United States Court of Appeals
For the First Circuit
No. 03-2445
WISSAM SUCCAR,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
Lipez, Circuit Judge.
Saher J. Macarius for petitioner.
Anthony P. Nicastro, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, Barry J. Pettinato, Senior
Litigation Counsel, and Anthony C. Payne, Attorney, Office of
Immigration Litigation, Civil Division, United States Justice
Department, were on brief, for respondent.
Mary Kenney, with whom Nadine K. Wettstein, American
Immigration Law Foundation, Iris Gomez, and Massachusetts Law
Reform Institute were on brief, for The American Immigration Law
Foundation, Massachusetts Law Reform Institute, Massachusetts
Immigrant and Refugee Advocacy Coalition, International Institute
of Boston, and The Harvard Immigration and Refugee Clinic of
Greater Boston Legal Services, amici curiae.
January 5, 2005
LYNCH, Circuit Judge. This case raises issues of first
impression in immigration law as to the validity of a regulation
promulgated in 1997 by the Attorney General, 8 C.F.R. §
245.1(c)(8). The regulation redefines certain aliens as ineligible
to apply for adjustment of status to lawful permanent residents
whom a statute, 8 U.S.C. § 1255(a), defines as eligible to apply.
Under that regulation, the Attorney General will not consider an
application for adjustment of status from the entire category of
aliens who have been granted parole status but have been placed in
removal proceedings.
The essence of the Attorney General's argument is that
since he has been given ultimate discretion to deny adjustment of
status after application, the validity of the regulation is itself
not subject to judicial review, and, if it were, the regulation
must be upheld as a permissible exercise of that ultimate
discretion. We disagree on both points. We hold that there is no
statutory bar to review and that the regulation is contrary to the
language and intent of the statute, 8 U.S.C. § 1255(a). As a
result, we vacate the order removing Wissam Succar from the United
States and remand for further proceedings.
Our reasons, which we explain in more depth below, are as
follows. The mere fact that a statute gives the Attorney General
discretion as to whether to grant relief after application does not
by itself give the Attorney General the discretion to define
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eligibility for such relief. That is clear from INS v. Cardoza-
Fonseca, 480 U.S. 421, 443 (1987). Courts must still interpret the
statute. Where the statute is silent on eligibility, the agency
involved may reasonably choose to exercise its discretion to
withhold relief by excluding certain persons from eligibility for
such relief. Lopez v. Davis, 531 U.S. 230 (2001).
Here, the statute is not silent -- it defines persons who
have parole status as eligible for adjustment of status and does
not carve out an exception for parolees who are in removal
proceedings. See 8 U.S.C. § 1255. That lack of a carve out for
parolees in removal proceedings is itself significant, given that
the statute contains a number of carve outs as to eligibility for
adjustment of status. Some carve outs exclude persons from
eligibility to apply who would otherwise meet more general
eligibility requirements. Further, other carve outs create
eligibility in persons otherwise ineligible. Congress thus has
created a comprehensive scheme.
Viewing the larger statutory context, we find Congress
has also been explicit about where the Attorney General has been
granted discretion and where he has not. By contrast with other
areas, there is no explicit grant of discretion to redefine
eligibility to apply for adjustment of status of parolees to
exclude those in removal proceedings. Congress did not place the
decision as to which applicants for admission are placed in removal
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proceedings into the discretion of the Attorney General, but
created mandatory criteria. See 8 U.S.C. §§ 1225(b)(1), (2). In
addition, persons cannot be granted paroled status at all if they
pose a security risk; they are to be ordered removed and this order
must be reported to the Attorney General. 8 U.S.C. § 1255(c)(1).
The statutory scheme reflects Congress's careful
balancing of the country's security needs against the national
interests Congress wished to advance through adjustment of status
proceedings. The regulation upsets the balance Congress created.
Checking our construction of the statute against the
legislative history of section 1255, we find the regulation to be
inconsistent with the intent expressed in the statute. In 1960,
when Congress included paroled aliens as aliens who are eligible
for adjustment of status relief through section 1255, it did so to
solve certain problems, which we describe later. The effect of the
regulation is to re-institute the problems Congress wished to
solve. Further, until the 1997 promulgation of the regulation, the
Attorney General had consistently interpreted section 1255 in a
manner consistent with the statute and the legislative history and
inconsistent with the 1997 regulation.
In response to the Attorney General's argument that the
1996 enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) justifies the 1997 regulation, we note
the Attorney General's concession that IIRIRA, which altered so
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much of the immigration laws, left untouched the language of
section 1255, as enacted in 1960, on the matter in question. That
being so, the relevance of the Attorney General's remaining
arguments, largely based on general policy said to be embodied in
IIRIRA, is doubtful. To the contrary, IIRIRA tends to strengthen,
not weaken, the petitioner's claim that the regulation is invalid.
Finally, the purported policy justifications of expediting removal
of aliens and administrative ease must give way to clear
congressional intent.
I.
Wissam Succar is a native and citizen of Lebanon. Succar
arrived at Miami International Airport on October 21, 1998, when
his flight from Lebanon to Panama stopped in the United States. He
approached an official at the airport, stating that he wished to
apply for asylum.
An immigration officer questioned Succar at the airport.
Because Succar did not have the proper documentation for admission,
he was taken into government custody and held at the Krome
detention facility in Miami, Florida. An asylum pre-screening
officer met with Succar on November 19, 1998, and determined that
he had a credible fear of persecution based on his involvement with
the Christian militias in Lebanon. The officer found that the
facts as recounted by Succar could establish his eligibility for
asylum and a credible fear of harm on the basis of an imputed
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political opinion. Succar was placed into removal proceedings and
was subsequently paroled into the United States on November 30,
1998. Succar has remained in parole status.
Over one year later, on January 19, 2000, Succar admitted
the allegations in the Notice to Appear and conceded removability;
he renewed his application for asylum, withholding of removal, and
protection under the Convention Against Torture. On March 1, 2000,
a hearing was held on his asylum application and the trial was set
for April 18, 2000. On April 18, after a hearing on the merits of
his application, the Immigration Judge (IJ) denied Succar's request
for asylum and withholding of removal. Succar appealed this
decision to the Board of Immigration Appeals (BIA).
On February 19, 2001, while his appeal was pending before
the BIA and while he was paroled into the United States, Succar
married a United States citizen. Succar's wife filed an immigrant
visa petition for him, and the petition was approved on April 26,
2001. The approval form directed Succar to contact the local INS
office to obtain Form I-485, the application for adjustment of
status to a permanent resident. Believing that he met the
statutory eligibility requirements for adjustment of status, on
October 17, 2001, Succar filed a motion with the BIA to remand the
proceedings to the IJ for consideration of his application for
adjustment of status under 8 U.S.C. § 1255(a). This motion was
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unopposed by the INS.1 The BIA granted the motion on December 18,
2001 and remanded the case to the IJ for further proceedings. The
remand proved to be fruitless for the INS soon took the position
that under 8 C.F.R. § 245.1,2 Succar was ineligible to apply for
adjustment of status either before the IJ in the removal
proceedings or, separately, before the Immigration Service’s
district director.
At a July 29, 2002 hearing, Succar submitted his
adjustment of status application to the IJ. In the middle of the
hearing, the IJ stated that based on 8 C.F.R. § 245.1, "I am
confident that I don't have the authority to adjust status to
someone who's an arriving alien." The IJ denied the adjustment of
status application as a matter of law, and then continued, "The
Immigration Service doesn't have the authority to adjust his status
unless they are willing to terminate this case with me and if that
be the case, I'll happily do it but I don't have the authority to
1
In March 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security and reorganized
into the Bureau of Immigration and Customs Enforcement. We refer
to the immigration agency throughout as the INS. Mukamusoni v.
Ashcroft, 390 F.3d 110, 113 n.1 (1st Cir. 2004).
2
8 C.F.R. § 245.1(c)(8) is identical to 8 C.F.R. §
1245.1(c)(8). Section 245.1(c)(8) applies to the immigration
agencies in the Department of Homeland Security. Section
1245.1(c)(8) applies to the Executive Office for Immigration Review
in the Department of Justice. This case concerns the validity of
8 C.F.R. § 245.1(c)(8).
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terminate . . . ." In his oral decision of the same day, the IJ
stated:
The respondent is an arriving alien and,
therefore, he is not eligible to adjust status
before the Immigration Judge. Additionally
the respondent is not eligible to adjust
status before the District Director of the
Immigration Service in that he is in [removal]
proceedings. As I indicated to both counsel,
if the Immigration Service wished to have me
terminate these proceedings or even to
conditionally terminate them, I would have
done so in order to afford the Immigration
Service an opportunity to see whether an
adjustment of status ought to be granted.
However, that was not agreed to by the
Immigration Service counsel.
The regulations provide under 8 C.F.R. Section
245.1(c)(8) that any arriving alien who is in
removal proceedings pursuant to Section
235(b)(1) or Section 240 of the Act is
ineligible to adjust status.
The IJ also reaffirmed the previous order of removal to Lebanon.
The petitioner appealed both parts of the IJ's decision
to the BIA, and on September 24, 2003, the BIA affirmed the IJ's
determination in full. On the adjustment of status issue, the BIA
concurred with the IJ that Succar was "ineligible for adjustment of
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status because he is an "arriving alien."3 Succar timely appealed
the BIA’s decision to this court.
II.
We set the issues in the broader context of the
requirements of immigration law.
A. Classes of Aliens
Before 1996, non-citizens were divided into two
categories: (a) applicants for admission and (b) non-citizens
present in the United States who had previously made an entry into
the country either with, or without, an inspection. An applicant
for admission, also called an arriving alien, was an individual
seeking admission who had not yet entered the country.4 After an
inspection, if an applicant was not admitted, he or she was subject
to an exclusion proceeding to determine admissibility into the
United States. The second category, non-citizens who had
3
The BIA also affirmed Succar's order of removal. The Board
agreed with the IJ "that [Succar] has failed to meet his burden of
proof in that he was not credible and did not provide detailed
testimony with which to conclude that he was or would be persecuted
upon return to Lebanon." The BIA also rejected Succar's claim that
the translation during the evidentiary hearing was inadequate,
finding that there was "no evidence to suggest that the respondent
was precluded from presenting testimony or that he was somehow
prejudiced." Succar does not challenge the BIA's affirmance on the
merits of the order of removal in this court, but does challenge
the order of removal insofar as it precludes decision in the United
States of his adjustment of status application. The respondent
makes no argument that this somehow removes from the case the issue
of the validity of the regulation, but defends on the merits.
4
An "applicant for admission" may be physically present in the
country but not yet have "entered" for immigration purposes.
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previously made an entry, were treated as being present in the
United States. They were subject to deportation proceedings to
determine whether they would be deported or admitted to stay.
In 1996, Congress passed IIRIRA. See generally Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999);
Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998). Among many other
changes, Congress eliminated the definition of the term "entry" and
replaced it with the terms "admission" and "admitted." See IIRIRA,
Pub. L. No. 104-208, 110 Stat. 3009-575 (1996). Admission and
admitted now include only "the lawful entry of the alien into the
United States after inspection and authorization by an immigration
officer." 8 U.S.C. § 1101(a)(13)(A)(emphasis added). The main
impact of this change is to re-characterize aliens who are present
in the United States, but who have not been inspected and admitted.
They are now considered "applicants for admission" along with other
arriving aliens. The statute requires that all aliens who are
seeking admission or readmission to the United States be inspected
by immigration officers, prior to a determination of their status.
See 8 U.S.C. § 1225(a)(3).
Congress also eliminated deportation and exclusion
proceedings and replaced them with removal proceedings, which were
applicable to all aliens who were (1) in the United States without
an inspection, (2) inspected and not admitted, or (3) previously
admitted but now subject to removal. See 8 U.S.C. §§ 1225(b)(2),
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1227(a). Special removal proceedings were established for two
types of individuals arriving in the United States: those who are
(1) suspected of being terrorists or a security threat, 8 U.S.C. §
1225(c), or (2) stowaways, 8 U.S.C. § 1225(a)(2). Congress
established expedited removal proceedings for arriving non-citizens
who are charged as inadmissible due to lack of proper documents or
material misrepresentations at entry. See 8 U.S.C. § 1225(b)(1).
Expedited removal proceedings provide little opportunity for
relief; however, aliens in this situation can seek asylum. See 8
U.S.C. § 1225(b)(1)(A). If the alien alleges a credible fear based
on one of the statutory grounds, she receives an interview with an
asylum pre-screening officer. If the officer finds that she has
alleged facts sufficient to justify a credible fear, then the alien
will be referred to an immigration judge. 8 C.F.R. § 235.3(b)(4);
8 C.F.R. § 235.6(a)(1)(ii).
The last type of proceeding is the standard removal
proceeding for persons present in the United States, regardless of
whether they are applicants for admission or have been living in
the United States previously. 8 U.S.C. § 1225(b)(2); 8 U.S.C. §
1229a. Congress did not restrict the type of relief available to
individuals in removal proceedings under section 1229a.
Significantly, the statute does not by its terms prevent this class
of individuals from applying for adjustment of status.
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B. Adjustment of Status
Adjustment of status is "a technical term describing a
process whereby certain aliens physically present in the United
States may obtain permanent resident status . . . without leaving
the United States." 3B Am. Jur. 2d Aliens & Citizens § 2134.
Before 1960, adjustment of status in the United States was only
available to non-citizens legally in the country. See Immigration
and Nationality Act, Pub. L. No. 414, 66 Stat. 217 (1952)(INA).
Any immigrant present in the United States who was eligible for
adjustment of status, but who was no longer in valid immigration
status, had to obtain an immigrant visa at a United States post
abroad in order to obtain permanent resident status. See S. Rep.
No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3136. To
process the immigrant visa at the consular post abroad, an
immigrant residing in the United States had to apply to the INS for
preexamination and voluntary departure in order to insure that he
would be able to be readmitted into the country once he obtained
the immigrant visa. See id.
In 1960, Congress established the current procedure for
adjustment of status to obviate the need for departure and reentry
for aliens temporarily in the United States. Congress explicitly
expanded the group of individuals eligible for adjustment of status
to include all aliens who have been "inspected and admitted or
paroled." See Joint Resolution of July 14, 1960, Pub. L. No. 86-
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648, 74 Stat. 505 (codified as amended at 8 U.S.C. § 1255(a)) ("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 . . .
.") (emphasis added).
"Admitted aliens" means individuals who have presented
themselves for inspection by an immigration officer and who have
been allowed to enter the country. See 8 U.S.C. § 1101(a)(13)(A).
"Paroled aliens" are otherwise inadmissible aliens who are given
permission by the Attorney General to enter temporarily. 8 U.S.C.
§ 1182(d)(5)(A). The statute governing parole states:
The Attorney General may, except as provided
in subparagraph (B) or in section 1184(f) of
this title, in his discretion parole into the
United States temporarily under such
conditions as he may prescribe only on a case-
by-case basis for urgent humanitarian reasons
or significant public benefit any alien
applying for admission to the United States .
. . .5
8 U.S.C. § 1182(d)(5)(A).
5
The exceptions to the parole authority of the Attorney
General do not apply to this case. The limitation from
subparagraph B states that an alien who is a refugee cannot be
paroled "unless the Attorney General determines that compelling
reasons in the public interest with respect to that particular
alien require that the alien be paroled into the United States
rather than be admitted as a refugee under section 1157 of the
title." 8 U.S.C. § 1182(d)(5)(B). The other limitation deals with
aliens who are crewmen serving in good faith on board a vessel.
See 8 U.S.C. § 1184(f).
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In addition to being "inspected and admitted or paroled,"
aliens must be eligible to receive an immigrant visa and this visa
must be immediately available to them. 8 U.S.C. § 1255(a). Aliens
seeking an immigrant visa must first receive approval of an
immigrant petition, which is usually filed by an employer or a
relative. The alien must then wait for and receive an immigrant
visa number, which means that a visa has been assigned.6 Dep’t of
Homeland Sec., Citizenship & Immigration Servs., How do I get an
Immigrant Visa Number, at http://uscis.gov/graphics/howdoi/
immvisa.htm (last modified October 31, 2003).
C. Parole
The purpose of parole is to permit a non-citizen to enter
the United States temporarily while investigation of eligibility
6
There are three types of immigrant visas available: (1)
family-sponsored immigrant visas, (2) employment-based immigrant
visas, and (3) diversity immigrant visas. 8 U.S.C. §§ 1151(a)(1),
(2), (3). For immediate relatives of United States citizens,
including spouses, parents, and unmarried children under the age of
21, an immigrant visa number is automatically available upon
approval of the visa petition. Dep’t of Homeland Sec., Citizenship
& Immigration Servs., How do I get an Immigrant Visa Number?, at
http://uscis.gov/graphics/howdoi/immvisa.htm (last modified October
31, 2003). All other individuals seeking visas based on familial
relationships and individuals seeking to receive visas based on
employment must wait for a visa number. These numbers come
available in order of preference for different types of
relationships and employment. 8 U.S.C. §§ 1153(a), (b)(1). As for
relationships, first priority is given to unmarried sons and
daughters of United States citizens over the age of 21. 8 U.S.C.
§ 1153(a). In the employment context, first priority is given to
workers with extraordinary abilities, professors and researchers,
and certain multinational executives and managers. 8 U.S.C. §
1153(b).
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for admission takes place.7 Congress has ordered certain aliens
removed; they are not eligible for parole. 8 U.S.C. § 1225(c)(1).
Congress has set forth the conditions for parole in the statute.
See 8 U.S.C. § 1182(d)(5)(A). Congress authorizes the Attorney
General to allow parole "temporarily under such conditions as he
may prescribe only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A).
Accordingly, the Attorney General has promulgated regulations. 8
C.F.R. § 212.5. Under the regulations, aliens in one of five
groups can be paroled for urgent humanitarian reasons or
significant public benefit "provided the aliens present neither a
security risk nor a risk of absconding." 8 C.F.R. § 212.5(b).
These five groups are: (1) aliens with a serious medical condition,
7
There are several types of parole. In 2003, 70% of all
parolees were paroled under the most common type of parole, port of
entry parole. Dep't of Homeland Sec., Office of Immigration
Statistics, 2003 Yearbook of Immigration Statistics 83. Port of
entry parolees are "authorized at the port upon alien's arrival;
[port of entry parole] applies to a wide variety of situations and
is used at the discretion of the supervisory immigration inspector,
usually to allow short periods of entry." Id. at 190. Advance
parole is a second type of parole; it is issued to an alien
residing in the United States who has an unexpected need to travel
abroad and whose conditions of stay do not otherwise allow for
readmission to the United States. Id. Deferred inspection parole
is conferred by an immigration inspector when aliens appear with
documentation, but after preliminary examination some questions
remain about their admissibility. Id. The three other types of
parole are humanitarian parole, granted in instances of medical
emergency; public interest parole, granted for aliens participating
in legal proceedings; and overseas parole, which is granted,
usually by special statute, to individuals while they are in their
home country to allow them to enter the United States.
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(2) women who have been medically certified as pregnant, (3) aliens
who are defined as juveniles in certain circumstances, (4) aliens
who will be witnesses in judicial proceedings, and (5) aliens whose
continued detention is not in the public interest as determined by
the officials charged with exercising this discretion. 8 C.F.R. §
212.5(b)(1)-(5). In making their decisions, immigration officers
can consider whether the alien has "[c]ommunity ties" such as close
relatives with known addresses. 8 C.F.R. § 212.5(d)(2). Arriving
aliens who claim asylum and establish a credible fear with an
asylum pre-screening officer can be paroled at the point of entry
while they pursue their asylum application.8
A paroled individual is not considered "admitted" into
the United States: he is an "applicant for admission." 8 U.S.C. §
1101(13)(B). He is not detained and is allowed to temporarily
enter the United States. However, "when the purposes of such
parole . . . have been served the alien shall forthwith return or
be returned to the custody from which he was paroled and thereafter
his case shall continue to be dealt with in the same manner as that
of any other applicant for admission to the United States." 8
8
A report to Congress governing the use of the Attorney
General's parole authority indicates that aliens establishing a
credible fear of persecution can be and often are paroled into the
United States while they seek asylum. Immigration & Naturalization
Serv., Report to Congress: Use of the Attorney General’s Parole
Authority Under the Immigration & Nationality Act: Fiscal Years
1998-1999, 8 (2003), available at
http://uscis.gov/graphics/repsstudies/parolerpt9899.pdf.
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U.S.C. § 1182(d)(5)(A). It appears from the face of the statute
that the Attorney General has no discretion in this determination.
As soon as the reasons for parole have been served, the individual
must be returned to custody.
By statute, paroled individuals9 are eligible for
adjustment of status if they meet the other statutory eligibility
requirements. 8 U.S.C. § 1255(a). Section 1255 makes no
distinction between those who are in removal proceedings and those
who are not for purposes of adjustment of status.
Since the 1960 enactment of section 1255(a), Congress has
on several occasions amended other provisions of 8 U.S.C. § 1255 to
restrict the class of people who are eligible to receive adjustment
of status. For example, alien crewmen, aliens continuing or
accepting unauthorized employment, and aliens admitted in transit
without a visa are not eligible to adjust status under section
1255(a), unless they fall into limited exceptions to the bar on
eligibility. 8 U.S.C. § 1255(c). Congress also limited the
ability of an alien to adjust status if the alien is married in the
United States while in judicial proceedings. 8 U.S.C. §
1255(e)(1).10 Significantly, Congress has never taken parolees, as
9
Succar's application was made during the removal proceedings
and the respondent makes no argument that Succar's parole was
revoked.
10
The respondent does not argue that Succar is ineligible to
adjust status on the ground that he entered into his marriage while
his removal proceedings were pending. Regardless, it appears from
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a group, out of the class of eligible aliens, despite over a dozen
opportunities--where section 1255 was otherwise amended--to do so.
Parolees, although they are physically present in the
United States, are treated as if they were at the border seeking
admission. Before the 1996 IIRIRA statutory changes, parolees were
subject to exclusion proceedings. Post-IIRIRA, individuals who are
paroled and are seeking asylum are subject to removal proceedings.
As arriving aliens, parolees are subject to removal proceedings.
"[I]f the examining officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a [removal] proceeding .
. . ." 8 U.S.C. § 1225 (b)(2)(A). Parolees are generally not
"clearly and beyond a doubt" entitled to admission. However, as
parolees, they are not in detention. Until the final order of
removal, which in some circumstances–-such as where the applicant
is applying for asylum--can take years, paroled aliens in removal
proceedings, such as Succar, live, work and form relationships
within the United States.
the record that Succar fits within the exception to this
prohibition, 8 U.S.C § 1255(e)(3), as he was granted approval of
the I-130 petition, filed by Succar's wife on his behalf, and the
request for a bona fide marriage exemption.
The respondent's only argument as to why Succar is ineligible
to adjust status is the Attorney General's regulation denying
adjustment of status to arriving aliens (including parolees) in
removal proceedings.
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D. Parolees and Adjustment of Status
Before the promulgation of 8 C.F.R. § 245.1(c)(8),
paroled aliens in exclusion proceedings had an independent avenue
to apply for adjustment of status.11 In re Castro-Padron, 21 I. &
N. Dec. 379, 379-80 (BIA 1996). The BIA held that in exclusion
proceedings, jurisdiction over an alien's application for
adjustment of status lay with the district director of the
immigration agency, not the IJ. Id. at 379. The Board explained,
"[A]pplicants [in exclusion proceedings] can file their adjustment
application with the district director of the [INS], who has sole
jurisdiction over the application and can act on the application
independently of these [exclusion] proceedings." Id. at 380.
Historically, the district director had jurisdiction over
the adjustment application of both aliens in deportation
proceedings who were admitted and aliens in exclusion proceedings
who were paroled.12 In re Mannah, 16 I. & N. Dec. 272, 274 (BIA
11
Upon a clarification request from this court on the law prior
to the passage of the regulation in question, the Attorney General
joined in a letter with the petitioner which explained that prior
to 1997, arriving aliens in exclusion proceedings who were
statutorily eligible for adjustment of status could apply to the
district director for this relief.
12
The pre-1997 regulations allowed one subcategory of parolees,
advanced parolees, to bring an initial application for adjustment
of status before the IJ and to renew before an IJ applications for
adjustment of status previously denied by the district director.
In re Castro-Padron, 21 I. & N. Dec. 379, 380 (BIA 1996). Advanced
parolees were aliens who had been granted advance parole before
leaving the United States. They then left, returned, and were now
in exclusion proceedings. They were treated the same as admitted
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1977). In 1961, regulations gave the IJ the authority in
deportation cases to renew admitted aliens' adjustment applications
that were denied by the district director and to adjudicate initial
applications for such aliens in deportation proceedings. Id. With
this change, the district director no longer had authority over
adjustment applications once deportation proceedings began. Id.
However, the Board determined that this enlarged jurisdiction did
not apply when the alien was in exclusion proceedings: the
district director retained sole authority for adjustment of status
applications. Id.
In 1997, the Attorney General13 promulgated new
regulations, which were said to implement IIRIRA. The regulations
created a new definition for the term arriving alien:
The term arriving alien means an applicant for
admission coming or attempting to come into
the United States at a port of entry, or an
alien seeking transit through the United
States at a port-of-entry, or an alien
interdicted in international or United States
waters and brought into the United States by
any means, whether or not to a designated
port-of-entry, and regardless of the means of
transport. An arriving alien remains such
aliens in deportation proceedings, meaning that they could apply to
the IJ for adjustment of status. The Board held that this
regulation did not apply to other paroled aliens who were arriving
for the first time and were placed in exclusion proceedings -- they
continued to be limited to pursuing their adjustment applications
before the district director only. Id.
13
The Attorney General at the time of the promulgation of this
regulation was Janet Reno. Successor Attorney General, John
Ashcroft, chose to defend this regulation.
-20-
even if paroled pursuant to section 212 (d)(5)
of the Act . . . .
8 C.F.R. § 1.1(q).
Armed with this new definition of arriving alien, the
Attorney General made a substantive change to the adjustment of
status regulations. The Attorney General made several categories
of aliens ineligible to apply for adjustment of status under 8
U.S.C. § 1255(a), including "[a]ny arriving alien who is in removal
proceedings pursuant to section 235(b)(1) or section 240 of the
Act." 8 C.F.R. § 245.1(c)(8) (emphasis added). It is this
particular provision of the regulation that is challenged before
this court.
The Attorney General also enacted regulations regarding
the proper place for an eligible individual to file for adjustment
of status. A key regulation states:
An alien [who believes he or she 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 for adjustment of status . . .
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.
8 C.F.R. § 245.2(a)(1) (emphasis added). A parolee in removal
proceedings thus no longer has the ability to apply before anyone,
-21-
either the district director or the IJ, for adjustment of status.
By contrast, a parolee who is not in removal proceedings (as an
arriving alien) can, consistent with earlier practice, apply to the
district director for adjustment of status. We are informed that
most arriving alien parolees are placed in removal proceedings.
The new regulatory scheme is, thus, a break from earlier practice.
In promulgating 8 C.F.R. § 245.1(c)(8) in 1997, the
Attorney General explained the rationale for the new regulation:
Consistent with Congress' intent that arriving
aliens . . . be removed in an expedited manner
through the procedures provided . . . , the
Attorney General has determined that she will
not favorably exercise her discretion to
adjust the status of arriving aliens who are
ordered removed . . . .
62 Fed. Reg. 444, 452 (January 3, 1997). In an effort to quickly
remove aliens, the regulation aimed to eliminate avenues available
to arriving aliens in removal proceedings that allow such aliens to
"delay their removal through an application for adjustment of
status." Id. The Attorney General explained that an arriving
alien will not be able to adjust status within the United States.
If an arriving alien is eligible for an immigrant visa, she will be
"required to return to . . . her country of residence and request
it through the consular process available to all aliens outside of
the United States." Id. The Attorney General believed that if
"the Service decides as a matter of prosecutorial discretion, not
to initiate removal proceedings but to parole the arriving alien,
-22-
the alien will be able to apply for adjustment of status before the
district director." Id.
Under the new regulations, arriving aliens in removal
proceedings (regardless of whether they otherwise meet the
statutory criteria for adjustment of status) must leave the United
States and go through consular processing in order to adjust
status; the respondent has represented that this is the only option
available to them. But there are significant limitations even as
to this avenue. Non-citizens are subject to 8 U.S.C. §
1182(a)(9)(B)(i), which bars non-citizens from reentry into the
United States for three years if they were unlawfully present in
the United States for more than 180 days but less than one year and
for ten years if they were unlawfully present for more than one
year.14 Any waiver of this statutory bar is in the absolute
discretion of the Attorney General. 8 U.S.C. § 1182(a)(9)(B)(v).
Also, non-citizens who have not been admitted into the United
States are ineligible for voluntary departure. 8 U.S.C. §
1229c(a)(4). Following any involuntary removal, they will be
ineligible for readmission for five years unless the Attorney
General grants a waiver. 8 U.S.C. § 1182(a)(9)(A)(i), (iii).
Parolees have, by definition, not been admitted, and thus will
generally be subject to this five year bar for involuntary removal
14
Succar asserts that he would be barred from reentry into the
United States for ten years, and the government does not contend
otherwise.
-23-
as well. Denying paroled aliens in removal proceedings the ability
to adjust status within the United States thus creates a
significant hardship on these individuals and their families.
Of course, as the Attorney General has stated, the
immigration agency in theory can decide to terminate the removal
proceedings in the alien's favor, which would allow the arriving
alien–-who would then not be in removal proceedings–-to apply for
adjustment of status before the district director. The government
as prosecutor in the removal proceedings may, in its discretion,
terminate the proceedings in order to permit the alien to apply for
adjustment of status. But as this case demonstrates, the BIA has
apparently taken the position that neither it nor the IJ may
suspend or terminate the proceedings for this purpose without the
government's consent.
III.
Availability of Judicial Review of Statutory Interpretation Claim
The Attorney General first argues that 8 U.S.C §
1252(a)(2)(B) precludes judicial review of the Attorney General's
denial of Succar's application for adjustment of status because the
Attorney General, through the promulgation of 8 C.F.R. §
245.1(c)(8), made a discretionary determination that arriving
aliens do not merit adjustment of status under 8 U.S.C. § 1255. We
disagree and exercise review.
-24-
Section 1252 provides for judicial review of orders of
removal, and sets forth limitations on this review. The Attorney
General relies on §1252(a)(2)(B), which reads in part as follows:
(B) Denials of discretionary relief
Notwithstanding any other provision of
law, no court shall have jurisdiction to
review--
(i) any judgment regarding the granting
of relief under section . . . 1255 of this
title
8 U.S.C § 1252(a)(2)(B)(i). Both the Supreme Court and this court
have consistently rejected arguments that Congress has eliminated
judicial review of the legal question of interpretation of the
statute as to whether an alien is eligible for consideration of
relief.15
Succar challenges the Attorney General's regulation as
being contrary to the statute; that is a classic issue for the
court to decide. The issue presented is a purely legal question
and as such is not within the jurisdictional bar of 8 U.S.C. §
1252(a)(2)(B). That is the ruling of Zadvydas v. Davis, 533 U.S.
678, 688 (2001), which exercised judicial review over a challenge
to the extent of the Attorney General's authority to detain an
15
A decision by the Attorney General on the merits of the
application for adjustment of status under 8 U.S.C. § 1255 is
committed to the discretion of the Attorney General. If the BIA
had adjudicated and denied Succar's application on the merits, and
Succar challenged this decision, then, arguably, this court would
not have jurisdiction to review that discretionary determination.
This is not what is at issue here; rather the issue is one of
statutory interpretation. The two questions are distinct.
-25-
alien indefinitely under the post-removal-period detention statute
because the authority of the Attorney General to act is "not a
matter of discretion" and is subject to judicial review. So here
the challenge goes to the Attorney General’s statutory authority
and not his discretion. See Subhan v. Ashcroft, 383 F.3d 591, 594
(7th Cir. 2004) (interpreting 8 U.S.C. § 1252(a)(2)(B) as
preserving jurisdiction when the decision is not "a judgment
denying a request for adjustment of status" under 8 U.S.C. § 1255);
see also Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th
Cir. 2002) (Section 1252(a)(2)(B)(i) does not preclude review of
"purely legal and hence non-discretionary" questions.); Prado v.
Reno, 198 F.3d 286, 288 (1st Cir. 1999) (Whether a court can
exercise review depends on the grounds upon which the decision of
the BIA rests and "the precise nature of the claims made in the
petition.").
Quite literally, the Attorney General did not, under 8
U.S.C. § 1252(a)(2)(B)(i), make "a judgment regarding the granting
of relief under section 1255," because the effect of the regulation
is to preclude an alien from even applying for relief under section
1255. See Subhan, 383 F.3d at 594 (exercising jurisdiction over
the IJ's decision even though the effect of the decision is the
same as that of a denial of an adjustment of status application;
the court has jurisdiction because "the purpose behind [8 U.S.C. §
1252(a)(2)(B)(i)] is presumably to shield from judicial review
-26-
judgments regarding the propriety of adjusting an alien's status,
and no such judgment has ever been made with regard to the
[petitioner]").
This court has jurisdiction to review Succar's claim
under 28 U.S.C. § 1331, which grants courts general federal
question jurisdiction, Reno v. Catholic Soc. Servs., Inc., 509 U.S.
43, 56 (1993), and the Administrative Procedure Act (APA), which
gives a court power to "'hold unlawful and set aside' not only
agency action that is 'arbitrary' or 'capricious,' but also agency
action that is 'otherwise not in accordance with law' or is 'in
excess of statutory jurisdiction, authority, or limitations, or
short of statutory right.'" Cousins v. Sec’y of the United States
Dep’t of Transp., 880 F.2d 603, 608 (1st Cir. 1989) (quoting 5
U.S.C. § 706(2)(A, C)). "It is 'central to the real meaning of
"the rule of law," [and] not particularly controversial' that a
federal agency does not have the power to act unless Congress, by
statute, has empowered it to do so." Transohio Sav. Bank v. Dir.,
Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir. 1992)
(quoting Edward L. Rubin, Law and Legislation in the Administrative
State, 89 Colum. L. Rev. 369, 402 (1989)) (alteration in
Transohio). When an agency action is contrary to the scope of a
statutory delegation of authority or is an arbitrary and capricious
exercise of that authority, that action must be invalidated by
reviewing courts.
-27-
IV.
A. Merits: Validity of Regulation Vis-à-Vis the Statute
The question presented is whether the regulation, 8
C.F.R. § 245.1(c)(8), is invalid as clearly contrary to 8 U.S.C. §
1255(a) or as an arbitrary or capricious exercise of the Attorney
General's delegated authority. The regulation affects certain
arriving aliens who have been granted parole into the United States
and have also been placed in removal proceedings. As explained
above, before adoption of 8 C.F.R. § 245.1(c)(8) in 1997, this
category of aliens, if they met the other statutory requirements,
could apply for adjustment of status with the local district
director. The effect of 8 C.F.R. § 245.1(c)(8) is to deny
eligibility for relief under 8 U.S.C. § 1255 to this category of
aliens by precluding consideration of their applications either
before the district director or before an IJ.
Succar and supporting amici16 launch a three-fold attack
on the regulation. First, they argue the regulation is flatly
inconsistent with congressional intent as expressed in 8 U.S.C. §
1255(a) and the legislative history. Alternatively, they argue
there are two possible interpretations of the regulation which must
be adopted to avoid a conflict between the regulation and the
statute. Finally, they argue that the Attorney General has acted
16
Both the American Immigration Law Foundation and the
Massachusetts Law Reform Institute have participated as amici and
we acknowledge their able assistance.
-28-
ultra vires. Succar argues that 8 U.S.C. § 1255(a) expressly
mentions persons in parole status (without restricting that status
to those not in removal proceedings) as among those eligible to
apply for adjustment of status, and therefore Congress intends for
any decision made within the Attorney General's admitted discretion
to be made on an individualized basis after an eligible alien
applies, not as a categorical eligibility exclusion.17
The Attorney General defends the regulation, arguing that
8 U.S.C. § 1255(a) expressly states that the decision to grant
adjustment of status is subject to the Attorney General's
discretion and that the regulation is no more than a valid exercise
of that discretion. The Attorney General points out that the
regulation does not make all of those in parole status ineligible
to apply for adjustment of status, only those who have been placed
in removal proceedings. However, it was represented in the briefs
17
The majority of petitioner's efforts to attack the statute
are unpersuasive. We explain briefly the futility of these
attacks. The Attorney General was expressly given discretion by
the statute and has authority to promulgate regulations, so that
cannot be the basis of an ultra vires attack.
If a regulation is unreasonable in light of the statute as
either arbitrary and capricious or as flatly inconsistent with the
clear meaning of the statute as expressed by Congress, the
regulation will violate the Chevron doctrine, and calling the
regulation ultra vires in those circumstances adds nothing to the
analysis. See Chevron USA, Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842 (1984).
Further, while the doctrine of constitutional avoidance
permits a court in some instances to adopt a particular
construction of a law to avoid issues of unconstitutionality, that
doctrine is unavailable here. The claims of petitioner are based
not in the Constitution but in a statute.
-29-
before this court that the "majority of the intended beneficiaries
of parolee adjustment of status are in removal proceedings." The
Attorney General does not dispute this statement.
Paroled individuals must be placed in removal proceedings
"if the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to be
admitted." 8 U.S.C. § 1225(b)(2)(A). The Attorney General argues
that the challenged regulation does not effectuate a final
exclusion from eligibility because even though these individuals
cannot apply while they are physically in the United States, the
alien can leave the United States and then apply for an immigrant
visa at the embassy or consular office in his home country.
The petitioner responds that the result of such a
requirement, contrary to congressional intent, is that many aliens
would be barred from even applying from outside the country for
long periods of time because of the statutory bars discussed above.
8 U.S.C. § 1182(a)(9).18 As we shall see, in enacting section
1255(a) in 1960, Congress expressed an intent that eligible aliens
be able to adjust status without having to leave the United States,
to relieve the burden on the United States citizen with whom the
18
Others, the petitioner argues, will not be able to return to
their home countries because they fled, fearing persecution there,
the basis for their asylum application. The logical response is
that if those aliens prove they are eligible for asylum or
withholding of removal, they may, in the discretion of the agency,
not be removed. They may then apply for adjustment of status.
-30-
aliens had the requisite family or other relationship, on the
United States consulates abroad, and on the alien. That was one of
the primary purposes of the legislation.
The Attorney General also argues that the passage of
IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (1996), altered the
immigration laws in many restrictive ways. Petitioner counters
that IIRIRA did indeed tighten restrictions, but points out that
application for adjustment of status by parolees was one of the few
areas untouched. This, the petitioner says, reflected Congress's
consistent understanding that the immigration agency would consider
applications for adjustment of status from parolees, whether in
removal proceedings or not.
B. Standard of Review
Two points are undisputed: Congress has granted the
Attorney General some degree of discretion to adjust the status of
statutorily specified aliens in 8 U.S.C. § 1255 and Congress has
granted the Attorney General authority to promulgate regulations
which guide the exercise of this discretion. 8 U.S.C. §
1103(g)(2). When there is no challenge to whether Congress
authorized the Attorney General to issue regulations, we are faced
with only two questions.
We first ask whether "Congress has directly spoken to the
precise question at issue." Chevron USA, Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). If so, courts, as well as
-31-
the agency, "must give effect to the unambiguously expressed intent
of Congress." Id. at 842-43. As the Supreme Court has said in the
immigration context:
The judiciary is the final authority on issues
of statutory construction and must reject
administrative constructions which are
contrary to clear congressional intent. If a
court, employing traditional tools of
statutory construction, ascertains that
Congress had an intention on the precise
question at issue, that intention is the law
and must be given effect.
INS v. Cardoza-Fonseca, 480 U.S. at 447-48 (quoting Chevron USA
Inc., 467 U.S. at 843 n.9) (internal quotation marks omitted).
"Chevron[] deference to [an agency's] statutory interpretation is
called for only when the devices of judicial construction have been
tried and found to yield no clear sense of congressional intent."
Gen. Dynamics Land Sys., Inc. v. Cline, 124 S. Ct. 1236, 1248
(2004).
In determining whether a statute exhibits Chevron-type
ambiguity, and hence warrants deference to the Attorney General’s
interpretation of the statute, courts look at both the most natural
reading of the language and the consistency of the "interpretive
clues" Congress provided. Gen. Dynamics Land Sys., Inc., 124 S.
Ct. at 1240, 1248. In determining the meaning of a statute, our
analysis begins with the language of the statute. See Leocal v.
Ashcroft, 125 S.Ct. 377, 382 (2004) (reversing INS interpretation
of term "crime of violence" in 8 U.S.C. § 1227(a)(2)(A)(iii) and 8
-32-
U.S.C. § 1101(a)(43)(f)). "[W]e construe language in its context
and in light of the terms surrounding it." Id. Another "regular
interpretive method" is reference to statutory history to see if
any "serious question . . . even about purely textual ambiguity" is
left. Gen. Dynamics Land Sys., Inc., 124 S. Ct. at 1248.
However, whenever Congress has left a gap for the agency
to fill, then we reach the second question, for the agency's
regulation is "given controlling weight unless [it is] arbitrary,
capricious, or manifestly contrary to the statute." Chevron USA,
Inc., 467 U.S. at 843-44; see Household Credit Servs., Inc. v.
Pfennig, 124 S. Ct. 1741, 1746-47 (2004).
If the statutory terms are ambiguous, then the principle
of Chevron deference to the Attorney General's choice must apply.
Cardoza-Fonseca, 480 U.S. at 448. Indeed, the Supreme Court has
said that "judicial deference to the Executive Branch is especially
appropriate in the immigration context where officials 'exercise
especially sensitive political functions that implicate questions
of foreign relations.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).19 That
19
The regulations guiding the Attorney General's parole
decisions do not allow for the parole of aliens thought to be a
security risk. 8 C.F.R. § 212.5(b). Further, if the arriving
alien is thought to be inadmissible because (1) he has engaged in
or is suspected of being a terrorist, 8 U.S.C. § 1182(a)(3)(B), (2)
he seeks to enter into the country to engage in actions against the
United States government, 8 U.S.C. § 1182(a)(3)(A), or (3) his
entry or proposed actions in the United States would have
potentially serious adverse foreign policy consequences for the
-33-
said, the court has not hesitated to reject an INS interpretation
as contrary to congressional intent. See, e.g., Leocal, 125 S. Ct.
at 382; Cardoza-Fonseca, 480 U.S. at 448-49.
C. Statutory Ambiguity
Each party initially argues that the statute is
unambiguous, in its favor. The Attorney General argues that the
statute unambiguously grants him discretion to allow or deny
adjustment of status to an alien. One way to exercise that
discretion, the Attorney General argues, is to make certain
categories of otherwise eligible aliens ineligible to apply and so
ineligible to warrant the favorable exercise of the Attorney
General’s discretion. In the Attorney General's view, this is the
end of the matter.
We agree that the statute gives the Attorney General
discretion, but disagree that this ends the analysis as to whether
the Attorney General can promulgate this particular categorical
eligibility exclusion. The Supreme Court itself has ruled that the
two questions of discretion as to the ultimate relief and
discretion as to eligibility exclusions are distinct. See Cardoza-
Fonseca, 480 U.S. at 443-44 (distinguishing between the discretion
in the Attorney General as to the ultimate decision to grant relief
United States, 8 U.S.C. § 1182(a)(3)(C), the alien shall be ordered
removed, and the order of removal shall be reported to the Attorney
General. 8 U.S.C. § 1225(c). The order of removal is subject to
limited review procedures. 8 U.S.C. § 1225(c)(2).
-34-
and the underlying process and criteria for eligibility for
relief); see also Goncalves, 144 F.3d at 125 ("Analytically, the
decision whether an alien is eligible to be considered for a
particular discretionary form of relief is a statutory question
separate from the discretionary component of the administrative
decision whether to grant relief.").
The statute, we find, is unambiguous on this issue and
that congressional clarity works against the Attorney General. We
reject the respondent's argument that Congress authorized 8 C.F.R.
§ 245.1(c)(8), making parolees in removal proceedings ineligible to
adjust status, either by "express delegation or the introduction of
an interpretive gap." Pauley v. BethEnergy Mines, Inc., 501 U.S.
680, 696 (1991). Congress has spoken clearly on the issue of
eligibility for adjustment of status and has reserved for itself
the determination of whether a non-citizen should be able to apply
for this relief. The Attorney General cannot promulgate a
regulation that categorically excludes from application for
adjustment of status a category of otherwise eligible aliens; this
is contrary to congressional intent in section 1255.
1. Text of the Statute
We look first to 8 U.S.C. § 1255 itself, which provides:
§ 1255. Adjustment of status of nonimmigrant
to that of person admitted for permanent
residence
-35-
(a) Status as person admitted for permanent
residence on application and eligibility for
immigrant visa
The status of an alien who was
inspected and admitted or paroled into the
United States or the status of any other alien
having an approved petition for classification
. . . 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 if
(1) the alien makes an application for such
adjustment, (2) the alien is eligible to
receive an immigrant visa and is admissible to
the United States for permanent residence, and
(3) an immigrant visa is immediately available
to him at the time his application is filed.
8 U.S.C. § 1255(a) (emphasis added).
Congress defined certain categories of aliens who were
eligible to apply for adjustment of status, 8 U.S.C. § 1255(a), and
refined the definition by specifically excluding certain aliens
from eligibility, 8 U.S.C. §§ 1255(c), (e). By statute, two
categories of aliens are eligible to apply. First is an alien who
was inspected and admitted. Second is an alien who was paroled.
8 U.S.C. § 1255(a). The Attorney General's regulation carves out
an exception from this second category of eligible aliens, by
making paroled aliens who are placed in removal proceedings
ineligible for adjustment of status relief, even if they otherwise
meet the statutory requirements. 8 C.F.R. § 245.1(c)(8).
Congress unambiguously reserved to itself the
determination of who is eligible to apply for adjustment of status
-36-
relief. 8 C.F.R. § 245.1(c)(8) conflicts with the statute in
several ways.
First, Congress itself explicitly determined categories
of aliens (those aliens who had been "inspected and admitted or
paroled") who are eligible for adjustment of status if they
otherwise meet the statutory requirements. 8 U.S.C. § 1255(a).
Despite numerous amendments to 8 U.S.C. § 1255 since 1960, Congress
has not limited the eligibility of paroled aliens under section
1255(a).20 The statute has never stated that an alien is ineligible
to adjust status if he is in removal proceedings.
Second, when Congress desired to limit the ability of a
non-citizen who might otherwise have been eligible to apply for
adjustment of status under 1255(a), it has done so explicitly by
defining several categories of aliens as not eligible to apply.
For example, alien crewmen, aliens continuing or accepting
unauthorized employment, and aliens admitted in transit without a
visa are not eligible to adjust status under section 1255(a) unless
they fall into limited exceptions. 8 U.S.C. § 1255(c)
("[S]ubsection (a) [of 8 U.S.C. § 1255] shall not be applicable to
20
Since 1960, Congress has amended section 1255(a),
specifically, two times. Historical & Statutory Notes, 8 U.S.C.A.
§ 1255. These two amendments do not have any effect on the
eligibility of paroled individuals to adjust status and are not at
issue in this case. Both of these amendments to section 1255(a)
expanded the category of aliens eligible for adjustment of status
and in no way limited the eligibility of a paroled alien to adjust
status.
-37-
. . . .")(emphasis added). Another category of aliens that
Congress has explicitly determined is ineligible to apply for
relief under section 1255(a) is the alien who is seeking to obtain
an immigrant visa based on a marriage entered into while judicial
proceedings are pending regarding the alien's right to be admitted
or remain in the United States. 8 U.S.C. § 1255(e).21 The statute
is clear that even if these individuals were "inspected and
admitted or paroled" and complied with the other statutory
requirements, they are not eligible to apply.
There are two themes. First, Congress explicitly
rendered ineligible a certain category of aliens to apply. Second,
that category of excluded aliens included some in removal
proceedings, but Congress chose not to disqualify from eligibility
all of those aliens "inspected and admitted or paroled" in removal
or other judicial proceedings. In those limited circumstances when
the involvement in proceedings works to hamper an individual's
ability to adjust status, Congress has explicitly said so.
Third, Congress also has determined that some aliens whom
it has deemed ineligible under 8 U.S.C. § 1255(c) might in some
limited circumstances still be eligible for adjustment of status
21
This section does not apply if "the alien establishes by
clear and convincing evidence to the satisfaction of the Attorney
General that the marriage was entered into in good faith and in
accordance with the laws of the place where the marriage took place
and the marriage was not entered into for the purpose of procuring
the alien's admission as an immigrant." 8 U.S.C. § 1255(e)(3).
-38-
relief. For example, in 8 U.S.C. § 1255(i), Congress allows
adjustment of status for certain aliens who entered the United
States without inspection or who are categorized in section 1255(c)
of the statute as being ineligible. Congress states that if these
aliens are beneficiaries of either "(i) a petition for
classification under [8 U.S.C. §] 1154 . . . that was filed with
the Attorney General on or before April 30, 2001; or (ii) an
application for a labor certification under [8 U.S.C. §]
1182(a)(5)(A) . . . that was filed . . . on or before such date,"
then they "may apply to the Attorney General for adjustment of . .
. status to that of an alien lawfully admitted for permanent
residence." See 8 U.S.C. § 1255(i).22 When Congress has wanted to
impose special restrictions on the applications for certain
categories of aliens that it has deemed eligible, or conversely to
open up eligibility for aliens that were ineligible, it has done so
22
The statute provides that the "Attorney General may accept
such application only if the alien remits with such application a
sum equaling $1,000 as of the date of receipt of the application."
8 U.S.C. § 1255(i)(1) (emphasis added). "Upon receipt of such an
application and the sum hereby required, the Attorney General may
adjust the status of the alien to that of an alien lawfully
admitted for permanent residence," if the alien meets certain
statutory requirements. 8 U.S.C. § 1255(i)(2) (emphasis added).
This particular provision gives further weight to Congress's
intention to distinguish between the two steps necessary for
adjustment of status: (1) eligibility to apply and (2) a favorable
determination by the Attorney General. Section 1255(i), unlike the
other provisions governing who is eligible to apply for adjustment
of status, seems to give the Attorney General some discretion over
whether these aliens are even eligible to apply, as well as over
the decision whether to adjust.
-39-
explicitly. But Congress has imposed no restrictions on applying
for adjustment of status for a paroled alien based on that alien's
being in removal proceedings.
2. Context of the Statutory Scheme
The terms and provisions of 8 U.S.C. § 1255(a) must be
understood in the larger context of the statutory scheme. The
immigration laws about adjustment of status are not a haphazard
compilation of provisions; they are a calibrated set of rules that
govern an area of national importance. Congress in many instances
has specifically determined when to give discretion to the Attorney
General and when to make its own policy choices. Viewing the
statutory scheme in this manner clarifies two things: first, that
the exclusion of parolees in removal proceedings renders ineligible
most of the class that Congress rendered eligible by including
parolees (for Congress clearly stated that most parolees would be
in removal proceedings), and second, that the congressional choice
to delegate to the Attorney General some circumscribed discretion
-40-
over the ultimate decision of who is granted adjustment of status23
is not authorization for discretion in other areas.
We explain: one policy choice Congress made was to allow
(in some instances) aliens who were otherwise inadmissible on
arrival the opportunity to seek adjustment of status relief if they
met certain statutory criteria. See 8 U.S.C. § 1255. In 8 U.S.C.
§ 1182, Congress defines the classes of aliens who are ineligible
for visas or admission to the United States and makes various
exceptions from these blanket rules. See 8 U.S.C. § 1182(a).
Congress also allows for parole of these inadmissible aliens for
"urgent humanitarian reasons" or "significant public benefit." 8
U.S.C. § 1182(d)(5)(A). Congress specifically says parolees are
not considered admitted. Id. Despite their status as
inadmissible, Congress has also made the policy determination that
23
"If the word 'discretion' means anything in a statutory or
administrative grant of power, it means that the recipient must
exercise his authority according to his own understanding and
conscience." See Goncalves, 144 F.3d at 125 (quoting United States
ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954))
(internal quotation marks omitted)(alteration in Goncalves)
(emphasis added). This comports with a doctrine articulated by
Judge Jerome Frank in United States ex rel. Adel v. Shaughnessy,
183 F.2d 371 (2d Cir. 1950), that where Congress has granted an
agency discretion, courts may intervene when there has been "a
clear failure to exercise discretion" (as well as when that
discretion has been abused). Id. at 372. In later formulations,
courts have said that an agency’s "failure to . . . exercise its
discretion, when properly called upon to do so, is subject to
judicial review for arbitrariness and capriciousness." Wolfe v.
Marsh, 835 F.2d 354, 358 (D.C. Cir. 1987). Here, the Attorney
General must actually exercise his discretion to determine whether
the paroled individuals that Congress has deemed eligible for
adjustment of status should be granted this relief.
-41-
these paroled aliens should be eligible to apply for adjustment of
status, which essentially can act as an admission. 8 U.S.C. §
1255(a).
Section 1182 is integral to determinations made in
"inspection," which is provided for in 8 U.S.C. § 1225. All
arriving aliens and aliens who are present in the United States
without an inspection are "applicants for admission," 8 U.S.C. §
1225(a)(1), and they "shall be inspected." 8 U.S.C. § 1225(a)(3)
(emphasis added). Section 1225(b) provides for the inspection of
aliens arriving in the United States and certain other aliens who
have not been admitted or paroled. See 8 U.S.C. § 1225(b). If
aliens being inspected are not "clearly and beyond a doubt"
admissible, under section 1182, then they must be referred to
removal proceedings. See 8 U.S.C. § 1225(b)(2)(A).
This context shows that Congress purposefully classified
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.
Further, the larger statutory scheme makes clear that in
the context of adjustment of status, Congress is particular about
where it grants "discretion" to the Attorney General. Congress has
specified the conditions under which an arriving alien (including
a paroled alien) is to be determined inadmissible and must be
-42-
placed in removal proceedings. The determination as to placing an
alien into removal is not a decision committed to agency discretion
by Congress. Rather, Congress has defined the terms for initiating
removal proceedings against arriving aliens in 8 U.S.C. §
1225(b)(2)(A), which provides that,
[I]n the case of an alien who is an applicant
for admission, if the examining immigration
officer determines that an alien seeking
admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be
detained for a [removal proceeding].
8 U.S.C. § 1225(b)(2)(A). Congress used the word "shall" to
mandate that an immigration officer who cannot determine that the
applicant for admission is clearly entitled to be admitted has no
choice but to place the alien in removal proceedings. After the
alien is placed in removal, the Attorney General may parole the
alien into the United States in some instances,24 but the alien
still must go through removal proceedings.25
24
The Attorney General's ability to parole arriving aliens,
both prior to removal proceedings and once the individual is placed
in removal proceedings, is also constrained. The Attorney General
can parole an alien applying for admission temporarily into the
United States "only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A).
The Attorney General has no authority to allow an individual to
remain in parole once the reasons for the initial parole are
exhausted. As soon as a determination that these reasons are
exhausted is made, the individual "shall forthwith return or be
returned to the custody" of the Service. 8 U.S.C. § 1182(d)(5)(A).
25
Indeed, where Congress has wanted to benefit aliens from
certain countries, it has enacted special legislation which allows
these individuals to enter the United States and apply for
permanent resident status within one year, without being subjected
-43-
The incorrectness of the Attorney General's argument can
be seen by looking at one of its logical implications. The
Attorney General is also given discretion as to the ultimate
decision in determining whether to grant asylum to aliens who are
eligible for this relief. 8 U.S.C. § 1158(a); Cardoza-Fonseca, 480
U.S. at 443-44.26 If this grant of discretion meant what the
government argues here, it would be logical that the Attorney
General could similarly decline to allow asylum by issuing a
regulation that refused to process applications from categories of
asylum applicants.
to removal proceedings. See Cuban Adjustment Act of 1966, Pub. L.
No. 89-732, 80 Stat. 1161 (1966) (allowing Cuban parolees to adjust
status after one year of residence in the United States);
Lautenberg Amendment, Pub. L. No. 101-167, 103 Stat. 1263 (1990)
(allowing parolees from the former Soviet Union, Vietnam, Laos, or
Cambodia to adjust status after one year of residence in the United
States).
26
In Cardoza-Fonseca, the Attorney General argued that the
greater standard applicable to withholding of deportation--the
alien's life or freedom would be threatened--was also the standard
applicable to the grant of asylum because it was anomalous that the
standard for asylum, which affords greater benefits, would be less
burdensome than the standard for withholding of deportation.
Cardoza-Fonseca, 480 U.S. at 443. The Supreme Court distinguished
the two statutes to show why the Attorney General's argument was
misplaced. The Court explained that if an individual makes the
stronger showing and demonstrates that he is eligible for
withholding of deportation, that relief is automatic without any
discretion of the Attorney General. By contrast, if an individual
demonstrates the lesser well-founded fear standard to be
statutorily eligible for asylum, the relief was not automatic; it
was then up to the Attorney General to exercise his discretion as
to whether to grant the requested relief. Id. at 443-44.
-44-
But that is not so. If the asylum applicant meets the
eligibility requirements –- if, in other words, the Attorney
General determines that an applicant for asylum establishes she has
"a well founded fear of persecution" on account of one of the
statutory grounds –- the alien must be allowed to apply. The
Attorney General may only exercise his discretion in granting the
asylum.27 8 U.S.C. § 1158(b); 8 U.S.C. § 1101(a)(42)(A).
Similarly, if the paroled adjustment of status applicant meets the
eligibility requirements, the Attorney General may exercise his
discretion only in the decision whether to grant permanent resident
status. In both asylum and adjustment of status, an alien who
satisfies the eligibility requirements to apply "does not have a
right to the [relief]," but he is "eligible" to apply for it.
Cardoza-Fonseca, 480 U.S. at 443-44 (emphasis removed).
Although the regulation, 8 C.F.R. § 245.1(c)(8), denying
adjustment of status to parolees in removal proceedings is itself
framed in terms of who is eligible to apply, the Attorney General
27
It is worth noting that the asylum statute as in force at the
time it was interpreted in Cardoza-Fonseca, is similar in wording
to the adjustment of status statute. The relevant provision in
1987 read:
[T]he alien may be granted asylum in the discretion of
the Attorney general if the Attorney General determines
that such alien is a refugee within the meaning of
section 1101(a)(42)(A) [the well-founded fear standard]
of this title.
Cardoza-Fonseca, 480 U.S. at 427 (quoting 8 U.S.C. § 1158(a)).
-45-
argues the regulation is simply a determination at the outset that
of the eligible parolees, the Attorney General will not exercise
its discretion favorably to those who are in removal proceedings.
The Attorney General relies on Lopez v. Davis, 531 U.S. 230 (2001),
for the proposition that categorically excluding otherwise eligible
individuals is an appropriate use of his discretion as to the
ultimate decision granted in 8 U.S.C. § 1255(a).
Lopez is distinguishable. In Lopez, the Supreme Court
upheld a regulation of the Bureau of Prisons (BOP), 28 C.F.R. §
550.58(a)(1)(vi)(B), which categorically denied early release to
prisoners whose current offense was a drug felony involving the
carrying, possession, or use of a firearm. See Lopez, 531 U.S. at
233. The relevant statute states, "The period a prisoner convicted
of a nonviolent offense remains in custody after successfully
completing a treatment program may be reduced by the [BOP], but
such reduction may not be more than one year from the term the
prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B). The
Supreme Court framed the question as whether "the Bureau has
discretion to delineate, as an additional category of ineligible
inmates, those whose current offense is a felony involving a
firearm." Lopez, 531 U.S. at 238. The Court answered this
question in the affirmative, agreeing with the BOP that "Congress
simply did not address how the Bureau should exercise its
discretion within the class of inmates who satisfy the statutory
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prerequisites for early release." Id. at 239-40 (internal
quotation marks omitted). The Court noted:
Beyond instructing that the Bureau has
discretion to reduce the period of
imprisonment for a nonviolent offender who
successfully completes drug treatment,
Congress has not identified any further
circumstance in which the Bureau either must
grant the reduction, or is forbidden to do so.
In this familiar situation, where Congress has
enacted a law that does not answer "the
precise question at issue," all we must decide
is whether the Bureau, the agency empowered to
administer the early release program, has
filled the statutory gap "in a way that is
reasonable in light of the legislature's
revealed design."
Id. at 242 (emphasis added)(quoting Nations Bank of N.C., N.A. v.
Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995)). In the
face of congressional silence, the Court held that it was not
unreasonable for the BOP to exercise its discretion and exclude a
class of prisoners as ineligible for early release. Id. at 242-43.
By contrast, Congress has not been silent here. There
are differences in the two statutes. In the adjustment of status
statute here, Congress made numerous and explicit policy choices
about who is eligible for adjustment of status relief, who is
ineligible, and of those ineligible, who is nonetheless eligible
with certain application restrictions. See 8 U.S.C. § 1255(a)
(setting out basic eligibility requirements for adjustment of
status); 8 U.S.C. §§ 1255(c), (e) (limiting the eligibility of
otherwise eligible aliens); 8 U.S.C. § 1255(i) (allowing
-47-
eligibility to otherwise ineligible aliens). The statutory
immigration scheme also constrains the Attorney General's
discretion in several ways, including mandating when an arriving
alien must be placed in removal proceedings, 8 U.S.C. §
1225(b)(2)(A), limiting the discretion of the Attorney General to
parole aliens, 8 U.S.C. § 1182(d)(5), and denying the Attorney
General the ultimate discretion to adjust the status of some
otherwise eligible aliens, 8 U.S.C. § 1255(f). Lopez is a Chevron
step two case because of congressional silence; our case, however,
is a Chevron step one case because Congress has clearly spoken on
the issue of eligibility. We find the Attorney General's
regulation to be inconsistent with that congressional
determination. See Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 91 (2002).28
28
Our holding does not "preclude the [Attorney General] from
adopting a uniform set of criteria for consideration in evaluating
applications" for adjustment of status. Lopez, 531 U.S. at 249
(Stevens, J., dissenting). We agree that Congress's eligibility
determinations do not limit the considerations that "may guide the
Attorney General in exercising [his] discretion to determine who,
among those eligible, will be accorded grace." Lopez, 531 U.S. at
243 (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 31 (1996)
(internal quotation marks omitted)).
However, there is one important point: because eligibility is
explicit in this statute, the Attorney General cannot
categorically refuse to exercise discretion favorably for classes
deemed eligible by the statute. The agency cannot get in through
the back door of the relief stage what it cannot do at the
eligibility stage. This limitation is consistent with Yueh-Shaio
Yang, which did not involve the agency excluding a class of
otherwise eligible aliens. Lopez, 531 U.S. at 248 n.4 (Stevens,
J., dissenting). It involved the question of whether a
classification could be considered at all in the exercise of the
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From the language and structure of the statute alone, we
find the regulation to be inconsistent with the expressed intent of
Congress.29 Still, we do not lightly overturn regulations.
D. Legislative History
Questions have been raised about the appropriateness of
use of legislative history at stage one of the Chevron analysis.
See, e.g., Coke v. Long Island Care at Home, Ltd., 376 F.3d 118,
127 (2d Cir. 2004). In fact, the Supreme Court has often referred
to legislative history at stage one, most recently in Gen. Dynamics
Land Sys., Inc. v. Cline, 124 S. Ct. 1236, 1243 (2004), and in a
series of earlier cases. See FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000) (using "later [congressional] Acts"
which spoke "more specifically to the topic at hand" to determine
whether the statute evidenced a clear congressional intent in
Attorney General's ultimate discretion to grant relief from
deportation. Id. Perhaps whether the alien is in removal
proceedings could be a consideration in the weighing against the
favorable exercise of discretion, but it cannot be the basis of a
categorical exclusion.
29
The Attorney General also relies on INS v. Bagamasbad, 429
U.S. 24 (1976), to support his argument. There the IJ and BIA had,
without determining eligibility, relied on the petitioner's
misrepresentation to a consular office to deny adjustment of
status. The court of appeals concluded that a determination of
eligibility was required nonetheless. The Supreme Court reversed
the court of appeals on the ground that “[a]s a general rule[,]
courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach." Id.
at 25. The case does not provide much guidance here. Petitioner
argues only that Congress, by setting conditions for eligibility,
wished there to be case by case consideration. In Bagamasbad,
there was individualized consideration of the case.
-49-
Chevron step one); MCI Telecomms. v. AT&T, 512 U.S. 218, 232-33
(1994) (examining legislative histories of later enactments and
finding them inconclusive); Pauley, 501 U.S. at 697-99 (examining
the text of statute and legislative history to determine that
Congress intended to delegate to the agency broad policymaking
discretion); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.
633, 648-50 (1990) (using legislative history in Chevron step one
as another "traditional tool[] of statutory construction" to
conclude that the statute did not "evince a clear congressional
intent"); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 214 (1988)
(using legislative history as a check where statutory text is clear
that the Secretary had no authority); Japan Whaling Ass'n v. Am.
Cetacean Soc'y, 478 U.S. 221, 233-41 (1986) (examining legislative
history and determining that Congress has not directly spoken to
the issue).30
30
The most frequently cited source for a purported rule that
reference to legislative history is impermissible at stage one is
Justice Kennedy's statement, in a footnote, that the use of
legislative history in stage one is impermissible. See K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 293 n.4 (1988) (noting in the
first step of a Chevron inquiry that "any reference to legislative
history is in the first instance irrelevant"). However, Justice
Kennedy's analysis on this point did not command a majority; only
one other Justice joined. Id. And since the decision in K Mart
Corp., Justice Kennedy has joined the majority opinions in Pension
Benefit and Brown & Williamson Tobacco, both of which utilize
legislative history in the Chevron step one analysis. See Pension
Benefit Guar. Corp., 496 U.S. at 649-50; Brown & Williamson Tobacco
Corp., 529 U.S. at 133. The footnote in K Mart was never
authoritative.
-50-
Our view is that where traditional doctrines of statutory
interpretation have permitted use of legislative history, its use
is permissible and even may be required at stage one of Chevron.
This appears to be the functional approach of some other circuits
as well. See Coke, 376 F.3d at 127 (using legislative history at
step one "without attaching primacy" to it); Am. Rivers v.
F.E.R.C., 201 F.3d 1186, 1196 & n.16 (9th Cir. 2000) (adhering to
the practice of considering legislative history in Chevron step
one).
Our approach encompasses the traditional rule that where
the plain text of the statute is unmistakably clear on its face,
there is no need to discuss legislative history. See Sutton v.
United Airlines, Inc., 527 U.S. 471, 481 (1999). Sutton, however,
does not go on to say that resort to legislative history is
impermissible where used as a check on the understanding of the
statute as viewed in light of its text and the statutory scheme as
a whole. Even the dissent in General Dynamics admits that
legislative history may confirm whether the plain text reading is
correct. Gen. Dynamics Land Sys., Inc., 124 S. Ct. at 1252
(Thomas, J., dissenting) ("Although the statute is clear, and hence
there is no need to delve into the legislative history, this
history merely confirms that the plain reading of the text is
correct."). Indeed, Justice Thomas's dissent (joined by Justice
Kennedy) itself considers legislative history. Id. at 1252-55; see
-51-
also Pension Benefit Guar. Corp., 496 U.S. at 649; Bowen, 488 U.S.
at 214 (using legislative history as a check where statutory text
is clear that the Secretary had no authority); Japan Whaling Ass'n,
478 U.S. at 233-41 (looking at legislative history to see whether
it contradicts implicit grant of authority to agency in statutory
text).
This circuit has used the approach of considering
legislative history in Chevron stage one analysis where appropriate
to discern and/or to confirm legislative intent. See Goldings v.
Winn, 383 F.3d 17, 21 (1st Cir. 2004) ("If the language of the
statute is plain and admits of no more than one meaning or if the
statute's legislative history reveals an unequivocal answer as to
the statute's meaning, we do not look to the interpretation that
may be given to the statute by the agency charged with its
enforcement") (emphasis added) (quoting Arnold v. United Parcel
Serv., Inc., 136 F.3d 854, 858 (1st Cir. 1998)); Arnold, 136 F.3d
at 858 (resorting to legislative history when the text of the
statute is not unambiguously clear); see also Strickland v. Comm'r,
Maine Dept. of Human Servs., 48 F.3d 12, 17, 20 (1st Cir. 1995)
(examining legislative history, "albeit skeptically," in Chevron
step one).
The perceived dangers of the use of legislative history
are particularly lessened where the legislative history is used as
a check on an understanding obtained from text and structure. As
-52-
we shall see, the legislative history, which is not disputed by the
respondent, seems to pose none of the problems of potential
manipulation of the system by members of Congress. See
Strickland, 48 F.3d at 17 n.3 (reciting the arguments of critics
that "legislative history is written by staffers rather than by
Congress itself; that it is easily manipulated; that it complicates
the tasks of execution and obedience; and that it often is shaped
by members of Congress who cannot achieve passage of a desired
interpretation in the actual text of an enacted statute").
In light of Supreme Court case law there is no reason to
think legislative history may not play other roles then simply
confirming a reading obtained by text and structure at stage one.31
Our use of the legislative history in that fashion is, we think,
unexceptional.
31
In fact, the Supreme Court has used legislative history in
different ways at stage one. It has used it merely to confirm
plain text reading. Pension Benefit Guar. Corp., 496 U.S. at 649;
Bowen, 488 U.S. at 214; Japan Whaling Ass'n, 478 U.S. at 233-41.
It has used legislative history to give content to specific
statutory terms said to have different textual meanings. Gen.
Dynamics Land Sys., Inc., 124 S. Ct. at 1244 (statutory term "age"
in ADEA refers to use of ADEA as a remedy for "unfair preference
based on relative youth"). In Brown & Williamson Tobacco Corp.,
the Supreme Court stressed that "a reviewing court should not
confine itself to examining a particular statutory provision in
isolation." 529 U.S. at 132. In addition to the requirement to
read the text in context and in light of its place in the overall
statutory scheme, the court also found permissible resort to "other
Acts, particularly where Congress has spoken subsequently and more
specifically to the topic at hand." Id. at 133. The court then
explored the legislative history of both the original and later
statutes. Id. at 144-55.
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We look to legislative history to check our understanding
and determine whether there is a clearly expressed intention by the
Congress which is contrary to the plain language of the statute.
See Cardoza-Fonseca, 480 U.S. at 432 & n.12. Petitioner argues
that the legislative history evidences Congress's intention to give
parolees, regardless of whether they were in removal proceedings,
the ability to adjust status and that this intention is consistent
with the goals Congress wanted to accomplish in enacting the
legislation.
The INA, enacted in 1952, allowed "[t]he status of an
alien who was lawfully admitted to the United States as a bona fide
nonimmigrant" to be adjusted to that of permanent resident alien if
the alien met certain other eligibility requirements. Pub. L. No.
414, 66 Stat. 163, 217 (1952).
The version of 8 U.S.C. § 1255(a) relevant to this case
was established in 1960, when Congress amended 8 U.S.C. § 1255 to
include paroled aliens as eligible for adjustment of status. Pub.
L. No. 86-648, 74 Stat. 504, 505 (1960). At the time the amendment
was passed, the statutory provision for the granting of parole to
certain inadmissible aliens was substantially similar to the
statute governing parole today.32
32
"The Attorney General may in his discretion parole into the
United States temporarily under such conditions as he may prescribe
for emergent reasons or for reasons deemed strictly in the public
interest any alien. . . ." INA, Pub. L. No. 414, 66 Stat. 188
(1952).
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The legislative history of the 1960 amendments is
explicit that Congress recognized numerous problems with the
process for adjustment of status under the 1952 law and believed
these problems were of serious concern. The Senate Report states:
The Administrative Operations in the
application of [the adjustment of status
provision], and other related features of the
General Immigration Law regarding adjustment
of status of aliens within the United States,
have been the subject of close scrutiny by the
Committees on the Judiciary of both the Senate
and the House of Representatives. For a
considerable period of time, there has
appeared to be a steadily mounting number of
cases in which aliens determined by the
Immigration and Naturalization Service to be
eligible for permanent residence in the United
States in accordance with all the applicable
provisions of the Immigration and Nationality
Act, had to comply with what appeared in those
cases to be an unnecessary procedure known as
preexamination and voluntary departure with a
view toward applying for an immigrant visa in
one of the U.S. Consular Offices in Canada.
During the Fiscal Year ending June 30, 1958,
more than 7,000 aliens in the United States
had their eligibility to enter as immigrants
determinated in this country prior to sending
them to Canada where they briefly appeared
before a U.S. consular officer, and then
returned to this country with an immigrant
visa.
In addition, the review of a
considerable number of private relief
immigration bills seeking adjustment of status
of nonimmigrants has further demonstrated to
the Committee the desirability of general
amendatory legislation on this subject.
S. Rep. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124,
3136.
-55-
The Report states that Congress, in amending the
adjustment of status statute, wished to avoid a situation that,
not only necessitate[s] the reinstatement of
the fallacious procedure known as
'preexamination' and consisting of round trips
to Canada for the sole purpose of obtaining an
immigrant visa, but will certainly greatly
increase the number of private bills. The
Congress has repeatedly expressed its
disapproval of the 'preexamination' procedure
and has similarly expressed its
dissatisfaction with the mounting volume of
private legislation.
Id. at 3137.
In response to those problems, Congress in 1960 amended
the adjustment of status provision. The new provision read: "The
status of an alien, other than an alien crewman, who was inspected
and admitted or paroled into the United States may be adjusted . .
. to that of an alien lawfully admitted for permanent residence .
. . ." 74 Stat. at 505. This change broadened the category of
individuals eligible for adjustment of status relief. S. Rep. No.
86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3125.33
33
The 1960 legislation can be viewed as striking a balance --
while it broadened the number of aliens able to apply for
adjustment of status, it also defined the category of aliens
eligible so that only the deserving could be considered for the
relief. This structure comports with Congress's concern to allow
only worthy aliens the opportunity to apply for adjustment of
status. As the Senate Report states,
The language of the instant bill has been carefully drawn
so as not to grant undeserved benefits to the unworthy or
undesirable immigrant. This legislation will not benefit
the alien who has entered the United States in violation
of the law.
-56-
In changing the system, Congress sought to ameliorate
three types of problems caused by the old system. Congress wished
to eliminate the burden on inspected and admitted or paroled aliens
and their American relatives of having to leave the United States
and apply from a consular office abroad (often from Canada).34 See
id. at 3137 ("Aliens eligible to benefit from this legislation .
. . would also save the expense of journeys to Canada, rather high
when consideration is given to the fact that many of the
prospective eligible immigrants live with their families in areas
rather remote from the U.S. Consular offices in Canada.").
Congress was also concerned with the costs to the
government of the then extant system, caused by the large number of
private bills presented to it for adjustment of status for named
S. Rep. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124,
3136. Congress mentioned that it believed that the legislation
would benefit mainly aliens "who[] are spouses of U.S. citizens, or
skilled specialists whose services are urgently needed in the
United States, or ministers of religious denominations, or members
of other general or special nonquota immigrant classes." Id. at
3137. Congress also specifically intended to benefit those
individuals who had been paroled into the country as refugees. Id.
at 3124.
34
The specific focus of Congress on these problems of who may
apply for adjustment of status and how also indicates that Congress
considered the matter to be important, and so did not leave it to
the agency. See Brown & Williamson Tobacco Corp., 529 U.S. at 159
(citing Justice Stephen Breyer, Judicial Review of Questions of Law
and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also
ask whether the legal question is an important one. Congress is
more likely to have focused upon, and answered, major questions,
while leaving interstitial matters to answer themselves in the
course of the statute's daily administration.")).
-57-
individuals. Congress had repeatedly expressed its
"dissatisfaction with the mounting volume of private legislation"
introduced to adjust the status of certain aliens. Id. at 3137.
By adopting the 1960 legislation, Congress wished to alleviate this
burden on itself. See id. at 3136. There is some evidence in the
legislative history that Congress wished also to alleviate the
burden imposed on consular offices to process applications for
adjustment of status. The Senate Report emphasizes that in fiscal
year 1958, alone, over 7,000 individuals had to leave the Untied
States and apply for a visa in Canada. Id. Indeed, the Department
of State commented on the legislation.
Finally, in expanding the group of individuals eligible
for adjustment of status, Congress clearly evaluated the
administrative inconvenience to the INS of the expanded category of
those eligible to apply for adjustment of status and nonetheless
altered the prior procedure. Indeed, the administrative burdens of
the various provisions involved were given "close scrutiny" by
Congress. Id.
The effect of the regulation before us, limiting the
ability of paroled aliens in removal proceedings to adjust status,
will predictably be to re-institute the very problems which
Congress attempted to eliminate in 1960. It forces paroled aliens
in removal proceedings to leave the country to apply for adjustment
of status. This imposes considerable burdens on the aliens and,
-58-
where applicable, their American spouses and relatives. The effect
of the regulation, predictably, will be to increase the number of
private bills seeking individual adjustment of status, thus
burdening Congress. It will also increase the burden on consular
offices abroad, because aliens who are otherwise available to
adjust status will now have to apply through the consular office.
The 1960 legislative history of 8 U.S.C. § 1255(a)
confirms and enhances our understanding of the statute.
E. Effect of IIRIRA
We consider briefly the arguments of both sides that rely
on later revisions to the INA, specifically IIRIRA, to support
their different understandings of what Congress meant in the
adjustment of status provisions of 8 U.S.C. § 1255. There is no
claim that section 1255(a) was amended by IIRIRA or any other
statute in any relevant way.
The Attorney General relies on provisions of IIRIRA to
argue that the original understanding of the statute in 1960 must
be altered in light of later law, and the statute must now be read
as introducing at least ambiguity into section 1255(a), despite the
fact that section 1255(a) itself was not amended. The Attorney
General argues that new regulations were required due to IIRIRA's
replacement of "entry" with "admission" as the criterion which
determines which of two sets of grounds of removal, 8 U.S.C. §
1882(a) or 8 U.S.C. § 1227, applies in removal proceedings.
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Further, the Attorney General argues, under 8 U.S.C. §
1182(d)(5)(A), a parole of an alien is not the admission of that
alien.
Our earlier analysis of the meaning of 8 U.S.C. § 1255(a)
in light of the statutory context takes into account the statutory
scheme as it exists under IIRIRA. The Attorney General's arguments
do not change this understanding; they are unpersuasive because
they do not concern the eligibility of paroled aliens to apply for
adjustment of status under section 1255(a) or in any way act to
limit the eligibility of paroled individuals –- a group Congress
specifically deemed eligible –- to adjust status. The
classification of paroled aliens as "not admitted" is not new to
the passage of IIRIRA and does not change the treatment of
parolees. Also, the reclassification of aliens "present pursuant
to an entry" to "applicants for admission" does not affect the
status of paroled aliens, who have always been considered
applicants for admission.
The petitioner relies on IIRIRA for two points.
Specifically, the petitioner argues that since 1960 the agency and
Congress have consistently understood the statute to be as
petitioner reads it. Moreover, in the major revisions of the
immigration laws since 1960, which largely restricted aliens'
efforts to remain in this country, Congress has never once
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restricted the ability of paroled aliens to apply for adjustment of
status.
This confirms our understanding of the clear meaning of
the statute.35 Consistent with our interpretation of the statute,
in our view, the changes to the statute with the passage of IIRIRA
work against the Attorney General's argument, not in favor of it.
Under IIRIRA and previous amendments, Congress amended section 1255
to limit the eligibility for adjustment of status so that certain
types of aliens may not apply. Historical & Statutory Notes, 1996
Amendments, 8 U.S.C.A. § 1255. Congress has directly addressed the
issue of eligibility for adjustment of status on several occasions,
yet these amendments did not limit the category of paroled aliens
who may apply for adjustment of status, and they neither gave the
Attorney General discretion to redefine eligibility nor did they
endorse the additional restrictions on eligibility contained in the
Attorney General's regulation. See Brown & Williamson Tobacco,
Corp., 529 U.S. at 137 (relying in part on later actions of
Congress which specifically address the regulation of tobacco as
35
When Congress speaks "subsequently and more specifically to
the topic at hand," this can shed light as to the meaning of the
statute. Brown & Williamson Tobacco Corp., 529 U.S. at 133; see
also Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330 (1988)
(When Congress has amended a statute in other ways, but not
addressed the specific issue in question, court can consider
congressional silence in the appropriate historical context and use
it as evidence of congressional intent not to abrogate well-
established doctrine.).
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evidence that the FDA did not have authority to regulate tobacco).
F. Reasonableness
Many of the Attorney General’s arguments go to the
reasonableness of the regulation. This is a Chevron step two
argument. But as previously explained, this is a Chevron step one
case, and even the Attorney General’s reasonable actions cannot
control in the face of clear contrary congressional intent.
Even where there is ambiguity, reasonableness is assessed
in light of the statutory scheme. For example, the Attorney
General justifies the regulation on the basis that the exercise of
discretion was consistent with Congress’s desire to speed up the
removal process through expedited removal proceedings. 62 Fed.
Reg. 444, 452 (Jan. 3, 1997). The desire for administrative
efficiency cannot displace clear congressional intent.
Also, the Attorney General argues he has a facially
legitimate and bona fide reason for the regulation, citing to the
Immigration Control and Financial Responsibility Act of 1996,36
which was intended to "increase control over immigration . . .
expediting the removal of excludable and deportable aliens,
especially criminal aliens, and reducing the abuse of parole and
36
The Immigration Control and Financial Responsibility Act of
1996, SB 1664, was passed by the Senate on May 2, 1996. It was
placed in conference with the House counterpart, and was the
predecessor of what became IIRIRA.
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asylum provisions."37 S. Rep. No. 104-249 at 2 (1994) (not reported
in U.S.C.C.A.N.). The short reply is that Congress did not, even
in 1996, give the Attorney General unfettered discretion to
expedite removal and reduce abuse of parole in disregard of the
statutory scheme. Congress expressly did not alter the basic
structure of eligibility for application for adjustment of status
while simultaneously making a limited category of parolees
ineligible. See Cardoza-Fonseca, 480 U.S. at 444-45 (noting the
agency cannot ignore Congress’s desired scheme in the asylum area).
Finally, the position that the Attorney General takes in
the 1997 regulation is inconsistent with the agency’s long-standing
previous practice. Arriving aliens in removal proceedings were
always able to adjust status before the district director prior to
the promulgation of the 1997 regulations. See In re Castro-Padron,
21 I. & N. Dec. 379 (BIA 1996). As noted in Cardoza-Fonseca, "An
additional reason for rejecting the [Attorney General's] request
for heightened deference to [his] position is the inconsistency of
the positions the [agency] has taken through the years. An agency
interpretation of a relevant provision which conflicts with the
agency's earlier interpretation is 'entitled to considerably less
37
Legislative history of subsequently enacted statutes "will
rarely override a reasonable interpretation of a statute that can
be gleaned from its language and legislative history prior to its
enactment." See Doe v. Chao, 124 S. Ct. 1204, 1212 (2004). An
expressed intent in the legislative history of a later more general
statute can not overcome the expressed intent in the statute
specifically in question.
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deference' than a consistently held agency view." Cardoza-Fonseca,
480 U.S. at 446 n.30 (quoting Watt v. Alaska, 451 U.S. 259, 273
(1981)). So even if there were ambiguity in section 1255(a), the
agency would be entitled to less than normal deference.
V.
We find the regulation, 8 C.F.R. § 245.1(c)(8), to be
invalid as inconsistent with 8 U.S.C. § 1255(a); accordingly we
vacate the removal order and remand the case to the BIA for
proceedings consistent with this opinion. So ordered.
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Succar v. Ashcroft
Court: Court of Appeals for the First Circuit
Date filed: 2005-01-05
Citations: 394 F.3d 8
Copy CitationsCombined Opinion