In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1863
PELIVAN CETA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A76-785-760
____________
ARGUED MAY 30, 2008—DECIDED JULY 25, 2008
____________
Before BAUER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Pelivan Ceta, a citizen of Albania,
conceded removability at his most recent hearing with
an immigration judge (“IJ”), and he attempted to apply
for adjustment of status based on his marriage to an
American citizen. Alternatively, Mr. Ceta requested
termination of the proceedings without prejudice or a
continuance pending the approval of his Petition for Alien
Relative (“I-130”). The IJ concluded that Mr. Ceta was
categorically ineligible under a then-existing regulation
to apply for adjustment of status, and therefore the IJ
2 No. 07-1863
also denied Mr. Ceta’s request for termination or a con-
tinuance.
Mr. Ceta then appealed the decision of the IJ to the Board
of Immigration Appeals (“Board” or “BIA”) and submitted
an approved I-130. While Mr. Ceta’s appeal was pending,
the regulation that categorically had prevented him from
eligibility for adjustment of status was repealed. In a brief,
per curiam order, the BIA explained that, because of the
regulatory change, Mr. Ceta now was eligible to apply
for adjustment, but he had to pursue his adjustment
application with the United States Citizenship and Immi-
gration Service (“USCIS”). The Board therefore affirmed
the IJ’s decision that the IJ did not have jurisdiction to
consider the adjustment application. The BIA also affirmed
the IJ’s denial of Mr. Ceta’s request for termination or a
continuance.
Mr. Ceta now petitions for review of the decision of the
BIA denying his application for adjustment of status and
his motion for termination of the proceedings or a con-
tinuance. For the reasons set forth in this opinion, we
grant Mr. Ceta’s petition for review.
I
BACKGROUND
Mr. Ceta, a citizen of Albania, arrived at Chicago’s
O’Hare International Airport in 1998 and immediately
requested asylum or withholding of removal on the ground
that he had been persecuted in Albania for supporting
the Democratic Party. The immigration authorities ulti-
mately charged Mr. Ceta as removable on the alternative
grounds that he (1) had attempted to gain entry into the
No. 07-1863 3
United States by fraudulently or willfully misrepresenting
a material fact1; (2) did not have a valid, unexpired immi-
grant visa2; (3) did not have a valid passport3; and
(4) did not have a valid non-immigrant visa.4 Mr. Ceta
conceded removability under charges (2) and (4) because
he did not have a valid visa of any kind; nevertheless, he
denied attempting to enter the United States by means of
a fraudulent or willful misrepresentation and also denied
not being in possession of a valid passport.
After a hearing, an IJ found that Mr. Ceta was not
credible and that he was removable on each of the four
different grounds, including that he had tried to enter
the United States by using a fraudulent passport. The IJ
also denied Mr. Ceta’s request for asylum. Mr. Ceta
appealed. The BIA subsequently concluded that the IJ’s
adverse credibility determination was not sustainable,
but it nonetheless upheld the denial of relief and the
finding of a fraudulent or willful misrepresentation.
In his petition for review to this court, Mr. Ceta chal-
lenged both determinations. Although we sustained
the denial of Mr. Ceta’s asylum application, we over-
turned the determination of removability for attempting
to gain entry through fraud or willful misrepresentation.
See Ceta v. Ashcroft, No. 03-3066, 117 Fed. App’x 478
(7th Cir. 2004) (unpublished). We remanded the case to the
BIA, which, in turn, remanded to the IJ.
1
See Immigration and Nationality Act § 212(a)(6)(C)(i) (codified
at 8 U.S.C. § 1182(a)(6)(C)(i)).
2
See id. § 212(a)(7)(A)(i)(I).
3
See id. § 212(a)(7)(B)(i)(I).
4
See id. § 212(a)(7)(B)(i)(II).
4 No. 07-1863
On October 27, 2005, Mr. Ceta appeared before the IJ, and
he conceded that he was inadmissible. Mr. Ceta then
attempted to file for adjustment of status, pursuant to
8 U.S.C. § 1255, based on his marriage to an American
citizen. Mr. Ceta recognized that a then-existing regula-
tion, 8 C.F.R. § 1245.1(c)(8) (2004) [the “regulation”],5
categorically prohibited him from applying for adjust-
ment of status. This regulation provided that “[a]ny alien
who seeks to adjust status based upon a marriage
which occurred on or after November 10, 1986, and while
the alien was in exclusion, deportation, or removal pro-
ceedings” was “ineligible to apply for adjustment of
status to that of lawful permanent resident under sec-
tion 245 of the Act.” 8 C.F.R. § 1245.1(c)(8). Mr. Ceta
argued that this regulation was inconsistent with the
Immigration and Nationality Act (“INA” or the “Act”). In
support of this argument, Mr. Ceta relied on Succar v.
Ashcroft, 394 F.3d 8 (1st Cir. 2005), and Bona v. Gonzales, 425
F.3d 663 (9th Cir. 2005), which had struck down the
regulation as inconsistent with the Act. Alternatively,
Mr. Ceta requested that the IJ terminate the proceedings
without prejudice or grant him a continuance to give him
5
8 C.F.R. § 1245.1(c)(8) was a regulation governing the Execu-
tive Office for Immigration Review (“EOIR”), which includes
the immigration courts and the Board of Immigration Appeals
(“BIA”). There was an identical provision, 8 C.F.R. § 245.1(c)(8),
a Department of Homeland Security (“DHS”) regulation, which
applied to all immigration agencies within the DHS. Under the
Homeland Security Act of 2002, all of the responsibilities of the
former Immigration and Naturalization Service were transferred
to the DHS. 6 U.S.C. §§ 275, 291, 521. The Homeland Security
Act, nevertheless, retained the EOIR under the authority of the
Department of Justice. 8 U.S.C. § 1103(a), (g).
No. 07-1863 5
time to pursue his I-130.6 The Department of Homeland
Security (“DHS”) opposed Mr. Ceta’s application on the
ground that the regulation, which was valid under
Seventh Circuit precedent, categorically denied arriving
aliens, such as Mr. Ceta, eligibility for adjustment of
status. The DHS further submitted that the IJ did not
have jurisdiction to consider arguments about the
validity of this regulation.
The IJ determined that the regulation conclusively
established that Mr. Ceta was ineligible to apply for
adjustment of status. Although Mr. Ceta contended that
the regulation was contrary to the Act, the IJ determined
that he did not have jurisdiction to consider such an
argument. The IJ also denied Mr. Ceta’s request for termi-
nation without prejudice or a continuance on the ground
that Mr. Ceta “was not eligible for adjustment of status
before the Immigration Court.” A.R. at 44.
Mr. Ceta appealed the IJ’s decision to the BIA. While
Mr. Ceta’s appeal was pending but before he filed his
brief with the Board, the Secretary of Homeland Security
(the “Secretary”) and the Attorney General issued an
Interim Rule amending the regulation that had made
arriving aliens, such as Mr. Ceta, categorically ineligible
for adjustment of status. See Eligibility of Arriving Aliens in
Removal Proceedings to Apply for Adjustment of Status and
Jurisdiction to Adjudicate Applications for Adjustment of
6
There was a considerable amount of confusion during this
hearing before the IJ because Mr. Ceta was being represented by
new counsel. At the time of this hearing, in fact, Mr. Ceta’s
Petition for Alien Relative (“I-130”) already had been approved
for over three years. A.R. at 14. (I-130 approval notice dated
January 9, 2002).
6 No. 07-1863
Status, 71 Fed. Reg. 27,585 (May 12, 2006) [hereinafter
Interim Rule Notice]. The Interim Rule Notice recognized that
four courts of appeals had struck down 8 C.F.R.
§ 1245.1(c)(8) as inconsistent with INA § 245(a), 8 U.S.C.
§ 1255(a),7 and it stated that the Interim Rule was intended
7
See Scheerer v. U.S. Attorney Gen., 445 F.3d 1311, 1322 (11th Cir.
2006); Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir. 2005); Zheng
v. Gonzales, 422 F.3d 98, 119-20 (3d Cir. 2005); Succar v. Ashcroft,
394 F.3d 8, 13 (1st Cir. 2005). The First and Ninth Circuits
observed that Congress, in enacting the INA, carefully and
unambiguously had defined by statute the categories of aliens
eligible to apply, in the first instance, for adjustment of status.
Among those categories of aliens are parolees; parolees, as a
matter of course, almost always are placed in removal proceed-
ings. Therefore, the repealed regulation, 8 C.F.R. § 1245.1(c)(8),
which excluded all parolees placed in removal proceedings from
eligibility for adjustment of status, was contrary to Congress’
clearly expressed intent and failed the first step of the Chevron
analysis. Bona, 425 F.3d at 668-71; Succar, 394 F.3d at 24-30.
The Third and Eleventh Circuits also held the regulation
invalid, but they did so under Chevron’s second step. These
courts found that section 1255(a) was ambiguous with respect to
the Attorney General’s ability to regulate eligibility for adjust-
ment of status. These courts, nevertheless, held that the regula-
tion was an unreasonable construction of the statute. Because
Congress intended for virtually all parolees to be placed in
removal proceedings and because section 1255(a) indicates that
parolees, as a class, are eligible to apply for adjustment of status,
the Attorney General could not make parolees placed in removal
proceedings, as a class, ineligible for adjustment of status.
Scheerer, 445 F.3d at 1318-22; Zheng, 422 F.3d at 117-20.
In contrast, the Fifth and Eighth Circuits upheld 8 C.F.R.
§ 1245.1(c)(8). Akhtar v. Gonzalez, 450 F.3d 587 (5th Cir. 2006);
(continued...)
No. 07-1863 7
to resolve the inter-circuit conflict. The Interim Rule,
accordingly, repealed 8 C.F.R. § 1245.1(c)(8) and substi-
tuted 8 C.F.R. § 1245.2(a)(1)(ii)8 [hereinafter “amended
regulation”]. The amended regulation provides that an IJ
generally does not have jurisdiction to adjudicate an
application for adjustment of status filed by an arriving
alien in removal proceedings.9 8 C.F.R. § 1245.2(a)(1)(ii).
These aliens, instead, must file their application for ad-
justment of status with the USCIS, independent of the
removal proceedings. 8 C.F.R. § 245(a)(1). The amended
regulation is applicable to all cases pending on administra-
tive or judicial review on or after May 12, 2006. Interim Rule
Notice, 71 Fed. Reg. at 27,588. The notice also explained that
7
(...continued)
Mouelle v. Gonzalez, 416 F.3d 923, 930 (8th Cir. 2005), vacated 548
U.S. 901 (U.S. June 26, 2006) (granting certiorari, vacating and
remanding for consideration in light of the amended regulation).
8
The Interim Rule also repealed 8 C.F.R. § 245.1(c)(8) and
substituted 8 C.F.R. § 245.2(a). Eligibility of Arriving Aliens in
Removal Proceedings to Apply for Adjustment of Status and Jurisdic-
tion to Adjudicate Applications for Adjustment of Status, 71 Fed.
Reg. 27,585 (May 12, 2006) [hereinafter Interim Rule Notice].
Under the Interim Rule, section 245.2(a)(1) focuses on the
jurisdiction of the USCIS, while section 1245.2(a)(1) sets forth
the authority of IJs. Interim Rule Notice, 71 Fed. Reg. at 27,588
n.2; see also, supra, note 5.
9
Under limited circumstances, an IJ does have jurisdiction to
consider such an application. These circumstances involve aliens
who previously filed adjustment applications, departed and
returned to the United States under advance parole and subse-
quently were placed in removal proceedings. See 8 C.F.R.
§ 1245.2(a)(1)(ii).
8 No. 07-1863
[w]hile . . . it will ordinarily be appropriate for an
immigration judge to exercise his or her discretion
favorably to grant a continuance or motion to reopen
in the case of an alien who has submitted a prima
facie approvable visa petition and adjustment ap-
plication in the course of a deportation hearing, the
BIA has recognized that this is not an inflexible rule
and that an immigration judge has discretion in an
appropriate case to deny a continuance even if the
alien is the beneficiary of a visa petition or labor
certification that, if approved, could render the alien
eligible for adjustment of status.
Id. at 27,589 (citing Matter of Garcia, 16 I. & N. Dec. 653, 657
(BIA 1978)). The Secretary and Attorney General then
explained that their respective agencies were soliciting
comments “on the standards for the granting of continu-
ances to arriving aliens in removal proceedings while
applications for adjustment of status are pending with
USCIS.” Id.
In his brief before the Board, Mr. Ceta attached a
notice showing that his I-130 had been approved as of
January 9, 2002. Relying on the decisions of the courts of
appeals that had struck down the former regulation,10
Mr. Ceta contended that the amended regulation was
inconsistent with INA § 245(a), 8 U.S.C. § 1255(a), because,
as applied to his case, it achieved precisely the same result
as the former regulation; that is, he was prevented from
applying for adjustment of status. Mr. Ceta also argued
that the IJ erred in failing to terminate the proceedings
without prejudice or to grant him a continuance. The DHS,
10
For an explanation of these decisions, see, supra, note 7.
No. 07-1863 9
without mentioning the amended regulation, opposed
Mr. Ceta’s appeal, arguing that the IJ had concluded
correctly that Mr. Ceta, as an arriving alien, was ineligible
to apply for adjustment of status, and, on that basis, the
IJ also had correctly denied his motion for termination or
a continuance.
In a brief, per curiam order, the BIA affirmed the IJ’s
decision in all respects. The Board explained that the
amended regulation provided that IJs generally do not
have jurisdiction to adjudicate an application for adjust-
ment of status filed by an arriving alien in removal pro-
ceedings and that the limited exception to this general rule
was inapplicable in Mr. Ceta’s case. A.R. at 2 (citing
8 C.F.R. § 1245.2(a)(1)(ii)). The BIA, however, did not
discuss the Interim Rule Notice issued with the amended
regulation, in which the Secretary and Attorney General
explained that “it will ordinarily be appropriate for an
immigration judge to exercise his or her discretion favor-
ably to grant a continuance . . . in the case of an alien who
has submitted a prima facie approvable visa petition and
adjustment application in the course of a deportation
hearing.” See Interim Rule Notice, 71 Fed. Reg. at 27,589-90.
Nonetheless, the Board did note that, under the amended
regulation, Mr. Ceta must pursue any application for
adjustment of status with the USCIS independent of the
removal proceedings. “Based on this determination,” the
Board concluded, “we find no error in the Immigration
Judge’s denial of [Mr. Ceta’s] motion for a continuance or
the Immigration Judge’s denial of [Mr. Ceta’s] request
for termination of the proceedings.” A.R. at 3. The Board
dismissed Mr. Ceta’s appeal.
Mr. Ceta timely petitions for review of the BIA’s deci-
sion. On April 21, 2008, Mr. Ceta filed in this court an
10 No. 07-1863
emergency motion for a stay of removal, which the Gov-
ernment opposed. That same day, we issued a temporary
stay of removal pending resolution of Mr. Ceta’s motion.
On May 16, this court issued an order directing that
Mr. Ceta’s emergency motion be taken up with the case
for determination by the merits panel and further di-
recting that the temporary stay would remain in effect
until the court orders otherwise. On June 4, 2008, we
continued the stay of Mr. Ceta’s removal pending our
final resolution of the case.
II
DISCUSSION
Mr. Ceta challenges the BIA’s decision on two grounds,
which really are two sides of the same coin. First, he
claims that the amended regulation, as applied by the IJ
and BIA here, is inconsistent with INA § 245(a), 8 U.S.C.
§ 1255(a). In support of this contention, Mr. Ceta adopts
the reasoning articulated by the four courts of appeals
that struck down the now-repealed regulation.11 Essen-
tially, Mr. Ceta contends that the amended regulation, as
applied in his case, achieves precisely the same result
that these courts found to conflict with the Act. Second,
Mr. Ceta submits that the IJ—and, by affirming the IJ’s
decision, the BIA—erred in denying his motion for a
continuance. The denial of his motion for a continu-
ance, Mr. Ceta contends, effectively denies him the
ability to apply for adjustment of status before the USCIS.
11
See Scheerer, 445 F.3d at 1322; Bona, 425 F.3d at 670-71; Zheng,
422 F.3d at 119-20; Succar, 394 F.3d at 13. For a synopsis of these
cases, see, supra, note 7.
No. 07-1863 11
The Government claims that we do not have jurisdic-
tion over the case because Mr. Ceta has failed to exhaust
his administrative remedies. Additionally, the Govern-
ment contends that we do not have jurisdiction to con-
sider the IJ’s denial of Mr. Ceta’s request for a continu-
ance. As authority for this assertion, the Government
invokes the door-closing statute, 8 U.S.C. § 1252(a)(2)(B),12
and our recent decision in Ali v. Gonzalez, 502 F.3d 659, 663
(7th Cir. 2007). The Government also opposes Mr. Ceta’s
claim that the amended regulation conflicts with the INA;
it notes that two circuits have approved of and applied
that regulation. See Scheerer v. U.S. Attorney Gen., 513 F.3d
1244, 1251 (11th Cir. 2008) [hereinafter Scheerer II]; Brito v.
Mukasey, 521 F.3d 160, 168 (2d Cir. 2008) (acknowledging
Succar, noting that the Attorney General and the Secretary
had sought to resolve the circuit split by amending the
regulation, and applying the amended regulation with-
out questioning its validity).
12
The door-closing statute, entitled “[d]enials of discretionary
relief,” provides, in relevant part:
Notwithstanding any other provision of law . . . no court
shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any
other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security,
other than the granting of relief under section 1158(a) of this
title.
8 U.S.C. § 1252(a)(2)(B).
12 No. 07-1863
A.
1.
We begin with the Government’s contention that we
do not have jurisdiction to consider Mr. Ceta’s argument
that the IJ improperly denied his motion for a continu-
ance. Under the door-closing statute, 8 U.S.C.
§ 1252(a)(2)(B), and our interpretation of that statute,
Ali, 502 F.3d at 663, the Government contends, this court
does not have jurisdiction to consider the IJ’s refusal to
continue Mr. Ceta’s removal proceedings.
The door-closing statute, entitled “[d]enials of discre-
tionary relief,” provides, in relevant part: “Notwithstand-
ing any other provision of law . . . no court shall have
jurisdiction to review . . . any other decision or action of
the Attorney General or the Secretary of Homeland Secu-
rity the authority for which is specified under this
subchapter to be in the discretion of the Attorney General
or the Secretary of Homeland Security, other than the
granting of relief under section 1158(a) of this title.” 8
U.S.C. § 1252(a)(2)(B)(ii). In Ali, we interpreted this
statute to strip this court of jurisdiction to consider an IJ’s
refusal to continue removal proceedings. Ali, 502 F.3d at
663-64. As the Government acknowledges, however, our
precedent specifically recognizes that the door-closing
statute does not operate as a bar to judicial review
where the decision to deny a motion for a continuance
has the “effect of nullifying the statutory opportunity to
adjust status.” Id. at 665 (citing Subhan v. Ashcroft, 383
F.3d 591 (7th Cir. 2004)). Indeed, since our decision in Ali,
we consistently have preserved the Subhan exception and
its applicability in determining whether we have jurisdic-
tion to review the denial of a motion for a continuance. See,
No. 07-1863 13
e.g., Wood v. Mukasey, 516 F.3d 564, 568 (7th Cir. 2008).13
In Subhan, we concluded that, despite the door-closing
statute, we had jurisdiction to review the denial of a
continuance when such a denial would nullify an alien’s
statutory opportunity to adjust status. Specifically, we
found it untenable “that Congress, intending, as it clearly
did, to entitle illegal aliens to seek an adjustment of status
upon the receipt of [certain required] certificates . . . , at the
same time also intended section 1252(a)(2)(B)(ii) to place
beyond judicial review decisions that nullif[y] the statute.”
Subhan, 383 F.3d at 595. In Benslimane v. Gonzales, we
explained that Subhan applies when the denial of a continu-
ance request has “the effect of a substantive ruling on the
application to adjust . . . status.” 430 F.3d 828, 832 (7th
Cir. 2005) (“An immigration judge cannot be permitted,
by arbitrarily denying a motion for a continuance with-
out which the alien cannot establish a ground on which
Congress has determined that he is eligible to seek to
remain in this country, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a),
to thwart the congressional design.”). Consequently,
despite the general rule announced in Ali, we retain
jurisdiction to review a denial of a continuance if that
denial “operates to nullify some statutory right or leads
inescapably to a substantive adverse decision on the merits
of an immigration claim.” Boyanivskyy v. Gonzales, 450 F.3d
286, 291-92 (7th Cir. 2006) (citing Subhan, 383 F.3d at 595,
and Benslimane, 430 F.3d at 832); see also Ali, 502 F.3d at 664-
65 (examining whether “the exception noted in Subhan”
13
See also, e.g., Saeed v. Mukasey, No. 07-3020, 2008 WL 2311596,
at *1 (7th Cir. June 4, 2008) (unpublished); Barragan-Mora v.
Mukasey, No. 07-1694, 2008 WL 2001644, at *2 (7th Cir. May 9,
2008) (unpublished); Mejia v. Keisler, 251 Fed. App’x 354, 357
(7th Cir. 2007) (unpublished).
14 No. 07-1863
applies). Because a court “has jurisdiction to determine
whether there is jurisdiction,” Montrose Chem. Corp. v. EPA,
132 F.3d 90, 94 (D.C. Cir. 1998); see also Flores-Leon v. INS,
272 F.3d 433, 437 (7th Cir. 2001), we proceed to the ques-
tion of whether the Subhan exception to Ali applies here.
2.
Mr. Ceta’s case fits squarely within the Subhan exception.
The IJ’s denial—more specifically, the BIA’s affirmation of
that denial—of Mr. Ceta’s request for a continuance
amounts, under the circumstances of this case, to a denial
of his statutory right to apply for adjustment of status.
Before the IJ, Mr. Ceta requested a continuance to allow
him to obtain an I-130, a prerequisite for filing an ap-
plication for adjustment of status. The IJ denied the con-
tinuance request because, under then-existing regula-
tions, Mr. Ceta was categorically ineligible to apply for
adjustment. A.R. at 44 (concluding that Mr. Ceta is “not
eligible for adjustment of status before the Immigration
Court”). Mr. Ceta appealed the IJ’s decision to the BIA,
and, while his appeal was pending, the regulations that
categorically had prohibited him from applying for ad-
justment were repealed. Mr. Ceta notified the Board
that his I-130 had been approved. He also requested
that the Board remand the case with instructions to con-
tinue the proceedings, in order to enable him to pursue
his adjustment application with the USCIS. Despite de-
scribing the amended regulation at some length and
recognizing that the new regulatory regime allowed Mr.
Ceta to “pursue an[] application for adjustment of status
with [the USCIS] independent of these removal proceed-
ings,” the Board affirmed the IJ’s denial of Mr. Ceta’s
motion for a continuance. A.R. at 3.
No. 07-1863 15
The BIA’s ruling has “the effect of a substantive ruling
on [Mr. Ceta’s] application to adjust his status.” See
Benslimane, 430 F.3d at 832. Under the INA, in general,
an administratively final order of removal, unless ap-
pealed, must be executed within a period of 90 days. See
8 U.S.C. § 1231(a)(1)(A). Moreover, once an alien has been
removed, he no longer may obtain adjustment of status
based on marriage. See Subhan, 383 F.3d at 595
(“[A]djustment of status . . . based on marriage to a U.S.
citizen[] cannot be pursued once the alien has been re-
moved from the United States.”); see also 8 U.S.C.
§§ 1182(a)(9)(A), 1255(a)(2). Because of the denial of the
continuance, therefore, Mr. Ceta’s statutory right to
apply for adjustment of status is trapped within a reg-
ulatory interstice: Section 1255 and the amended regula-
tion, 8 C.F.R. § 245.2(a)(1), afford him an opportunity to
seek adjustment of status with the USCIS, but he will be
deported by Immigration and Customs Enforcement before
the USCIS is able to adjudicate that application.
Indeed, under the new regulatory regime, unless these
subagencies engage in some minimal coordination of their
respective proceedings—for example, by the immigration
courts favorably exercising discretion, in the appropriate
case, to continue proceedings to allow the other subagency
to act—the statutory opportunity to seek adjustment of
status will prove to be a mere illusion.
At least one of our sister circuits has reached the same
conclusion under identical circumstances. The Court of
Appeals for the Ninth Circuit has explained that
[t]he opportunity that the Interim Rule affords for an
arriving alien in removal proceedings to establish his
eligibility for adjustment based on a bona fide marriage
is rendered worthless where the BIA, as it purports to do
in the present case, denies a motion to reopen (or
16 No. 07-1863
continue) that is sought in order to provide time for
USCIS to adjudicate a pending application. Without a
reopening or a continuance, an alien is subject to a final
order of removal, despite the fact that he may have a
prima facie valid I-130 and adjustment application
pending before USCIS. If an alien is removed, he is no
longer eligible for adjustment of status.
Kalilu v. Mukasey, 516 F.3d 777, 780 (9th Cir. 2007) (empha-
sis supplied); see also Sheng Gao Ni v. BIA, 520 F.3d 125, 129-
30 (2d Cir. 2008) (“The BIA did not consider . . . whether
petitioners’ newfound ability to file adjustment applica-
tions with the USCIS warranted a favorable exercise of its
discretion to reopen and continue the proceedings and
thereby lift the removal orders.”). Indeed, the Interim
Rule Notice foresaw this problem and recognized that “it
will ordinarily be appropriate for an immigration judge
to exercise his or her discretion favorably to grant a
continuance . . . in the case of an alien who has submitted
a prima facie approvable visa petition and adjustment
application in the course of a deportation hearing.” See
Interim Rule Notice, 71 Fed. Reg. at 27,589-90 (citing Matter
of Garcia, 16 I. & N. Dec. 653, 657 (BIA 1978)). The denial of
Mr. Ceta’s motion for a continuance “operate[d] to nullify
[his] statutory right” to apply for adjustment of status.
Boyanivskyy, 450 F.3d at 292 (citing Subhan, 383 F.3d at 595).
Accordingly, we have jurisdiction to consider Mr. Ceta’s
submission regarding the denial of his request for a
continuance.
B.
In this case, the BIA improperly declined to remand Mr.
Ceta’s case to the IJ with instructions to continue the
No. 07-1863 17
proceedings so that Mr. Ceta could pursue his adjustment
application with the USCIS. As we explained in Subhan,
when denying a motion for a continuance would nullify the
petitioner’s statutory opportunity to apply for adjustment
of status, the immigration courts must provide “a reason
consistent with the [adjustment] statute.” Subhan, 383 F.3d
at 595; Benslimane, 430 F.3d at 833 (granting a petition for
review where the reason given for the denial was “com-
pletely arbitrary”). For example, we have explained that
“foot-dragging, criminal activity, or [an IJ’s determination
as to the ultimate] lack of merit” of an adjustment applica-
tion constitute valid reasons for denying a continuance
request. Ahmed v. Gonzales, 465 F.3d 806, 809 (7th Cir. 2006);
Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006) (noting
that “the ultimate hopelessness of [petitioner]’s adjustment
application” was a “perfectly acceptable basis for the IJ’s
exercise of discretion”).
In the present case, the BIA did not articulate a reason
for denying Mr. Ceta’s motion for a continuance that
was consistent with the adjustment statute. Instead, it
simply stated that, because Mr. Ceta had to apply for
adjustment with the USCIS, it “f[ou]nd no error in the
Immigration Judge’s denial of [Mr. Ceta’s] motion for a
continuance or the Immigration Judge’s denial of [Mr.
Ceta’s] request for termination of the proceedings.” A.R. at
2-3. Just as in Subhan, “[t]his is not a reason for denying” the
motion for a continuance, “but merely a statement of
the obvious.” Subhan, 383 F.3d at 593 (emphasis in original).
Under the new regulatory regime, it is true that Mr. Ceta
had to apply for adjustment with the USCIS; however, as a
practical matter, he needed more time to pursue his
application with that agency. The BIA failed to address
this critical point. The immigration court’s lack of juris-
18 No. 07-1863
diction to entertain adjustment applications was not a
rational basis for denying Mr. Ceta’s continuance request
but merely a reiteration of the amended regulation. See
Sheng Gao Ni, 520 F.3d at 129-30 (“[T]he reason set forth
by the BIA for its denial of the motions—a lack of juris-
diction over adjustment applications—was unresponsive
to the relief petitioners sought and therefore did not
provide a rational explanation for the denial.”); Kalilu, 516
F.3d at 780 (concluding under identical circumstances
that “the BIA’s denial of Petitioner’s motion to reopen
solely on jurisdictional grounds constitutes an abuse of
discretion”); cf. Dada v. Mukasey, No. 06-1181, ___ S. Ct. ___,
2008 WL 2404066, at *13 (June 16, 2008) (noting, in the
motion to reopen context, that although “the BIA has
discretion to deny the motion for a stay, it may constitute
an abuse of discretion for the BIA to do so where the
motion states nonfrivolous grounds for reopening”).14
14
But see Scheerer v. U.S. Attorney Gen., 513 F.3d 1244, 1254-55
(11th Cir. 2008) [hereinafter Scheerer II]. In Scheerer II, the
Eleventh Circuit determined on jurisdictional grounds that the
BIA did not abuse its discretion in denying a motion to reopen
or a motion for a continuance. 513 F.3d at 1254. The petitioner in
that case contended that previous Eleventh Circuit cases had
found “an abuse of discretion in the denial of a continuance
during the pendency of a visa petition where the alien was
seeking adjustment of status.” Id. The court distinguished these
cases, however, explaining that the petitioners there were subject
to different regulations under which they were entitled to
initiate adjustment applications with the immigration courts
rather than with the USCIS. In contrast,
under 8 C.F.R. § 1245.2(a)(1)(ii), the immigration courts have
no jurisdiction over adjustment applications filed by aliens
(continued...)
No. 07-1863 19
Consequently, we conclude that the BIA abused its discre-
tion in affirming the IJ’s denial of Mr. Ceta’s motion for a
continuance.15
14
(...continued)
in [the petitioner’s] position. Therefore, his application
would never return to the immigration courts even if denied
by USCIS. Given these circumstances—in which there is
no possibility that [the petitioner’s] adjustment application
would be adjudicated during removal proceedings—the
BIA did not abuse its discretion in denying [the petitioner’s]
motion.
Id.
In our view, the fact that Mr. Ceta’s application, in accordance
with the amended regulation, will not be adjudicated by the
immigration courts is not a sound or responsive reason for
denying his continuance request. See Sheng Gao Ni, 520 F.3d at
129-30; Kalilu, 516 F.3d at 780; see also Benslimane, 430 F.3d at 832;
Subhan, 383 F.3d at 595; Interim Rule Notice, 71 Fed. Reg. at
27,589-90 (noting that “it will ordinarily be appropriate for an
immigration judge to exercise his or her discretion favorably
to grant a continuance . . . in the case of an alien who has
submitted a prima facie approvable visa petition and adjustment
application in the course of a deportation hearing”). Indeed,
granting a continuance in appropriate cases, as contemplated
in the Interim Rule Notice, will ensure that the immigration
courts do not intrude into the USCIS’ new role, under the
amended regulations, as the sole adjudicator of adjustment
applications. Furthermore, any difficulty in coordinating the
proceedings—for example, after the USCIS adjudicates the
adjustment application—may be resolved by counsel notifying
the IJ of the ultimate outcome of the adjustment application.
15
Mr. Ceta also contends that the BIA has applied the new
regulation in a manner inconsistent with its purpose and intent.
(continued...)
20 No. 07-1863
To summarize, the denial of Mr. Ceta’s request for a
continuance, under the circumstances of this case,
amounted to a denial of his statutory opportunity to apply
for adjustment of status. See Subhan, 383 F.3d at 595.
Therefore, despite the door-closing statute and the general
rule announced in Ali, we have jurisdiction under the
15
(...continued)
The Interim Rule was issued in order to bring the immigration
system in line with the circuit courts that had struck down the
previous regulation. Interim Rule Notice, 71 Fed. Reg. at 27,587
(recognizing these rulings and explaining that “the Secretary
and the Attorney General have undertaken to resolve the
conflict through rulemaking by removing 8 CFR 245.1(c)(8) and
1245.1(c)(8) rather than continue to litigate their validity”). These
courts struck down the previous regulation on the ground that
it violated INA § 245(a), 8 U.S.C. § 1255(a), because it categori-
cally denied eligibility for adjustment to persons that Congress
determined, under section 1255(a), to be eligible to apply for
such relief. Accordingly, Mr. Ceta contends that, in his case, the
BIA applied the amended regulation in a manner inconsistent
with the purpose and intent of the new regulation. Cf. Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“[W]e must
defer to the Secretary’s interpretation unless an alternative
reading is compelled by the regulation’s plain language or by
other indications of the Secretary’s intent at the time of the
regulation’s promulgation.” (internal quotation marks and
citation omitted)). Because we conclude that the BIA provided
an improper reason for denying his request for a continu-
ance, we need not address this alternative submission.
Additionally, given our holding that the BIA erred in affirm-
ing the IJ’s denial of his request for a continuance, we do not
consider Mr. Ceta’s argument that the amended regulation, as
applied in his case, achieves the same result that four courts of
appeals found to conflict with the Act.
No. 07-1863 21
Subhan exception to review his submissions regarding the
propriety of that denial. See id.; see also Ali, 502 F.3d at 664-
65. Moreover, neither the IJ nor the BIA provided a
reason consistent with the adjustment of status statute
for denying Mr. Ceta’s motion for a continuance. Accord-
ingly, we grant Mr. Ceta’s petition for review, and the
case is remanded to the immigration courts for pro-
ceedings consistent with this opinion.16
16
At oral argument in this case, the Government raised a new
argument not set forth in its brief: It contended that Mr. Ceta’s
predicament arose not from the BIA’s refusal to remand with
instructions to continue the proceedings, but from Mr. Ceta’s
failure to file an application with the USCIS until several
months ago. Under well-established principles of appellate
procedure, we shall not consider arguments raised for the first
time at oral argument; the Government therefore has for-
feited this submission. Valentine v. City of Chicago, 452 F.3d 670,
680 n.1 (7th Cir. 2006); Awe v. Ashcroft, 324 F.3d 509, 512-13 (7th
Cir. 2003).
Nor, given the unusual facts of this case as well as the impor-
tant regulatory changes that have suffused it, would we be
inclined to accept the Government’s argument had it properly
been asserted. The IJ and BIA, of course, never relied on lack of
diligence or delay as a reason for denying Mr. Ceta’s motion for
a continuance. Furthermore, it was not unreasonable for Mr.
Ceta to conclude that, in light of the regulatory changes, the
BIA would remand his case to the IJ with instructions to
continue the proceedings, as we have held that it should have
done, and that he could file the adjustment application with the
USCIS after obtaining that continuance. After the BIA affirmed
the IJ’s decision (subsequent to the regulatory changes), how-
ever, Mr. Ceta became subject to an administratively final order
of removal. Given that final removal order with the concomitant
(continued...)
22 No. 07-1863
Conclusion
For the foregoing reasons, Mr. Ceta’s petition for review
is granted, the judgment of the BIA is reversed, and the
case is remanded for proceedings consistent with this
opinion.
PETITION FOR REVIEW GRANTED;
REVERSED and REMANDED
16
(...continued)
requirement that he be removed within 90 days, the timing of
his application with the USCIS did not contribute to Mr. Ceta’s
predicament; even if Mr. Ceta had filed his application immedi-
ately after the regulation was amended, he would have been
removed well before the USCIS would have adjudicated his
application to adjust status. See United States Citizenship and
Immigration Services, Backlog Elimination Plan, Fiscal Year
2006, 2nd Quarter Update, 3-4 (Sept. 28, 2006), available at
http://www.uscis.gov/files/article/BEPQ2FY06.pdf (last
visited July 1, 2008) (reporting to Congress that the target
completion time for applications for adjustment of status is six
months, but, by the end of the second quarter of fiscal year 2006,
adjustment applications had an average completion time of
approximately twelve months). Mr. Ceta consistently has
asserted his intent to apply for adjustment of status, and he
has been prevented from doing so despite his purposeful pursuit
of that relief. On remand, of course, the Government is free
to contend that, for other reasons consistent with the adjust-
ment of status statute, the grant of a continuance would be
inappropriate.
Finally, because Mr. Ceta filed with the USCIS an adjustment
of status application prior to oral argument, we need not
consider the Government’s argument that Mr. Ceta has failed
to exhaust his administrative remedies.
USCA-02-C-0072—7-25-08