United States Court of Appeals
For the First Circuit
No. 05-2886
ZAIDAN DAR-SALAMEH,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lynch, Circuit Judges,
and Woodcock,* District Judge.
Clive Rivers, with whom The Law Offices of Clive Rivers was on
brief, for petitioner.
Maritza González de Miranda, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Miguel A.
Fernandez, Assistant United States Attorney, were on brief, for
respondent.
November 15, 2006
*
Of the District of Maine, sitting by designation.
LYNCH, Circuit Judge. Petitioner Zaidan Dar-Salameh, a
native of Israel and a Palestinian Arab, challenges a final order
of removal on the ground that due process requires that he be given
a hearing at which to argue that his status was validly adjusted to
that of lawful permanent resident. He also argues that he should
be given the opportunity to apply for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT),
based on recent political conditions in the Palestinian
Territories. Dar-Salameh makes both arguments, however, in the
context of a challenge to his detention and order of removal,
having made no attempt to raise them before the Board of
Immigration Appeals (BIA) or an Immigration Judge (IJ). He failed
to invoke the process that was available to him and cannot now make
a complaint of constitutional dimension about a lack of due
process. We deny the petition, but accept the respondent's
agreement to permit Dar-Salameh to apply for relief from removal to
the Palestinian Territories.
I.
Dar-Salameh initially entered the United States on
November 15, 1988 on a tourist visa and was given permission to
remain in the United States until June 1989. On May 3, 1989, he
married Hazel Tatum, then a permanent resident of the United
States, who became a United States citizen in 1993. On June 9,
1989, Dar-Salameh's wife filed a Petition for Alien Relative, Form
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I-130, seeking a visa for him. That petition was approved on July
21, 1989.
Sometime in November 1991, Dar-Salameh left the United
States and applied to have his status adjusted to permanent
resident on the basis of the approved I-130 petition. This process
took a few months, apparently because the officer at the consulate
at which he applied had doubts about the bona fides of his
marriage. On or about January 15, 1992, while his application was
still pending, Dar-Salameh paid to be smuggled back into the United
States; he claimed that he was desperate to rejoin his wife, who
had just given birth to their first child on November 16, 1991.
On February 4, 1992, Dar-Salameh presented himself at the
offices of the Immigration and Naturalization Service (INS),1
apparently in an attempt to secure a work permit. He was then
detained, charged with deportability based on his entry without
inspection, and released on a $1,000 bond. On April 28, 1992, Dar-
Salameh appeared at a telephonic hearing before an IJ, at which he
conceded deportability. He and the government agreed to voluntary
departure within six months, and the IJ accordingly entered an
order granting Dar-Salameh voluntary departure until October 28,
1992, with an alternate order of deportation to Jordan if he failed
1
The Homeland Security Act of 2002, Pub. L. No. 107-296,
§ 471(a), 116 Stat. 2135, 2205 (codified as amended at 6 U.S.C.
§ 291(a)), eliminated the INS and transferred its duties to the
Department of Homeland Security. For simplicity, we refer to the
agency throughout as the INS.
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to depart by the deadline. The deadline was later extended to
January 28, 1993, but Dar-Salameh remained in the United States
beyond that date.
On November 8, 1993, Dar-Salameh's wife filed a second
I-130 petition. On this petition, Dar-Salameh's last entry into
the United States was erroneously noted as "Visitor" on "Nov. 15,
1988," although the petition did note that he had been in
immigration proceedings in "St. Thomas, V.I." on "4-28-91." (The
year should have been noted as "92.") This petition was approved
on March 30, 1994. Subsequently, Dar-Salameh filed an Application
to Adjust Status, Form I-485, directly with the INS field office.
On this application, he again misstated that his last entry was as
a "Visitor" on "Nov. 15, 1988," and moreover, he answered "No" in
response to the question "Have you ever been deported from the
U.S., or removed from the U.S. at government expense, excluded
within the past year, or are you now in exclusion or deportation
proceedings?" The adjustment of status to permanent resident,
based on this application with misrepresentations, was granted on
August 17, 1995.
On November 2, 1995, the INS issued a Notice of Intent to
Rescind Dar-Salameh's adjustment of status. The Notice alleged
that he had failed to disclose his prior immigration record, and
that because he had not departed in accordance with the voluntary
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departure order entered in 1992, he had not been eligible for the
adjustment at the time when it was granted.
On September 2, 1999, Dar-Salameh appeared at a hearing
before an IJ on the rescission charge. He testified that he had
not been told that he had to leave the United States by October
1992, nor had he been told of any consequences of his continued
presence in the United States, notwithstanding his apparent
agreement to voluntary departure and the issuance of the 1992
order.
He also testified that he had understood the question
about whether he had ever been deported to mean whether he had ever
been physically removed from the United States. The IJ made no
explicit credibility findings, although he did appear to at least
partially credit Dar-Salameh's testimony in noting,
It appears that [Dar-Salameh] failed to
indicate the correct date, time and manner of
his last entry into the United States, because
he did not understand the question and because
the application, Form I-485, was not
specifically prepared by him, rather by a
forms preparer, as a result of [his] lack of
knowledge of the English language.
However, the IJ also stated that Section 245 of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1255, the section under which
Dar-Salameh's status had been adjusted, applied to "an alien who
was inspected and admitted or paroled into the United States."
Because Dar-Salameh had entered without inspection, the IJ found
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that he was and had been ineligible for adjustment under Section
245 and accordingly ordered the adjustment rescinded.
On appeal to the BIA, Dar-Salameh argued that although
Section 245(a) applied to "an alien who was inspected," 8 U.S.C.
§ 1255(a), Section 245(i) permitted adjustment of status for "an
alien physically present in the United States . . . who . . .
entered the United States without inspection," 8 U.S.C. § 1255(i),
and Section 245(i) was in force at the time that Dar-Salameh
applied for adjustment. He also continued to argue that his
failure to depart was no bar to adjustment because he had not been
given sufficient notice of either the requirement to depart or the
consequences of remaining in the United States.
On July 16, 2001, the BIA affirmed the IJ's order,
finding that even if Dar-Salameh could have adjusted his status
under Section 245(i), nonetheless his failure to disclose that his
entry had been without inspection and to pay the required penalty
fee associated with Section 245(i) meant that he had not validly
applied under that provision. The BIA declined to reach Dar-
Salameh's arguments about notice.
Dar-Salameh alleges that in the meanwhile, he and his
wife filed new I-130 and I-485 petitions with the INS field office
on April 25, 2001. In these petitions, he disclosed both his entry
without inspection and the prior immigration proceedings; he also
paid the penalty fee. He claims that the INS approved the
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adjustment of status on February 18, 2002, as evidenced by an I-94
stamp. It appears he made no further efforts with regard to his
prior immigration proceedings.
In February 2005, the INS proceeded to execute the
deportation order that resulted from Dar-Salameh's failure to
depart the country in 1993, and he was arrested and detained at the
San Juan Metropolitan Detention Center. Although the original
deportation order had specified Jordan as the country of removal,
Jordan refused to recognize Dar-Salameh as a Jordanian citizen and
denied him entry. Israel granted approval for him to be removed to
the Palestinian Territories, and so Israel became the country of
removal.
On March 23, 2005, Dar-Salameh filed a petition for
habeas corpus in the U.S. District Court for the District of Puerto
Rico, arguing that he was entitled to a hearing before he could be
deported. In May 2005, the REAL ID Act of 2005, Pub. L. No. 109-
13, 119 Stat. 231, was enacted. As a result, the district court
lost jurisdiction over the habeas petition and, on December 8,
2005, transferred the case to this court as a petition for review
of a final order of removal. See id. § 106(c), 8 U.S.C. § 1252
note; see also Enwonwu v. Gonzales, 438 F.3d 22, 31-32 (1st Cir.
2006). On April 3, 2006, this court entered a stay of removal
until further order of the court.
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II.
In this court, Dar-Salameh continues to argue that before
he can be deported, he is entitled to a hearing on the issue of
whether his status was validly adjusted to that of lawful permanent
resident in February 2002, and that the denial of such a hearing
constitutes a violation of due process. He also argues that he
should be permitted to apply for asylum, withholding of removal,
and protection under the CAT, based on recent changes in the
political conditions in the Palestinian Territories, specifically
Hamas's control of the government since January 2006.
As to the first argument, Dar-Salameh is essentially
complaining that he has been denied an opportunity to invoke his
purported status as permanent resident, a status he claims
ultimately based on his bona fide marriage to a U.S. citizen. Cf.
Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997) (noting the due
process right of "a meaningful opportunity to be heard"). The
relevant procedure for invoking such a status is outlined in
8 C.F.R. § 1245.2(a)(1)(i), which provides that "[i]n the case of
any alien who has been placed in deportation proceedings or in
removal proceedings (other than as an arriving alien), the
immigration judge hearing the proceeding has exclusive jurisdiction
to adjudicate any application for adjustment of status the alien
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may file."2 Id. (emphasis added); see also Prado v. Reno, 198 F.3d
286, 289 (1st Cir. 1999). Dar-Salameh failed to bring his claim in
the correct place: he did not move to reopen before the IJ.
Dar-Salameh's attempts to adjust his status occurred
after he was placed in deportation proceedings and were not made
within those proceedings. Thus, he could not have obtained a valid
adjustment of status, and he cannot demonstrate any prejudice from
the government's failure to grant him a hearing on that status.
See Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004) ("It is
beyond peradventure that before a petitioner in an immigration case
may advance a procedural due process claim, he must allege some
cognizable prejudice fairly attributable to the challenged
process.").
Moreover, Dar-Salameh made no attempt to reopen his
removal proceedings so as to be able to apply for adjustment of
status within those proceedings, and he is now challenging the
execution of the deportation order that resulted from those
proceedings. Thus, Dar-Salameh's challenge is effectively to the
2
8 C.F.R. § 1245.2(a)(1) (and a parallel regulation at
8 C.F.R. § 245.2(a)(1)) has been amended repeatedly since 1992,
most recently on May 12, 2006, but none of these changes relate to
the points made here. As of April 2001, when Dar-Salameh last
applied for an adjustment of status, 8 C.F.R. § 245.2(a)(1)
provided that "[a]fter an alien, other than an arriving alien, is
in deportation or removal proceedings, his or her application for
adjustment of status under section 245 of the [INA] . . . shall be
made and considered only in those proceedings." Id. (emphasis
added).
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INS's failure to reopen the proceedings sua sponte to allow him to
argue that his status precludes the execution of the deportation
order. Even apart from the merits of the underlying argument,
there is no cognizable due process claim in the INS's failure here
to act unprompted.
Admittedly, at this point, any motion to reopen the 1992
proceedings on that basis would be untimely. See 8 C.F.R.
§ 1003.23(b)(1) ("A motion to reopen must be filed within 90 days
of the date of entry of a final administrative order of removal,
deportation, or exclusion, or on or before September 30, 1996,
whichever is later."). Due process is not offended, however, by
the setting and enforcing of time limits within which aliens must
act. See Prado, 198 F.3d at 292-93.
Finally, to the extent that Dar-Salameh's challenge is to
the requirement that he adjust his status within his immigration
removal proceedings, we note that the facts of this case amply
demonstrate the rationale for such a process. Misunderstandings
can result if an alien successfully obtains a grant of adjustment
of status and is simultaneously subject to a valid deportation
order. Consolidating those actions into a single overall
proceeding helps to avoid those misunderstandings.
At root, Dar-Salameh wants this court to make exceptions
to the rules based on the equities of his situation. Whatever the
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potential discretion of the Attorney General in this matter, we
have none here. Cf. id.
Dar-Salameh's second argument -- based on changed country
conditions in the Palestinian Territories -- fails for a similar
reason. Once again, although Dar-Salameh wants to apply for asylum
and other relief, he has come to this court without making an
attempt to reopen his proceedings for the purpose of filing such an
application. Thus, there is no due process violation in the INS's
failure to have considered such an application. Moreover, Dar-
Salameh's failure to pursue a motion to reopen is a failure to
exhaust his administrative remedies, and we therefore lack
jurisdiction over this claim. See Boakai v. Gonzales, 447 F.3d 1,
4 (1st Cir. 2006).
That Dar-Salameh's changed country conditions argument is
not before us is not the end of the matter, however. We note that
the regulations provide an exception to the deadline for filing a
motion to reopen
if the basis of the motion is to apply for
asylum . . . or withholding of removal . . .
or withholding of removal under the Convention
Against Torture, and is based on changed
country conditions arising in the country of
nationality or the country to which removal
has been ordered, if such evidence is material
and was not available and could not have been
discovered or presented at the previous
proceeding.
8 C.F.R. § 1003.23(b)(4)(i). It appears that the mere passage of
time after a removal order becomes final is not itself a bar to a
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motion to reopen based on changed country conditions. See, e.g.,
Guo v. Gonzales, 463 F.3d 109, 111, 114-15 (2d Cir. 2006); Filja v.
Gonzales, 447 F.3d 241, 251-54 & n.4 (3d Cir. 2006); In re A-N–,
22 I. & N. Dec. 953, 956 (BIA 1999). At oral argument, the
respondent stated, upon inquiry from the court, its consent to Dar-
Salameh's at least filing an application for withholding of removal
for consideration by the Department of Homeland Security. Inherent
in that consent, we believe, was a consent to the continuation of
the stay of deportation for 60 days to permit Dar-Salameh to file
a motion to reopen under 8 C.F.R. § 1003.23(b)(4)(i).
The petition for review is denied and the stay of
deportation is extended, by agreement, for 60 days. So ordered.
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