[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 25, 2008
No. 07-12813 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A35-958-196
DONOVAN EARL CRAWFORD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 25, 2008)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Donovan Earl Crawford appeals the determination of the Board of
Immigration Appeals (“BIA”) that he is ineligible for adjustment of status pursuant
to 8 C.F.R. § 1245.2(a)(ii). On appeal, Crawford argues that Sections 245(a) and
245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(a), (i),
permit him to adjust his status and that he meets the requirements of 8 C.F.R.
§ 1245.2(a)(ii) for an Immigration Judge (“IJ”), rather than the United States
Citizenship and Immigration Services (“USCIS”), to consider his application for an
adjustment of status. We affirm.
REGULATORY BACKGROUND
“The status of an alien who was inspected and admitted or paroled into the
United States . . . may be adjusted by the Attorney General, in his discretion and
under such regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence . . . .” 8 U.S.C. § 1255(a). To be eligible for adjustment
of status, an applicant must meet two statutory requirements: the alien must be
“eligible to receive an immigrant visa,” and an immigrant visa must be
“immediately available” at the time that the application for an adjustment of status
is filed. 8 U.S.C. § 1255(a).
In April 2006, we invalidated 8 C.F.R. § 1245.1(c)(8), which barred arriving
aliens in removal proceedings from applying for adjustments of status. Scheerer v.
U.S. Att’y Gen., 445 F.3d 1311, 1319–1320 (11th Cir. 2006). We found that the
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statute enabling the regulation was ambiguous as to whether the Attorney General
could regulate the eligibility of aliens to apply for adjustments of status. Id. at
1321. The enabling statute, however, indicated that parolees, who qualify as
arriving aliens, would be eligible to apply for adjustments of status. Id. We held
that this intent, that aliens in removal proceedings be eligible to apply for
adjustments of status, was negated by the Attorney General’s regulation. Id. at
1322. Agreeing with the Third Circuit, we stated that “while the statute may be
ambiguous enough to allow for some regulatory eligibility standards, it does not so
totally abdicate authority to the Attorney General as to allow a regulation . . . that
essentially reverses the eligibility structure set out by Congress.” Id. Thus, we
stated that the Attorney General’s regulation was based on an impermissible
construction of the governing statute because it barred almost all paroled aliens
from eligibility. Id.
On May 12, 2006, the Attorney General amended 8 C.F.R. § 1245.2(a)(1)(ii)
to state that in the case of an arriving alien who is placed in removal proceedings,
the IJ does not have jurisdiction to adjudicate an application for adjustment of
status unless:
(A) The alien properly filed the application for
adjustment of status with USCIS while the arriving alien
was in the United States;
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(B) The alien departed from and returned to the United
States pursuant to the terms of a grant of advance parole
to pursue the previously filed application for adjustment
of status;
(C) The application for adjustment of status was denied
by USCIS; and
(D) [The Department of Homeland Security] placed the
arriving alien in removal proceedings either upon the
arriving alien’s return to the United States pursuant to the
grant of advance parole or after USCIS denied the
application.
8 C.F.R. § 1245.2(a)(1)(ii). We recently upheld this regulation. Scheerer v. U.S.
Att’y Gen., Nos. 06-14192, 06-15971, 2008 WL 131466, at *5 (11th Cir. Jan 15,
2008) (“Scheerer II”).
Further, the Attorney General’s amended rule is applicable to all cases
pending administrative or judicial review on or after May 12, 2006, as is the case
here. Eligibility of Arriving Aliens in Removal Proceedings to Apply for
Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment
of Status. 71 Fed. Reg. 27,588 (May 12, 2006); Scheerer II, 2008 WL 131466, at
*2.
FACTUAL BACKGROUND
Crawford is a native and citizen of Jamaica who was at one point apparently
a legal permanent resident of the United States. He abandoned that status when he
returned to Jamaica in 1992 but was paroled into the United States some years later
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to pursue an adjustment of his status pursuant to an I-130 Petition for Alien
Relative filed by his first spouse, a United States citizen. Crawford claims that the
I-130 petition was approved and that an immigration officer approved the
adjustment of his status. He claims, however, that when he checked in on the
progress of his petition, he was told that his file had been lost. At the final of
several follow-up meetings, he apparently informed an immigration officer that he
was no longer married to his first wife, at which point his application for an
adjustment of his status was denied. He was subsequently placed in removal
proceedings.
On June 9, 2003, Crawford was served with a Notice to Appear, charging
him under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as being an immigrant at the time of his
application for admission whose visa had been issued without compliance with the
provisions of Section 203 of the INA. On February 27, 2004, Crawford’s
daughter, a United States citizen, filed an I-130 petition on his behalf. At a hearing
on April 29, 2004, Crawford denied that he was removable on the basis of the
allegedly approved application for adjustment of his former wife. The Department
of Homeland Security allowed Crawford to conditionally concede that he was
removable, subject to a later determination that he had in fact been approved for an
adjustment. On the basis of that admission, the IJ found Crawford removable.
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The petition of Crawford’s daughter was approved on February 11, 2005,
and on May 12, 2005, Crawford filed an application to adjust his status with the
USCIS. He then appeared before an IJ for a hearing on the merits of his
application wherein he asked the IJ to renew his application for an adjustment of
his status on the basis of the newly filed I-130 petition. An Immigration and
Customs Enforcement officer argued that Crawford was not eligible to argue for an
adjustment of his status because he was an arriving alien in a removal proceeding
and that the I-130 petition filed by his daughter was separate from that filed by his
first wife. The IJ agreed on the basis of the bar on such applications by arriving
aliens which we later held invalid and which was later amended by the Attorney
General. Crawford filed a notice of appeal with the BIA. On December 11, 2006,
after the Attorney General amended the relevant regulation as discussed above,
Crawford, not having filed an appellate brief, asked the BIA to remand his case to
the IJ for consideration of his application in light of the regulatory amendment.
The BIA declined to do so, concluding that Crawford did not fit within the narrow
exception that had been added to the regulation that originally barred Crawford’s
application. He appeals from that determination.
STANDARD OF REVIEW
When, as here, the BIA issues its own opinion without expressly adopting
the IJ’s decision, we review only the BIA’s decision. Morales v. U.S. Att’y Gen.,
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488 F.3d 884, 890 (11th Cir. 2007). To the extent that the BIA’s decision was
based on a legal determination, we review de novo. Mohammed v. Ashcroft, 261
F.3d 1244, 1247–48 (11th Cir. 2001). We review the BIA’s factual determinations
under the substantial-evidence test, and we “must affirm the BIA’s decision if it is
‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–1284 (11th
Cir. 2001) (quoting Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)).
We review our subject matter jurisdiction de novo. Ortega v. U.S. Att’y
Gen., 416 F.3d 1348, 1350 (11th Cir. 2005). Failure to raise an issue before the
BIA leaves us without jurisdiction to hear the issue. Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250–1251 (11th Cir. 2006) (finding that the petitioner
failed to challenge adverse credibility finding in both his notice of appeal and his
brief to the BIA). “When an appellant fails to offer argument on an issue, that
issue is abandoned.” Sepulveda v. U.S. Att’y Gen, 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005). Section 242(a)(2)(B)(i) of the INA “precludes appellate review of
discretionary decisions, but does not preclude review of non-discretionary legal
decisions that pertain to statutory eligibility for discretionary relief.” Gonzalez-
Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Further, we
have jurisdiction to consider questions of law raised in petitions challenging
removal orders. 8 U.S.C. § 1252(a)(2)(D).
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DISCUSSION
The BIA did not err in determining that Crawford is ineligible for an
adjustment of status under the Attorney General’s amended regulation, 8 C.F.R.
§ 1245.2(a)(1)(ii). Crawford was paroled into the United States and later placed
into removal proceedings in 2003 and is, therefore, an arriving alien in removal
proceedings. The IJ, and thus, the BIA, do not have jurisdiction to consider
Crawford’s application for an adjustment of status unless he fits within the narrow
exception to the Attorney General’s regulation under 8 C.F.R. § 1245.2(a)(1)(ii).1
Crawford does not fit within the exception because he had not been paroled
into the United States to pursue the application for adjustment initiated by his
daughter’s I-130 petition. Rather, he had been paroled in to pursue the petition for
adjustment initiated by the I-130 petition filed by his former wife, which was
denied when he informed an immigration officer that he was divorced.
Crawford alternatively argues that he was the recipient of an I-130 petition
filed before April 30, 2001, and therefore that he should have been “grandfathered-
in” under Section 245(i) of the INA, which provides a separate avenue for certain
1
In light of our affirmance of the BIA’s determination that Crawford does not fit within the
exception of 8 C.F.R. § 1245.2(a)(1)(ii), it appears that Crawford, in order to have his
application for an adjustment properly considered, must file it with the USCIS, which “has
jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the
immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).”
8 C.F.R. § 245.2(a)(1). It is of note, however, that Crawford has been found removable on the
basis of his conditionally offered admission of removability. Presumably the appropriate
authorities will stay Crawford’s removal pending the USCIS’s consideration of his application.
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aliens to petition for an adjustment of status. The government responds that we
lack jurisdiction to consider the argument as Crawford abandoned it by failing to
raise it before the BIA. Crawford’s notice of appeal to the BIA properly raises the
argument. See, e.g., Amaya-Artunduaga, 463 F.3d at 1250 (“In the instant case,
Amaya failed to challenge the IJ’s adverse credibility determination in both his
notice of appeal and brief before the BIA.”) (emphasis added). Jurisdiction is
therefore proper; however, the BIA did not expressly address the argument.
The Supreme Court has explained that in cases on appeal where the BIA has
not addressed a particular issue that a petitioner put before it, “the proper course,
except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)
(internal quotation marks omitted). In Calle v. U.S. Attorney General, 504 F.3d
1324, 1330 (11th Cir. 2007), we found that “rare circumstances” were present in an
appeal because the issue the BIA failed to address was legal in nature and required
an “objective, procedural inquiry” concerning whether the petitioner specified
errors of law and supported them with pertinent authority or did not. Thus, we felt
comfortable deciding an issue left unresolved by the BIA in the first instance. Id.
We feel similarly comfortable here. Although the BIA did not expressly
determine whether Section 245(i) of the INA affords relief to Crawford, it did in
essence decide as much. It concluded that Crawford is barred from applying to
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adjust his status before an IJ because he is an arriving alien in removal proceedings
who does not fit within a narrow exception to the bar. We see no reason why that
legal bar to his application for an adjustment of status, which the BIA applied to
his claim under Section 245(a) of the INA, does not also bar his application under
Section 245(i), which is simply an alternative method for aliens to seek similar
relief. Although Crawford treats Section 245(i) as a separate form of relief, 8
C.F.R. § 1245.2(a)(1)(ii) applies to arriving aliens in removal proceedings who
attempt to apply for adjustment of status.
Finally, Crawford abandoned any argument relating to his motion to remand
by failing to raise it in his initial brief. Accordingly, we deny the petition.
PETITION DENIED.
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