arguments go to the

reasonableness of the regulation. This is a Chevron step two

argument. But as previously explained, this is a Chevron step one

case, and even the Attorney General’s reasonable actions cannot

control in the face of clear contrary congressional intent.

Even where there is ambiguity, reasonableness is assessed

in light of the statutory scheme. For example, the Attorney

General justifies the regulation on the basis that the exercise of

discretion was consistent with Congress’s desire to speed up the

removal process through expedited removal proceedings. 62 Fed.

Reg. 444, 452 (Jan. 3, 1997). The desire for administrative

efficiency cannot displace clear congressional intent.

Also, the Attorney General argues he has a facially

legitimate and bona fide reason for the regulation, citing to the

Immigration Control and Financial Responsibility Act of 1996,36

which was intended to "increase control over immigration . . .

expediting the removal of excludable and deportable aliens,

especially criminal aliens, and reducing the abuse of parole and

36
The Immigration Control and Financial Responsibility Act of
1996, SB 1664, was passed by the Senate on May 2, 1996. It was
placed in conference with the House counterpart, and was the
predecessor of what became IIRIRA.

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asylum provisions."37 S. Rep. No. 104-249 at 2 (1994) (not reported

in U.S.C.C.A.N.). The short reply is that Congress did not, even

in 1996, give the Attorney General unfettered discretion to

expedite removal and reduce abuse of parole in disregard of the

statutory scheme. Congress expressly did not alter the basic

structure of eligibility for application for adjustment of status

while simultaneously making a limited category of parolees

ineligible. See Cardoza-Fonseca, 480 U.S. at 444-45 (noting the

agency cannot ignore Congress’s desired scheme in the asylum area).

Finally, the position that the Attorney General takes in

the 1997 regulation is inconsistent with the agency’s long-standing

previous practice. Arriving aliens in removal proceedings were

always able to adjust status before the district director prior to

the promulgation of the 1997 regulations. See In re Castro-Padron,

21 I. & N. Dec. 379 (BIA 1996). As noted in Cardoza-Fonseca, "An

additional reason for rejecting the [Attorney General's] request

for heightened deference to [his] position is the inconsistency of

the positions the [agency] has taken through the years. An agency

interpretation of a relevant provision which conflicts with the

agency's earlier interpretation is 'entitled to considerably less

37
Legislative history of subsequently enacted statutes "will
rarely override a reasonable interpretation of a statute that can
be gleaned from its language and legislative history prior to its
enactment." See Doe v. Chao, 124 S. Ct. 1204, 1212 (2004). An
expressed intent in the legislative history of a later more general
statute can not overcome the expressed intent in the statute
specifically in question.

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deference' than a consistently held agency view." Cardoza-Fonseca,

480 U.S. at 446 n.30 (quoting Watt v. Alaska, 451 U.S. 259, 273

(1981)). So even if there were ambiguity in section 1255(a), the

agency would be entitled to less than normal deference.

V.

We find the regulation, 8 C.F.R. § 245.1(c)(8), to be

invalid as inconsistent with 8 U.S.C. § 1255(a); accordingly we

vacate the removal order and remand the case to the BIA for

proceedings consistent with this opinion. So ordered.

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