Bona v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DELIA RAMOS BONA, 
Petitioner, No. 03-71596
v.
 Agency No.
A70-151-095
ALBERTO R. GONZALES, Attorney
General,
Respondent.


DELIA RAMOS BONA, 
Petitioner, No. 03-72488
v.
 Agency No.
A70-151-095
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 8, 2005—Pasadena, California

Filed September 30, 2005

Before: Procter Hug, Jr., Warren J. Ferguson, and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hug

13717
13720 BONA v. GONZALES

COUNSEL

Stuart I. Folinsky, Los Angeles, California, for the petitioner.

Earle B. Wilson and Jennifer Paisner, Office of Immigration
Litigation, Washington, D.C., for the respondent.

OPINION

HUG, Circuit Judge:

This case involves a woman who is a Philippine citizen
whose husband has served for 19 years in the United States
Navy and is a naturalized United States citizen. They have
three children who are also now naturalized citizens. She
arrived in the United States in 1991 with her three children as
endangered family members of a serviceman when Mt. Pina-
tubo erupted in the Philippines. She was placed in removal
proceedings eight years later and denied the ability to apply
for adjustment of status under an INS regulation because she
was paroled into the United States at the time of her arrival
in 1991. We hold in agreement with Succar v. Ashcroft, 394
F.3d 8 (1st Cir. 2005), that the regulation is in conflict with
the governing statute and is thus invalid. Under the statute she
is entitled to apply for adjustment in the removal proceedings.
 BONA v. GONZALES 13721
This case started with the best of intentions by our own
government, with the evacuation of military personnel and
their families from the Philippine islands under threat of an
impending volcanic eruption. But the case quickly digressed
into a series of unwise and misplaced discretionary decisions
which ultimately led to an immigration judge entering a final
order of removal against Delia Ramos Bona (“Delia”). Delia
appeals the Board of Immigration Appeals’s (“Board”) deci-
sion affirming the final order of removal and the Board’s
refusal to remand the case. Most importantly, however, Delia
also argues that this court should follow the First Circuit’s
decision in Succar, which held that 8 C.F.R. § 245.1(c)(8), the
regulation that precludes arriving aliens from seeking adjust-
ment of status in removal proceedings, is invalid. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) to consider this
appeal. We agree with the Succar decision and hold that 8
C.F.R. § 245.1(c)(8) is invalid.1 Therefore, Delia was improp-
erly precluded from applying for adjustment of status during
her removal proceedings. Accordingly, we grant the petition
for review and remand the case to the Board of Immigration
Appeals for further proceedings.

I.

Delia is a native and citizen of the Philippines. She is mar-
ried to Rolando G. Bona (“Rolando”), a naturalized United
States citizen. The Bonas are the parents of three children
who are also naturalized citizens. At the time of oral argu-
ment, Rolando had served in the United States Navy for
approximately nineteen years.
1
8 C.F.R. § 245(c)(8) is identical to 8 C.F.R. § 1245.1(c)(8). Section
245.1(c)(8) applies to the immigration agencies within the Department of
Homeland Security, whereas section 1245.1(c)(8) applies to the immigra-
tion courts and the Board of Immigration of Appeals which remain within
the Department of Justice. This opinion will refer to 8 C.F.R.
§ 245.1(c)(8), although both sections are challenged on appeal.
13722 BONA v. GONZALES
In 1989, while Delia and the children were living in the
Philippines, Rolando filed an immediate relative visa petition
on behalf of his wife and children. The petitions were granted
the same year.

In August 1991, the United States military evacuated its
personnel and their families from the Philippine Islands due
to the eruption of Mount Pinatubo. It appears that these mili-
tary families had no choice but to evacuate at the military’s
insistence and their transportation was paid for by the govern-
ment. As a result, Delia and her children were evacuated from
the Philippines and she and the children were paroled into the
United States on August 21, 1991. In September of that same
year, Rolando was naturalized.

Following her husband’s naturalization, Delia applied for
adjustment of status. However, her adjustment application
was denied by the then Immigration and Naturalization Ser-
vice (“the Service”) in October 1991. It appears that the Ser-
vice denied the adjustment application because it believed that
Delia’s husband, Rolando, had fraudulently obtained his
immigrant visa and subsequent citizenship. According to the
Service’s hypothesis, Rolando received his immigrant visa
(and subsequent citizenship) as the “unmarried son of a
United States citizen.” However, the Service believed that at
the time Rolando applied for and received his visa, he was not
“unmarried” because he was in fact married to Delia. Subse-
quently, the Service revoked Delia’s parole authorization.

At the time of the denial, these allegations of fraud had
never been adjudicated or proven in any court of law. Nor
does it appear that there was any evidence that Delia partici-
pated or otherwise was involved in the fraud, if in fact it did
occur. At no time has the Service ever attempted to de-
naturalize Rolando or revoke the approved visa petition
granted to Delia in 1991. In fact, as of this time, the Service
could not take steps to de-naturalize Rolando based upon his
long service to the United States military. In spite of denying
 BONA v. GONZALES 13723
Delia adjustment, the Service did grant the Bona children per-
manent resident status based upon Rolando’s citizenship. The
children have since been naturalized.2

To compound matters, the Service waited more than eight
years to initiate removal proceedings against Delia. Delia’s
August 1999 Notice to Appear alleged that Delia: 1) was an
arriving alien, 2) was not a citizen or national of the United
States, 3) had been admitted to the country as a parolee, and
4) had obtained admission into the United States by fraud.
Thus, the Service charged her as removable under 8 U.S.C.
§ 1227(a)(1)(A) as an inadmissible alien.

The following month, the Service amended the charging
document. The amendment included an additional charge of
inadmissibility under 8 U.S.C. § 1182(a)(7), alleging Delia
was an immigrant not in possession of a valid entry document
at the time of her application for admission.

The Immigration Judge (“IJ”) conducted a hearing on both
charges of inadmissibility and rendered his decision in Febru-
ary 2000. Initially, the IJ determined that the first charge
failed as a matter of law because as a parolee Delia was not
subject to the deportability provisions of section 1227.

Next, the IJ turned to the second charge of removability
under section 1182. Delia admitted the basic elements of the
charge, most notably that she was an arriving alien. Based
upon her status as an arriving alien, the IJ made clear that he
could not consider Delia’s application for an adjustment of sta-
tus.3 Recognizing that there were no other “remedies” avail-
able to Delia, he gave the parties three options: 1) the parties
2
This is based upon representations made to the Court by Delia’s attor-
ney at oral argument.
3
It is important to note the Delia was not attempting to renew her previ-
ously denied application for adjustment. Rather, she was attempting to
make a new application for adjustment in her removal proceedings.
13724 BONA v. GONZALES
could agree to an administrative closure of the case, which
would require the government’s consent, 2) Delia could with-
draw her application for admission and agree to return to the
Philippines in order to pursue her application for admission
from her native country, or 3) the matter could proceed. Both
the government and Delia agreed to proceed. As a result, the
IJ found clear and convincing evidence that Delia was remov-
able. Additionally, he refused to consider Delia’s application
for adjustment because she was ineligible for such relief as an
arriving alien. 8 C.F.R. § 245.1(c)(8). Thus, Delia was
ordered removed to the Philippines.

Delia appealed the decision to the Board of Immigration
Appeals arguing that she was not an “arriving alien” and
should have been allowed to adjust her status in her removal
proceedings. The Board, in a per curiam decision, rejected
this argument without comment and dismissed the appeal. On
a motion to reconsider, the Board again rejected this argument
because Delia admitted at her removal hearing that she was an
“arriving alien.”

On appeal, she renews her argument that she was not an
“arriving alien” within the meaning of the Immigration and
Naturalization Act. Alternatively, she argues that even if she
is “an arriving alien” she should not have been precluded
from applying for adjustment of status in her removal pro-
ceedings. She urges this court to adopt the rationale of Succar
v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), and hold that the regu-
lation promulgated by the Attorney General, 8 C.F.R.
§ 245.1(c)(8), which precludes “arriving aliens” from apply-
ing for adjustment of status in removal proceedings, is invalid
because it is in direct conflict with 8 U.S.C. § 1255(a).4
4
The First Circuit decided the Succar case while this case was pending
on appeal to this court. Delia initially raised the issue in a letter to the
court pursuant to Fed. R. App. P. 28(j). The issue was addressed at oral
argument and the parties were ordered to provide supplemental briefing on
the issue. The court also accepted an amicus brief filed by the American
 BONA v. GONZALES 13725
II.

[1] The precise issue raised by this appeal is whether a
paroled alien, who is also deemed an arriving alien under 8
C.F.R. § 1.1(q), is properly precluded from applying for
adjustment of status in removal proceedings. This is a novel
issue, not yet addressed by this circuit. To answer this ques-
tion, we must first determine whether Delia is in fact an “ar-
riving alien” within section 1.1(q). If she is, we must then turn
to the question of whether 8 C.F.R. § 245.1(c)(8), which pre-
cludes arriving aliens (including paroled aliens by definition)
from applying for adjustment of status, is invalid because it
is clearly contrary to the statute defining the categories of
aliens who are eligible to apply for adjustment of status with-
out restriction. 8 U.S.C. § 1255(a).

First, Delia argues that she is not an “arriving alien” within
the meaning of 8 C.F.R. § 1.1(q). She bases this argument on
the fact that she was paroled into the United States before
April 1, 1997, and thus she claims to be specifically exempted
from the definition of “arriving alien” under section 1.1(q).

The section states, in relevant part:

An arriving alien remains such even if paroled pur-
suant to section 212(d)(5) [8 U.S.C. § 1182(d)(5)] of
the Act, except that an alien who was paroled before
April 1, 1997, or an alien who was granted advance
parole which the alien applied for and obtained in
the United States prior to the alien’s departure from
and return to the United States, shall not be consid-

Immigration Law Foundation. The Attorney General was also permitted
to file a response to this brief. We find that a narrow exception allowing
us to hear an issue raised for the first time on appeal applies in this case
because this is a pure issue of law and the opposing party will not be prej-
udiced by its consideration. See United States v. Antonakeas, 255 F.3d
714, 721 (9th Cir. 2001).
13726 BONA v. GONZALES
ered an arriving alien for purposes of section
235(b)(1)(A)(i) [8 U.S.C. § 1225(b)(1)(A)(i)] of the
Act.

8 C.F.R. § 1.1(q) (emphasis added).

[2] The regulation shows that an alien paroled under 8
U.S.C. § 1182(d) remains an “arriving alien” regardless of her
parole status. The section also creates two exemptions from
the definition of “arriving alien”: 1) aliens paroled into the
United States before April 1, 1997, and 2) aliens granted
advance parole. However, a plain reading of the regulation
clearly shows that both exceptions only exempt these aliens
from the definition of “arriving alien” for the purpose of
excluding them from expedited removal proceedings under 8
U.S.C. § 1225(b). Accordingly, Delia, as a parolee, was prop-
erly deemed an “arriving alien” within the meaning of section
1.1(q).

[3] As a parolee who is deemed an “arriving alien,” Delia
is specifically precluded by regulation from applying for
adjustment of status. 8 C.F.R. § 245.1(c)(8). However, Delia
argues that this regulation directly conflicts with 8 U.S.C.
§ 1255(a), which allows any alien who has been “inspected
and admitted or paroled” into the country to apply for adjust-
ment of status. (emphasis added). She specifically urges this
court to follow Succar, which invalidated this regulation on
this very basis.

We agree with the analysis and holding of Succar. Accord-
ingly, we hold that because the “regulation redefines certain
aliens as ineligible to apply for adjustment of status . . . whom
a statute, 8 U.S.C. § 1255(a), defines as eligible to apply[,]”
the regulation is invalid. Succar, 394 F.3d at 9.5 Therefore, we
5
At oral argument, the Attorney General attempted to distinguish Succar
from the facts of this case because Delia’s parole status had been revoked.
However, the Attorney General did not provide any legal authority or
 BONA v. GONZALES 13727
expressly adopt and follow the Succar decision and hold that
8 C.F.R. § 245.1(c)(8) is invalid.6

[4] In reviewing regulation section 245.8(c)(8) we apply
the test set forth in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Under step one
of the Chevron test, we must first ask whether Congress has
spoken to the precise question at issue. Id. at 842; Akhtar v.
Burzynski, 384 F.3d 1193, 1198 (9th Cir. 2004). “If Congress
has done so, the inquiry is at an end; [we] must give effect to
the unambiguously expressed intent of Congress.” Morales-
Izquierdo v. Ashcroft, 388 F.3d 1299, 1303 (9th Cir. 2004)
(internal quotations and citations omitted). However, if we
determine that Congress did not speak to the precise issue
because the statute is either silent or ambiguous, we must go
to step two in the Chevron analysis and consider the agency’s
interpretation. See Chevron, 467 U.S. at 843; Akhtar, 384
F.3d at 1198. Here, we ask whether the regulation enacted by
the agency is a permissible construction of the statute. Id. If
so, we must defer to the agency’s interpretation. Id. This is a
question of law reviewed de novo. Id.

analysis for why this distinction is significant. Furthermore, the Attorney
General did not raise this argument again in either of his supplemental
briefs filed with the court following oral argument. Therefore, it appears
the argument has been waived by the government. However, even if it has
not been waived, it is not disputed that Delia was “paroled” into the
United States. Therefore, under the plain terms of section 1255(a), she
would be eligible for adjustment of status regardless of whether her parole
status ended or was revoked at a later time. Cf. Tibke v. INS, 335 F.2d 42,
45 (2d Cir. 1964) (noting that the adjustment of status statute as amended
eliminated the requirement that the non-citizen’s original status be main-
tained in order to be eligible for relief.)
6
In reaching this conclusion, we have reviewed and considered Mouelle
v. Gonzales, ___ F.3d ___, 2005 WL 17903137 (8th Cir. July 29, 2005)
(2-1 decision), which recently rejected the Succar holding in a case very
similar to the case at bar. However, we find the reasoning of Succar more
persuasive and therefore reject the approach taken by the Mouelle court.
13728 BONA v. GONZALES
In Succar, the First Circuit directly confronted the identical
issue presented by this appeal. 394 F.3d at 9. Wissam Succar,
a native and citizen of Lebanon, was taken into custody by
immigration officials at Miami International Airport after
approaching an official at the airport and indicating that he
wished to apply for asylum. Id. at 11. After an initial inter-
view with immigration authorities, it was determined that
Succar had a credible fear of future persecution and the facts
provided by Succar were sufficient to establish his eligibility
for asylum. Id. Succar was placed into removal proceedings
and paroled into the United States. Id.

More than a year later at his removal hearing, Succar
admitted the allegations in his Notice to Appear. He renewed
his application for asylum, but the IJ denied it. Succar
appealed to the Board of Immigration Appeals. Id.

While his appeal was pending, Succar married a United
States citizen, who filed an immigrant visa petition on his
behalf; the petition was approved. Id. Believing that he now
met the statutory requirements for adjustment of status, Suc-
car then filed a motion with the Board to remand his case to
the IJ for consideration of his adjustment application. Id. His
motion was granted. Before the IJ, the government took the
position that 8 C.F.R. § 245.1(c)(8) prevented Succar from
applying for adjustment of status. Id. The IJ denied the appli-
cation for adjustment because of Succar’s status as an arriving
alien. Id. at 12. Succar’s subsequent appeal to the Board was
denied. Id.

[5] Succar challenged the validity of section 245.1(c)(8) on
appeal to the First Circuit. After explaining in great detail the
immigration laws and regulations pertaining to adjustment of
status, parolees, and the changes brought about by the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), the court turned to the validity of section
245.1(c)(8). The court first addressed step one of the Chevron
test — whether Congress had spoken to the precise question
 BONA v. GONZALES 13729
at issue. Chevron, 467 U.S. at 842. The court determined that
Congress had spoken to the precise issue of which aliens were
eligible to apply for adjustment of status, specifically all
aliens who were “inspected and admitted or paroled” into the
country. Succar, 394 F.3d at 24 (quoting 8 U.S.C. § 1255(a)).
Therefore, the court found that Congress had “reserved for
itself the determination of whether a non-citizen should be
able to apply for this relief.” Id.

The court noted that Congress specifically defined who was
eligible to apply for adjustment and that these categories had
remained the same in spite of numerous amendments made to
the statute since its initial enactment in 1960. Id. at 24 n.20.
Additionally, aliens in these eligible categories are not
restricted from seeking adjustment of status once placed in
removal proceedings. Id. at 24.

[6] Next, Succar clarified that when Congress intended to
limit those categories of aliens who were eligible to apply for
adjustment, it explicitly did so. Id. at 25 (citing 8 U.S.C.
§ 1255(c)). Under section 1255(c), Congress specifically
excluded several categories of aliens otherwise eligible from
applying for adjustment of status. Furthermore, Congress has
even provided for exceptions to these exclusions in certain
classes of cases. See 8 U.S.C. § 1255(i).

[7] Next, the court engaged in a very thorough analysis of
the larger statutory scheme. The court’s analysis makes clear
that Congress first determined that paroled aliens were to be
considered “inadmissible” by statute. Succar, 394 F.3d at 26
(citing 8 U.S.C. § 1182(a)). However, in spite of their “inad-
missible” status, Congress also made the clear policy choice
that these aliens also should be eligible to apply for adjust-
ment of status. 8 U.S.C. § 1255(a). The court went on to
explain that based upon their “inadmissible” status, paroled
aliens also would be placed in removal proceedings. Succar,
394 F.3d at 27 (citing 8 U.S.C. § 1225(b)(2)(A)). The deci-
sion to place these aliens in removal proceedings is not left to
13730 BONA v. GONZALES
the discretion of the Attorney General, but rather is mandated
by the statute. See 8 U.S.C. § 1225(b)(2)(A). Thus, the Succar
opinion points out:

This context shows that Congress purposefully clas-
sified 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.

Succar, 394 F.3d at 27. Thus, a regulation that specifically
excludes paroled aliens from applying for adjustment of status
in removal proceedings directly conflicts not only with the
specific statute on point, 8 U.S.C. § 1255(a), but creates
absurd results when viewed in light of the larger statutory
scheme.

We agree with the above analysis. But we must also point
out the practical effect of the Attorney General’s regulations
with respect to adjustment of status applications made by
parolees. Prior to the enactment of IIRIRA, a paroled alien
was generally placed in exclusion proceedings as she was
considered not to have “entered” the country. See generally
Landon v. Plasencia, 459 U.S. 21, 25-26 (1982). Although
exclusion proceedings limited the forms of relief available to
individuals, paroled aliens were specifically allowed to apply
to the district director having jurisdiction over their case while
the exclusion proceedings were ongoing.7 In Re Castro-
Padron, 21 I. & N. Dec. 379, 379-380 (BIA 1996).

The enactment of IIRIRA changed this system. Gone were
the days of “exclusion” proceedings and now paroled aliens
were generally placed in “removal” proceedings. Based upon
the Attorney General’s regulation, a paroled alien may apply
7
Such a paroled alien also could apply directly for adjustment to the dis-
trict director if not placed in exclusion proceedings.
 BONA v. GONZALES 13731
only to the district director for an adjustment. 8 C.F.R.
§ 245.2(a)(1). However, this is only true if the paroled alien
is also not first placed in removal proceedings. Id. Based upon
8 C.F.R. § 245.1(c)(8), once the paroled alien (who is also
classified as an “arriving alien”) is placed in removal proceed-
ings, the regulation precludes any application for adjustment
of status, including a direct application to the district director.
8 C.F.R. § 245.2(a)(1); 8 C.F.R. § 245.1(c)(8); Succar, 394
F.3d at 18. This is a break from the prior procedure and it is
this aspect of section 245.1(c)(8) which proves fatal. By
entirely excluding a category of aliens from the ability to
apply for adjustment, who by statute are eligible to apply for
such relief, the regulation goes beyond simply regulating the
manner in which such applications shall be made or the dis-
cretionary decision to grant such relief. Rather, the regulation
strips statutory eligibility for such relief in any form from this
entire category of aliens once they are placed in removal pro-
ceedings. The statute provides for no such restriction. Further-
more, the larger statutory context does not provide the
Attorney General with the discretion to make such a choice.

[8] Although Congress delegated to the Attorney General
the discretionary authority to grant or deny an application for
an adjustment of status, 8 U.S.C. § 1255(a), Congress did not
delegate to the Attorney General the discretion to choose who
was eligible to apply for such relief. Thus, we agree with the
First Circuit that Congress has spoken to the precise issue of
who is eligible to apply for adjustment of status and that 8
C.F.R. § 245.1(c)(8) is directly contrary to this Congressional
determination. Succar, 394 F.3d at 29. Therefore, the inquiry
is at an end, see Morales-Izquierdo v. Ashcroft, 388 F.3d at
1303, and section 245.1(c)(8) is invalid. The petitioner is eli-
gible for adjustment of status.8
(Text continued on page 13733)

8
This case is both factually and legally distinguishable from Jiang v.
Gonzales, No. 03-71837 (9th Cir. filed Sept. 23, 2005) and therefore, not
controlled by its result. First, the circumstances of Jiang’s arrival and ini-
tial stay in the United States are completely different. Jiang initially was
13732 BONA v. GONZALES
allowed to travel through the country after receiving the “transit-without-
visa” privilege. However, his inadvertence at an airport resulted in his
staying in the United States after failing to board a flight back to China.
After his initial arrival, Jiang voluntarily applied for and was granted
advance parole. Upon his return from China, Jiang was paroled into the
United States. Delia, on the other hand, was compelled to come to this
country and evacuate the Philippines by the United States military. Upon
her arrival, she was given parole. She was neither given a choice in the
matter nor was she made aware of the consequences of her parole status.
Second, although Jiang and Delia were both “paroled” aliens, who were
subsequently categorized as “arriving aliens” under 8 C.F.R. § 1.1(q), and
were limited in obtaining adjustment of status in removal proceedings, the
posture of their adjustment applications is completely different. Jiang was
attempting to renew his previously denied adjustment application in
removal proceedings, whereas Delia was attempting to make a completely
new application. As a result, Jiang and Delia attack entirely different regu-
lations on appeal.
Delia challenges 8 C.F.R. § 245.1(c)(8), which precludes arriving aliens
from making a new or initial application for adjustment of status in
removal proceedings. In contrast, Jiang challenges 8 C.F.R. § 1245.2(a),
which precludes an arriving alien from renewing a previously denied
application for adjustment of status in removal proceedings. Unlike the
regulation attacked in this case, 8 C.F.R. § 1245.2(a) does not entirely pre-
clude paroled aliens (who are deemed arriving aliens) from their statutory
eligibility to apply for adjustment. Rather, the regulation merely defines
the manner in which a previously denied application can be renewed. This
difference is significant.
Section 245.1(c)(8) entirely precludes a class of aliens, paroled aliens,
who by statute are eligible to apply for adjustment of status, from making
any such application once they are placed in removal proceedings. See 8
U.S.C. § 1255(a). This is different from precluding a paroled alien, who
is also an arriving alien, from renewing a previously denied application.
Unlike Delia, Jiang was eligible to apply for adjustment and did apply, but
was denied relief. Thus, section 1245.2(a) does not strip the ability of an
otherwise eligible class of aliens from applying for adjustment of status in
any way. Therefore, the conclusion in Jiang that 8 C.F.R. § 1245.2(a) does
not violate 8 U.S.C. § 1255(a) is correct. However, the determination of
whether section 1245.2(a) is consistent with the statute is inapposite to the
issue of whether section 245.1(c)(8) is valid. As Jiang is distinguishable
from the case at bar both factually and legally it is not controlling.
 BONA v. GONZALES 13733
Accordingly, we GRANT the petition for review and
REMAND this case to the Board for further proceedings con-
sistent with this opinion.