NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 23-1577
_____________
NAEEM AKHTAR,
Appellant
v.
DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES MT.
LAUREL FIELD OFFICE; ACTING DIRECTOR UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES; SECRETARY UNITED STATES DEPARTMENT
OF HOMELAND SECURITY
_________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-21-cv-00658)
District Judge: Honorable Georgette Castner
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on January 30, 2024
Before: CHAGARES, Chief Judge, RESTREPO, and FREEMAN, Circuit Judges
(Filed: April 3, 2024)
_________
OPINION *
_________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
RESTREPO, Circuit Judge
Naeem Akhtar appeals the District Court’s order granting summary judgment to
U.S. Citizenship and Immigration Services (USCIS) officials and reaffirming USCIS’s
denial of Ahktar’s application for naturalization. To prevail, Akhtar must prove by a
preponderance of the evidence that he meets the requirements for naturalization. 8 U.S.C.
§ 1361; 8 C.F.R. § 316.2(b). Because we agree with the District Court’s determination
that Akhtar has not met this burden, we will affirm.
I.
Akhtar is a native and citizen of Pakistan who resides in New Jersey. He first
entered the United States at the Canadian border without inspection and admission or
parole, on or about September 4, 1999. In 2005, Akhtar applied for temporary resident
status and was granted advance parole for the period of September 22, 2005 to September
21, 2006. Akhtar never left the United States during the designated period, but he married
a U.S. citizen on July 5, 2006. His spouse filed a petition to classify Akhtar as an
immediate relative, which USCIS granted on July 19, 2007. Akhtar’s 2005 application
for temporary resident status was ultimately denied in August 2007.
On May 7, 2010, Akhtar applied for advance parole and adjustment of status to
that of lawful permanent resident. USCIS granted Akhtar advance parole on June 10,
2010. He departed the United States for Pakistan on June 21, 2010 to visit his mother,
who was then suffering from a serious illness. Akhtar was inspected and paroled into the
United States upon his return on July 26, 2010, to resume the processing of his pending
adjustment of status application. USCIS granted Akhtar’s application for adjustment of
2
status on March 12, 2013.
Akhtar filed a petition for naturalization in December 2017. On December 17,
2018, USCIS denied the petition, finding Akhtar had no lawful nonimmigrant status
when he applied for adjustment of status on May 7, 2010. Following Akhtar’s request for
a hearing, USCIS reaffirmed its denial of his naturalization application on October 30,
2020. On January 13, 2021, Akhtar filed a complaint in the U.S. District Court for the
District of New Jersey, seeking de novo review of his application for naturalization
pursuant to 8 U.S.C. § 1421(c). The District Court issued a decision and order on
February 27, 2023, granting the government’s motion for summary judgment. Akhtar
timely appealed.
II. 1
We review the District Court’s grant of summary judgment de novo, viewing the
facts in the light most favorable to the nonmoving party, Smith v. Mensinger, 293 F.3d
641, 647 (3d Cir. 2002), but limit our review to the denial of Akhtar’s naturalization
application, 8 U.S.C. § 1421(c). An applicant for naturalization has the burden of proving
“by a preponderance of the evidence that he or she meets all of the requirements for
naturalization.” 8 C.F.R. § 316.2(b); 8 U.S.C. § 1361.
Akhtar argues that he met this burden because the USCIS adjudicator who
approved his application for adjustment of status had the discretion and authority to
1
The District Court had jurisdiction to review the denial of Akhtar’s
naturalization application pursuant to 8 U.S.C. § 1421(c). This Court has jurisdiction
pursuant to 28 U.S.C. § 1291.
3
conclude that Akhtar satisfied the requirements for lawful permanent residence under
8 U.S.C. § 1255(a) based on either his 2005 grant of advance parole or his 2010
inspection and parole. We disagree.
Lawful admission for permanent residence is among several requirements for
naturalization. See 8 U.S.C. §§ 1427(a) and 1429. An applicant 2 for adjustment of status
to that of lawful permanent resident must have been “inspected and admitted or paroled
into the United States.” 3 8 U.S.C. § 1255(a). “A ‘paroled’ [noncitizen] is one who is
temporarily permitted to remain in the United States pending a decision regarding his
application for admission.” Bamba v. Riley, 366 F.3d 195, 196 n.2 (3d Cir. 2004) (citing
2
Applicants must be eligible for a requested benefit at the time of filing and
remain eligible throughout adjudication. 8 C.F.R. § 103.2(b)(1). We are unpersuaded by
Akhtar’s argument that 8 C.F.R. § 103.2 conflicts with our holding in Robinson v.
Napolitano, 554 F.3d 358 (3d Cir. 2009). In Robinson, we held “eligibility for an
immediate relative visa depends upon the [noncitizen]’s status at the time USCIS
adjudicates the I-130 petition, not when that petition was filed.” Id. at 364. We did not
address the “inspected and admitted or paroled” requirement in 8 U.S.C. § 1255 or the
requisite “lawfully admitted” standard for naturalization under 8 U.S.C. § 1429, which
are at issue here.
3
The “inspected and admitted or paroled” requirement must be satisfied before a
noncitizen applies for adjustment of status. USCIS Policy Manual, Vol. 7, Part B, Ch. 2.A
(citing 8 C.F.R. § 245.1(b)(3)); legacy INS General Counsel Opinion 94-28, 1994 WL
1753132, at *1 (“Congress enacted Sec. 245 in such a manner that persons who entered
the United States without inspection are ineligible to adjust.”); S. Rep. 86-1651, 1960
U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the [noncitizen] who has
entered the United States in violation of the law.”); and id. at 3137 (“The wording of the
amendment is such as not to grant eligibility for adjustment of status to . . . [noncitizens]
who entered the United States surreptitiously.”)).
4
8 U.S.C. § 1182(d)(5)). 4 When used to enter the United States initially or after travel,
parole “amounts to permission . . . for ingress into the country but is not a formal
‘admission.’” Id. (quoting Chi Thon Ngo v. INS, 192 F.3d 390, 392 n.1 (3d Cir. 1999)).
Noncitizens who are present in the United States without having been admitted or
paroled are considered inadmissible applicants for admission. 5 See 8 U.S.C. § 1225(a)(1);
§ 1182(a)(6)(A)(i). Applicants for admission may request parole under 8 U.S.C.
§ 1182(d)(5)(A), which gives the Secretary of Homeland Security authority to parole
from custody a noncitizen applying for admission who would otherwise be held in
custody until the Department of Homeland Security had resolved whether to admit or
remove them. Id. This authority is discretionary and exercised “on a case-by-case basis,”
upon finding either that “urgent humanitarian reasons” justify the parole, or that parole
will yield a “significant public benefit.” Id.
Advance parole is an administrative procedure whereby the government decides in
advance of a noncitizen’s arrival that the individual will be paroled into the United States
upon arrival at a port of entry. See 8 C.F.R. § 212.5(f). Advance parole is often “granted
4
A noncitizen is paroled if “[t]hey are seeking admission to the United States at a
port of entry” and “[a]n immigration officer inspected them as a[] [noncitizen] and
permitted them to enter the United States without determining whether they may be
admitted into the United States.” 7 USCIS Policy Manual, Pt. B, Ch. 2.A.3.
5
A noncitizen who entered the United States without inspection may be eligible
for adjustment of status under Section 1255(i) only if the applicant is the beneficiary of a
petition or labor certification filed on or before April 30, 2001 and complies with certain
filing and fee payment requirements. 8 U.S.C. § 1255(i).
5
to [noncitizens] residing in the United States who have a need to travel abroad, but whose
immigration status would not afford them a right to legal admission upon their return.”
Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir. 2007).
Noncitizens in the United States who have a pending application for adjustment of
status commonly seek advance parole to obtain a means of departing and returning
without abandoning their application. See 8 C.F.R. § 245.2(a)(4)(ii)(A) (“[T]he departure
of an [adjustment] applicant . . . shall be deemed an abandonment of the application
constituting grounds for termination of any pending application for adjustment of status,
unless the applicant was previously granted advance parole . . . and was inspected upon
returning to the United States.”). Applicants who seek temporary departure for emergent
personal reasons during the pendency of an application are one of the few classes of
noncitizens who are eligible for advance parole. See USCIS Policy Manual, Vol. 11, Part
E (Adjudicator’s Field Manual Ch. 54.3(a)(3)).
While advance parole functions as permission to travel for a specified
humanitarian purpose and thereafter return to the United States, the actual decision to
parole is discretionary, 8 U.S.C. § 1182(d)(5)(A), and is made at the port of entry. See 71
Fed. Reg. 27,585, 27,586 n.1 (May 12, 2006). Thus, inspection at a port of entry is a
mandatory component of parole, except in the rare circumstance that an applicant has
requested and been granted parole in place. Parole in place is granted sparingly and is
6
generally reserved for active and former U.S. military members and their families. See
USCIS Policy Manual, Vol. 7, Part B, Ch. 2.A.3. 6
III.
Akhtar is unable to demonstrate that he is eligible for naturalization because he
cannot demonstrate that he was lawfully admitted to the United States for permanent
residence. See Koszelnik v. Sec’y of Dep’t of Homeland Sec., 828 F.3d 175, 179 (3d Cir.
2016). “[T]he term ‘lawfully’ denotes compliance with substantive legal requirements,
not mere procedural regularity[.]” Gallimore v. Att’y Gen., 619 F.3d 216, 223 (3d Cir.
2010) (citation omitted).
Akhtar was inadmissible when he first entered the United States in 1999 because
he was not then inspected and admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).
Although he was granted advance parole in 2005, Akhtar did not leave the country at that
time and was never inspected at a port of entry where a decision to parole could be made.
We lack the authority to construe this discretionary grant of advance parole as parole in
place. See 8 U.S.C. § 1252(a)(2)(B)(ii). Leastwise, Akhtar has provided no evidence that
6
See also U.S. Dep’t Homeland Sec., U.S. Citizenship & Immigr. Servs, Parole
of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the
Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces
or Selected Reserve of the Ready Reserve and the Effect of Parole on
Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i), Policy
Memorandum, November 15, 2013, available at
https://www.uscis.gov/sites/default/files/document/memos/2013-
1115_Parole_in_Place_Memo_.pdf (discussing reasons for use of parole in place for
United States military service members and veterans, who experience stress and anxiety
due to their family members’ immigration status, which can affect military preparedness).
7
he was eligible to receive this rare privilege through affiliation with the United States
Armed Forces.
Accordingly, Akhtar remained inadmissible when he applied for adjustment of
status on May 7, 2010 because he had not been inspected and paroled. An applicant for
adjustment of status must possess a lawful status from which to adjust. See 8 U.S.C. §
1255(c) (“[S]ubsection (a) shall not be applicable to . . . a[] [noncitizen] . . . who is in
unlawful immigration status on the date of filing the application for adjustment of
status . . . .”). Having no lawful nonimmigrant status, Section 1255(c) barred Akhtar from
adjustment of status under Section 1255(a) until he married a U.S. citizen and became an
immediate relative. See 8 U.S.C. §§ 1151(b), 1255(c)(2). But even then, Akhtar remained
ineligible due to his inadmissibility. See 8 U.S.C. § 1255(a) (“The status of a[]
[noncitizen] who was inspected and admitted or paroled into the United States . . . may be
adjusted . . . [if] the [noncitizen] is eligible to receive an immigrant visa and is admissible
to the United States for permanent residence . . . .” (emphasis added)).
Notwithstanding his ineligibility, Akhtar could only obtain advance parole for
emergent humanitarian reasons (i.e., his mother’s declining health) in connection with a
pending application for admission. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R.
§ 245.2(a)(4)(ii)(A). But Akhtar did not cure his inadmissibility until July 26, 2010 when
he was inspected and paroled at a port of entry, months after he submitted his application.
See Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782, 785 (3d Cir. 2010) (“[O]nly if a[]
[noncitizen] has been admitted or paroled into the United States does []he become
eligible to adjust h[is] status.” (internal quotations omitted)).
8
USCIS’ approval of Akhtar’s application for adjustment of status does not satisfy
the requirement that an applicant for naturalization be “lawfully admitted for permanent
residence.” See 8 U.S.C. §§ 1427(a), 1429. We are bound by our precedents, which hold
that “even in cases not involving fraud, a grant of permanent resident status does not meet
the standard of ‘lawful admission’ if the applicant was not legally entitled to it for any
reason.” Koszelnik, 828 F.3d at 180 (citing Gallimore, 619 F.3d at 224). Having exceeded
the statute of limitations for revocation, Akhtar’s status as lawful permanent resident is
now vested. See 8 U.S.C. § 1256(a); Garcia v. Att’y Gen. of U.S., 553 F.3d 724, 728 (3d
Cir. 2009). But this does not mean that Akhtar is lawfully eligible for naturalization.
IV.
For the foregoing reasons, we will affirm the District Court’s order.
9