Akhtar v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 23, 2006

Charles R. Fulbruge III
Clerk
No. 04-60497
consolidated with
No. 04-60895

RAJA AKHTAR; MOHAMMAD SALMAN,

Petitioners,

versus

ALBERTO R. GONZALES, Attorney General of the United States,

Respondent.

______________________

Petition for Review of an Order of the
Board of Immigration Appeals
______________________

Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Raja Akhtar and Mohammad Salman, citizens of Pakistan, are

“paroled” “arriving aliens” in removal proceedings. Under a

regulation promulgated in 1997, such aliens cannot apply for

adjustment of status to become immigrants. Because they mount

the same legal challenge to the regulation, a challenge upheld by

four of our sister circuits and rejected by one, we consolidated

their appeals. We reject the challenge and affirm.

I. Factual Background

A. Raja Akhtar
 Raja Akhtar, a native and citizen of Pakistan, entered the

United States in 1990 through Texas using a fraudulent passport.

He has been living in this country ever since, going abroad once,

in 1997, pursuant to a fraudulently obtained advance parole. In

2000, Akhtar married his current wife, Aracely Cuellar Chapa, a

United States citizen, with whom he has two citizen children.

The INS, now part of the Department of Homeland Security and

the U.S. Customs and Immigration Service (USCIS), commenced

removal proceedings against Akhtar on December 9, 2000. In

response, Akhtar filed an application for cancellation of removal

and an application for adjustment of status based on his

marriage. He also sent a letter to the INS District Director,

asking him to temporarily terminate the removal proceedings

because the Immigration Judge lacked jurisdiction to hear the

application for adjustment of status while the proceedings

continued. The INS asked the IJ to confirm that she lacked such

jurisdiction under a regulation forbidding applications from

“arriving aliens” in removal proceedings, like Akhtar. The IJ

did so. After the District Director refused to terminate removal

proceedings, the IJ denied Akhtar’s application for cancellation

of removal, finding that he failed to establish that removal

would cause “exceptional and extremely unusual hardship” to a

qualifying family member, and issued a final order of removal.

The Board of Immigration Appeals dismissed his appeal without

2
comment.1

On appeal to this court, Akhtar argues: 1) that the

regulation precluding applications for adjustment of status from

“arriving aliens” in removal proceedings is invalid;2 2)

alternatively, since the USCIS District Director has jurisdiction

to adjudicate such applications if removal proceedings are

conditionally terminated, that we should “initiate” conditional

termination; and 3) that the IJ erred in denying Akhtar’s

application for cancellation of removal.

B. Mohammad Salman

Mohammed Salman, a native and citizen of Pakistan, entered

the United States at San Francisco International Airport on April

25, 2001, using another person’s passport and visa. He then

attempted to assume that person’s identity.

The INS detained Salman and commenced removal proceedings

against him on May 9, 2001, releasing him from custody and

paroling him into the United States on June 19 after he posted

bond. The INS transferred his case to Houston after Salman moved

to Texas. On August 20, Salman applied for asylum and admitted

that he was removable as charged. On November 11, 2002, Salman

1
Akhtar had also filed an earlier adjustment of status application
based on a previous wife, a wrinkle discussed by the IJ but irrelevant to this
appeal.
2
Respondent argues that Akhtar waived this argument by conceding to the
IJ and the District Director that the regulation precluded jurisdiction over
his application, first arguing invalidity of the regulation to the BIA. We
rejected this argument in our January 5, 2005 order denying Respondent’s
motion to dismiss, and we do not address it again.

3
married his current wife, Senovia Ramiers, a United States

citizen, with whom he has one child, an American citizen by

birth.

During removal proceedings, the IJ denied Salman’s motion

for continuance to allow adjudication of an immigrant visa

petition based on his marriage. The BIA affirmed, concluding

that the IJ did not abuse her discretion in refusing to continue

the proceedings because Salman, as an arriving alien in removal

proceedings, was ineligible to adjust status under current

regulations,3 rending a continuance pointless. Salman appeals,

challenging the validity of that regulation and, hence, the IJ’s

denial of his motion for continuance.

II. Statutory & Regulatory Background

Before 1960, aliens in the United States without a valid

visa had to go abroad to apply for permanent resident (immigrant)

status. In 1960, Congress eliminated that burden by expanding

eligibility for “adjustment of status” under 18 U.S.C. § 1255(a)

3
The BIA held that Salman, “an arriving alien, is not eligible to
adjust his status in removal proceedings,” leaving open the possibility that
he is eligible to adjust status elsewhere — for instance, with the District
Director — even though he is in removal proceedings. However, the regulation
governing adjustment procedure, 8 C.F.R. § 245.2(a)(1), states that aliens in
removal proceedings (albeit in conjunction with the challenged regulation, 8
C.F.R. § 245.1(c)(8), this means non-arriving aliens) must adjudicate their
applications in the proceedings, not in front of the District Director.
Salman interprets the BIA’s ruling to be that arriving aliens in removal
proceedings cannot apply anywhere, the position maintained by the Government
in this appeal and other cases. We agree with that interpretation.

4
to all aliens “inspected and admitted or paroled,”4 allowing

people in the country to apply for immigrant status without

leaving, even those in the country without a valid visa.

“Paroled” aliens are those aliens allowed to enter the country

temporarily, without a valid visa, while authorities investigate

their eligibility for admission. Under § 1255(a), Respondent

may, “in his discretion and under such regulations as he may

prescribe,” grant such an application. 8 U.S.C. §

1252(a)(2)(B)(i) makes unreviewable his use of that discretion.

Before 1997, aliens were divided into two categories:

“applicants for admission,” also called “arriving aliens,” those

aliens who had not yet “entered”5 the country, and aliens present

in the U.S. who had already “entered,” with or without

inspection. Paroled aliens were considered arriving aliens.

After inspection, arriving aliens were either admitted or

“excluded” during “exclusion proceedings;” aliens who had already

entered were either admitted or “deported” during “deportation

proceedings.”

Pursuant to § 1255(a), parolees could adjust status with

the District Director — even if they were in exclusion

4
The aliens must also be eligible for and have immediately available an
immigrant visa, based on family, employment, or diversity. See Succar v.
Ashcroft, 394 F.3d 8, 12-19 (1st Cir. 2005) (thoroughly detailing the relevant
history and statutory structure).
5
An alien may have been physically present in the country but not yet
have “entered” for immigration purposes.

5
proceedings. The BIA held that in exclusion proceedings, the

District Director, not the IJ, maintained jurisdiction over

applications.6

The 1997 Illegal Immigration Reform and Immigration

Responsibility Act (IIRIRA)7 eliminated the concept of “entry” to

differentiate aliens, replacing it with the concept of admitted

versus non-admitted aliens. The main effect is that aliens

present in the U.S. who have not been not been inspected or

admitted are added to those considered applicants for admission,

or arriving aliens. It also replaced exclusion and deportation

with “removal,” applicable to all aliens in the country without

inspection, inspected but not admitted, or previously admitted

but now subject to removal.8 The IIRIRA did not change § 1255(a)

or otherwise change the adjustment of status process.

In 1997, Attorney General Janet Reno issued new regulations

said to implement the IIRIRA. The regulations created a new

definition for “arriving alien,” a term that had existed without

definition in the old statute: “The term arriving alien means an

6
Historically, the District Director also had jurisdiction over
applications by admitted aliens in deportation proceedings. However, in 1961
regulations gave the IJ in an deportation proceeding authority to renew an
application denied by the District Director or adjudicate an initial
application, divesting the District Director of jurisdiction once deportation
proceedings began. The BIA determined, however, that the District Director
retained sole jurisdiction during exclusion proceedings.
7
Pub. L. No. 104-208, 110 Stat. 3009-546; see generally Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).
8
There are special procedures for stowaways, dangerous people, and
people entering who lie or lack proper documents. See Succar, 394 F.3d at 13.

6
applicant for admission coming or attempting to come into the

United States at a port of entry....An arriving aliens remains

such even if paroled [except aliens paroled before April 1, 1997

or aliens receiving advance parole]....”9 This definition is not

in controversy, merely codifying the previously understood

definition, which under the IIRIRA now encompasses all non-

admitted aliens.

The Attorney General made a more substantive change to the

adjustment of status regulations, 8 C.F.R. § 245.1(c)(8),

rendering seven categories of aliens “ineligible” to apply for

adjustment of status under § 1255(a), including “[a]ny arriving

alien who is in removal proceedings....” This regulation

dovetails with the new regulation governing adjustment procedure,

promulgated at the same time:

An alien [who believes he 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...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....[An alien on advance parole (hence not an
arriving alien) whose application was denied by the
District Director may renew that application in removal
proceedings.]10

Thus, § 245.1(c)(8) prevents arriving aliens, including parolees,

9
8 C.F.R. § 1.1(q).
10
8 C.F.R. § 245.2(a)(1) (emphasis added).

7
in removal proceedings from filing for adjustment of status,

either with the District Director, as they had been able to do in

exclusion proceedings before 1997, or the IJ.

The parties agree that Akhtar and Salman are parolees in

removal proceedings.11 Instead, Akhtar and Salman challenge the

validity of § 245.1(c)(8), arguing that in rendering parolees in

removal proceedings ineligible to apply, it conflicts with §

1255(a), which makes parolees eligible to apply without mention

of removal proceedings.

In promulgating § 245.1(c)(8), the Attorney General

explained that she was furthering Congress’s intent to expedite

removal of arriving aliens by “not favorably exercis[ing]” her

unreviewable discretion to adjust status under §§ 1255(a) and

1252(a)(2)(B)(i).12 She explained further that arriving aliens

in removal proceedings eligible for immigrant visas would have to

return to their home countries to apply, although she might

exercise her “prosecutorial discretion” not to initiate removal

proceedings or to terminate removal proceedings to allow

applicants to apply to the District Director. Respondent Alberto

Gonzalez, Reno’s successor, maintains this position.

11
Akhtar claimed below that he had gone abroad in 1997, returning on
advance parole, exempting him the definition of “arriving alien” and allowing
him to file under § 245.1(c)(8). Respondent argued that the advance parole
was invalid because predicated on Akhtar’s original fraudulent entry. We do
not address the issue because Akhtar concedes on appeal that he is an arriving
alien.
12
See Succar, 394 F.3d at 13.

8
 Akhtar and Salman reply that Respondent cannot by regulation

redefine eligibility defined by Congress, despite his

unreviewable discretion once the applications are filed. Hence

the heart of this case: how to resolve the inherent tension in a

statutory scheme that explicitly defines who is eligible to apply

but gives Respondent unreviewable discretion to review the

applications.

III. Jurisdiction

Respondent argues first that 8 U.S.C. § 1252(a)(2)(B), the

provision precluding judicial review of discretionary orders,

including orders granting or denying adjustment of status, bars

our consideration of petitioners’ claim. Like our five sister

circuits that have addressed the validity of § 245.1(c)(8),13 we

reject this argument because the issue here is one of statutory

interpretation, a pure legal task distinct from review of an

individual decision on the merits of an application for

adjustment. That our analysis centers on the effect of

Respondent’s discretion does not change this result.

IV. Previous Challenges to § 245.1(c)(8)

13
See Succar v. Ashcroft, 394 F.3d 8, 19-20 (1st Cir. 2005) (holding
that we have jurisdiction); Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir. 2005)
(same); Mouelle v. Gonzales, 416 F.3d 923, 927-29 (8th Cir. 2005) (assuming
that we have jurisdiction); Bona v. Gonzalez, 425 F.3d 663, 667-669 (9th Cir.
2005) (same); Scheerer v. Attorney General, __ F.3d __, Nos. 04-16231 & 05-
11303, 2006 WL 947680, at *5-*8 (11th Cir. Apr. 13, 2006) (same).

9
 Until recently, we had not examined this issue.14 In an

opinion issued after oral argument in our case, Momin v.

Gonzalez, another panel of this court addressed it head-on and

upheld the regulation, as we do.15 Our opinion builds upon

Momin, as we will explain.

Five of our sister circuits have passed on § 245.1(c)(8).

The First Circuit lead, invalidating the regulation in Succar v.

Ashcroft16 after concluding that it violated Chevron step one17

because discretion to adjudicate individual applications is not

discretion to redefine eligibility, citing INS v. Cardoza-

Fonseca.18 It held that while an agency may use its discretion

to define eligibility where Congress was silent on eligibility,

citing Lopez v. Davis,19 Congress was not silent here – § 1255

14
We had cited the regulation in an unpublished opinion, where the
petitioner never challenged its legitimacy, see Doria v. Ashcroft, 98 Fed.
Appx. 352 (5th Cir. 2004), and in another unpublished opinion we had held the
argument waived, see Diarra v. Gonzales, 137 Fed. Appx. 627 (5th Cir. 2005).
15
___ F.3d ___, No. 05-60119, 2006 WL 1075235 (5th Cir. Apr. 24, 2006).
16
394 F.3d 8 (1st Cir. 2005).

17
See Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S.
837 (1984) (formulating the classic two-step process for evaluating the
validity of regulations). Step one asks whether Congress has spoken to the
precise question at issue; if so, the inquiry ends and Congress’s wishes
control. If the statute is silent or ambiguous, step two asks whether the
agency’s interpretation is “permissible,” or reasonable. Id. at 842-43.
18
480 U.S. 421 (1987).
19
531 U.S. 230 (2001). In Lopez, a statute allowed the Bureau of
Prisons (BOP) to decrease the sentence of a prisoner who completed a treatment
program by up to a year. BOP promulgated a regulation categorically denying
reduction to any prisoner whose current offense was a drug felony involving a
gun. The Supreme Court upheld the regulation as “delineat[ing]...an
additional category of ineligible inmates,” noting that “Congress simply did

10
explicitly states who is eligible and creates many carve-ins and

carve-outs, highlighting the lack of a carve-out for parolees in

removal proceedings.20 Moreover, the court observed, since most

parolees are now put in removal proceedings, § 245.1(c)(8)

effectively makes all parolees ineligible.21 The court also

noted the larger statutory context, concluding that its explicit

grants of discretion highlight the lack of discretion over

eligibility. Checking this interpretation against the

legislative history of § 1255 from 1960,22 the court concluded

that § 245.1(c)(8) re-institutes the burdensome procedure that §

1255 was designed to eliminate. Finally, the court rejected

Respondent’s contention that the IIRIRA justifies the regulation,

noting that the IIRIRA left § 1255 untouched and that the general

policies said to be embodied by the IIRIRA are doubtful, and in

any event insufficient to justify such a sharp break from

not address how the Bureau should exercise its discretion within the class of
inmates” who are eligible. It noted that “[b]eyond instructing that the
Bureau has discretion to [reduce sentence], Congress has not identified any
further circumstance in which the Bureau either must grant the reduction, or
is forbidden to do so.” Id. at 714.
20
The court noted that some of the carve-outs made ineligible certain,
but not all, aliens in removal proceedings. It also explained that the carve-
outs and ins were added over the years, stressing the lack of Congressional
will to make ineligible all parolees in removal proceedings.
21
The court rejected Respondent’s contention that paroled aliens in
removal proceedings could simply return to their home countries to apply,
noting statutory barriers if the aliens were unlawfully present in the United
States for certain periods of time or departed “involuntarily.” Respondent
urges that these barriers are waivable in his discretion.
22
The court noted that some people question whether legislative history
should be analyzed during Chevron step one, concluding that it should.

11
previous practice.

The Eighth Circuit followed with Mouelle v. Gonzales,23

rejecting Succar and upholding the regulation. It held first

that Chevron step one did not control because § 1255(a) gave

Respondent discretion to adjust status, and such discretion can

be exercised case-by-case or by rule. For this proposition it

cited its own case Bellis v. Davis,24 affirmed in Lopez, and

Judge Friendly’s statement about § 1255 that “We are unable to

understand why there should be any general principle forbidding

an administrator, vested with discretionary power, to determine

by appropriate rulemaking that he will not use it in favor of a

particular class on a case-by-case basis....”25 It rejected

Succar’s interpretation of Cardoza-Fonseca, acknowledging that

Cardoza-Fonseca distinguished statutory eligibility but noting

that its context was materially different.26 Turning to Chevron

23
416 F.3d 923 (8th Cir. 2005). Judge Bye dissented, explaining that
he would follow Succar.
24
186 F.3d 1092, 1094-95 (8th Cir. 1999).
25
Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970).
26
The BIA in Cardoza-Fonseca had construed the statutory
eligibility standard for asylum (a form of
discretionary relief) as requiring the same showing —
a clear probability of persecution — as the statutory
eligibility standard for withholding of deportation (a
form of relief that must be given to an eligible
alien). The Court reasoned that the BIA’s
construction did not fit the statutes because the
difference between the nature of the relief available
under each — discretionary versus mandatory — evinced
a congressional intent that the eligibility standard
for discretionary asylum would be less demanding than
the eligibility standard for mandatory withholding.

12
step two, the court held § 245.1(c)(8) reasonable as a means to

expedite removal proceedings. Finally, the court noted that,

unlike Succar, it had no evidence that most parolees were put in

removal proceedings; to the contrary, Respondent had stated that

few were put in removal proceedings. In any event, the court

stated, the number is irrelevant.

Next came Zheng v. Gonzales, where the Third Circuit

invalidated the rule, albeit under Chevron step two.27 The court

first rejected Succar’s rationale, holding that its distinction

between eligibility and case-by-case discretion was rejected by

the Court in Lopez28 and that Succar’s basis for distinguishing

Lopez — that the statute in Lopez was silent as to eligibility

criteria — came “perilously close to rejecting” that case.29 It

then held that Lopez, though swaying in Respondent’s favor by

But the Court did not hold that the Attorney General
could not by regulation determine who among the class
of aliens that is statutorily eligible for
discretionary relief would or would not be afforded
such relief. It simply held that the BIA’s
interpretation of the statute in that case failed
because Congress did not intend the heightened
mandatory-withholding showing to apply to
discretionary asylum.

Mouelle, 416 F.3d at 929-930 (internal citations omitted).
27
Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005).
28
Zheng noted that the losing prisoner in Lopez had argued “that, by
identifying a class of inmates eligible for sentence reductions...Congress has
barred the [BOP] from identifying further categories of ineligible inmates.”
Id. at 116. In addition, the court implicitly held that Carcoza-Fonseca is
distinguishable for the reasons stated by the Eighth Circuit.
29
Id. n.14.

13
allowing him to exercise discretionary authority by rule, was a

“double-edged sword” in putting that discretionary authority

“squarely within the second step” of Chevron.30 Turning to step

two, the court focused on the percentage of parolees put in

removal proceedings. Although it had no statistics, it noted

those cited in Succar and held that, more importantly, the

statutory structure seems to mandate that parolees be put in

removal proceedings, regardless of Respondent’s claim to

discretion.31 Noting that the exception allowing parolees in

removal proceedings to renew applications was narrow, and that

“renewing” was not “applying,” the court held that § 245.1(c)(8)

“for all practical purposes” renders parolees ineligible to

apply. Citing the language, structure, and legislative history

of the immigration statutes, the court explained that Congress

clearly intended in § 1255 that most parolees could apply. Given

this conflict, it struck down the regulation. In doing so, it

noted that the “closeness of the step one question ha[d] some

bearing on [its] step two decision.”

30
The court noted that the Supreme Court in Lopez analyzed the BOP’s
exercise of discretion by rule under Chevron step two.
31
The court noted that under 8 U.S.C. § 1101(a)(13)(B), parolees are
not “admitted aliens” but “applicants for admission.” And under §
1225(b)(2)(A), applicants for admission “shall be detailed for a [removal]
proceeding” if an officer determines they are “not clearly and beyond a doubt
entitled to be admitted.” Since parole is a form of relief from detention,
not removal, the court believed that Respondent must put into removal
proceedings all aliens “not clearly and beyond a doubt entitled to be
admitted,” regardless of whether he paroles them. In any event, it held, even
if Respondent had discretion not to remove such parolees, Congress’s clear
intent to foster removal would greatly limit that discretion.

14
 The Ninth Circuit held the regulation invalid in Bona v.

Gonzales after succinctly and expressly adopting Succar and

rejecting Mouelle.32 The Eleventh Circuit ruled last in

Scheerer v. Attorney General, expressly adopting the rationale of

Zheng.33

V. Validity of § 245.1(c)(8)

We agree with Mouelle that § 245.1(c)(8) passes both Chevron

hurdles. Congress did not speak precisely to the issue because

it gave Respondent unreviewable discretion to adjudicate

individual applications. And there is simply no reason why an

agency given such discretion cannot exercise it by rule. Lopez

concurs, and we find Succar’s attempt to distinguish that case

unconvincing for the reasons explained by Zheng. Furthermore, as

explained in Mouelle, INS v. Cardoza-Fonseca does not create some

artificial distinction between eligibility and case-by-case

discretion such that the latter cannot de facto affect, or even

“redefine,” the former. It merely “held that the BIA’s

interpretation of the statute in that case failed because

Congress did not intend the heightened mandatory-withholding

showing to apply to discretionary asylum.”34

32
425 F.3d 663 (9th Cir. 2005)
33
__ F.3d __, Nos. 04-16231 & 05-11303, 2006 WL 947680, at *7 (11th
Cir. Apr. 13, 2006).
34
Mouelle, 416 F.3d at 929-930.

15
 Turning to step two, § 245.1(c)(8) is a reasonable method of

exercising that discretion to facilitate removal. The statutory

structure and history are insufficient to render it unreasonable

because they also highlight Congress’s intent to give Respondent

unreviewable discretion. That is, while Congress certainly

intended to define who is eligible to apply, it just as clearly

intended to let Respondent deny many, some, or all

applications.35 Given the tension between those intents, we

cannot say that Respondent’s interpretation is “unreasonable”

under Chevron.

We are cautioned to mind the practical effect of striking

down § 245.1(c)(8). The question is put, couldn’t the Government

achieve the same result by instructing all IJs or District

Directors to deny all applications from paroled aliens in removal

proceedings after allowing such aliens the formality of applying?

Succar responds that while its holding does not “preclude

[Respondent] from adopting a uniform set of criteria for

35
We note the disagreement over what percentage of paroled aliens are
in removal proceedings. Respondent in Moulle suggested 2-3%, while Succar
thought the number large and Zheng thought it 100%. The evidence in our case
is unclear, although Respondent stated at oral argument that it is less than
100%. In any event, the number is irrelevant because Respondent has
discretion to forbid applications from all paroled aliens in removal
proceedings, or all paroled aliens, or all aliens “inspected and admitted,” or
all aliens “inspected and admitted or paroled.” The size of the precluded
subset is irrelevant, even to the point of the “subset” being the entire set
defined in § 1255. In upholding the regulation, a recent panel of this court
explained that it had no evidence of the size of the subset; furthermore, it
noted that in practice not all paroled aliens were put in removal proceedings.
Momin, 2006 WL 1075235, at *12-*13. We hold the regulation valid even if all
paroled aliens were put in removal proceedings.

16
consideration in evaluating applications,” Respondent “cannot

categorically refuse to exercise discretion favorably for classes

deemed eligible by the statute,” although whether an eligible

alien is in removal proceedings can be a “consideration in the

weighing.”36 But that restraint on Respondent’s discretion is

unclear, requiring the federal courts to police adjudications on

a low level, if not case-by-case,37 in contravention of §

1252(a)(2)(B)(i). Respondent’s reasonable construction of § 1255

allows us to avoid that morass.

We conclude that § 245.1(c)(8) is valid under Chevron.

Respondent has discretion to adjudicate applications for

adjustment of status, and he has done so by a reasonable rule.38

VI. Akhtar’s Remaining Claims

We have disposed of petitioners’ primary claim. Akhtar

makes two others. First, he argues that we should “initiate”

conditional termination of removal proceedings to allow

adjudication of his application for adjustment of status. He

36
Succar, 394 F.3d at 29 n.28 (citing Lopez, 531 U.S. at 249 (Stevens,
J., dissenting)). Petitioners in our case contended similarly at oral
argument.
37
At the very least, we would have to inquire whether the set of
criteria promulgated by Respondent “categorically refuse[d]” as a practical
matter eligibility to an otherwise eligible class. Would precluding 90% of
the class invalidate the criteria? 95%? And even if the criteria were
acceptable, but nobody in the class received relief, would we have to inquire
whether some unofficial rule or practice was improperly influencing the
exercise of discretion?
38
We do not rely on the IIRIRA in upholding the regulation. Respondent
could have validly promulgated § 245.1(c)(8) before the enactment of that
statute.

17
cites no authority for this request, and, finding no basis for

terminating removal proceedings, we dismiss that claim for lack

of jurisdiction. Second, he urges us to reverse the IJ’s denial

of his application for cancellation of removal. Following our

precedent, we conclude that we cannot review that discretionary

determination and dismiss that claim for lack of jurisdiction as

well.39

We AFFIRM the judgments of the Board of Immigration Appeals.

39
See Moosa v. INS, 171 F.3d 994, 1011-12 (5th Cir. 1999).

18