United States Court of Appeals
For the First Circuit
No. 04-1060
SANTA RODRIGUEZ DE RIVERA,
Petitioner,
v.
JOHN ASHCROFT, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert M. Warren 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 Department of
Justice, were on brief, for respondent.
January 5, 2005
LYNCH, Circuit Judge. This immigration case presents
legal issues overlapping with those resolved by Succar v. Ashcroft,
No. 03-2445, released this same day. The petitioner is the wife of
an American citizen and is also an arriving alien who was paroled
and then placed in removal proceedings. Pursuant to a regulation,
8 C.F.R. § 1245.1(c)(8), saying arriving aliens in removal
proceedings could not apply for adjustment of status, she was
denied an opportunity (in her case, a second opportunity) to apply
for adjustment of status.
Succar held 8 C.F.R. § 1245.1(c)(8)1 to be invalid as
inconsistent with the relevant statute, 8 U.S.C. § 1255, to the
extent that the regulation barred paroled aliens in removal
proceedings from applying for adjustment of status. Succar held
that the Attorney General's discretion as to whether to grant
adjustment of status did not include the power to redefine
eligibility to apply for adjustment of status for paroled aliens
who were statutorily granted eligibility pursuant to 8 U.S.C. §
1255(a). We now remand this case to the Board of Immigration
Appeals (BIA) for consideration in light of our holding in Succar.
1
8 C.F.R. § 1245.1(c)(8) is identical to 8 C.F.R. §
245.1(c)(8), which is the provision cited in the parties' briefs.
§ 245.1(c)(8) applies to the immigration agencies in the Department
of Homeland Security. § 1245.1(c)(8) applies to the Executive
Office for Immigration Review in the Department of Justice, which
includes the Immigration Judge and the Board of Immigration
Appeals.
-2-
I.
Santa Rodriguez de Rivera, a native and citizen of the
Dominican Republic, entered the United States without inspection in
1990 and lived here illegally. She married a United States citizen
in 1993 and first applied for adjustment of status, with the
Immigration and Naturalization Services's (INS)2 District Director,
on September 26, 1996, after her husband had filed an I-130
Petition for Alien Relative that had been approved by the INS.
Rivera was eligible to apply for adjustment of status under 8
U.S.C. § 1255(i) (the Life Act amendments).
While the decision on her 1996 application for adjustment
of status was pending, Rivera left the United States to travel to
the Dominican Republic. She claims that she was granted advance
parole by the INS before leaving, but the government denies this;
she has, at any rate, not produced evidence of the advance parole.3
2
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).
3
Advance parole is pre-authorization to enter the country. See
8 C.F.R. § 212.5(f). It can be granted, as here, to an alien who
is currently in the United States, but who wants assurance that,
when she leaves the country, she will be able to return. Samirah
v. O'Connell, 335 F.3d 545, 548 (7th Cir. 2003).
At oral argument, Rivera produced an INS processing sheet
written up before she left the country (dated January 2, 1997),
during an interview dealing with her first adjustment of status
application. This sheet had a notation stating: "I-512 -- warned."
I-512 is the advance parole form. 8 C.F.R. § 212.5(f). In
response to a request from this court, the government produced a
-3-
Rivera returned to the United States on January 17, 1998, via New
York City, and was paroled at that time for deferred inspection in
Boston on February 26, 1998. Rivera reported for inspection in
Boston on February 26 and on March 12, 1998, but no inspector was
available on either date. Finally, she was inspected and paroled
on April 10, 1998. Her parole at that time had an indefinite
expiration and was for the purposes of pursuing her initial
adjustment of status application.
Her first adjustment of status application -- the one
filed prior to her departure and reentry -- was denied on October
23, 2000. The INS District Director cited "lack of prosecution
(abandonment)" as the reason, elaborating that two forms had been
sent to Rivera after her adjustment interview and that she had not
responded to these forms with "extensive, material documentation."
Incomplete responses were sent on the first form, and nothing at
all on the second. Nonetheless, the notice denying her application
concluded that "[Rivera] may renew [her] application for status as
a permanent resident in any deportation proceeding."
On the same date as the issuance of the denial of her
adjustment of status application, the INS sent Rivera a Notice to
sworn affidavit from the interviewer who wrote the notation. He
stated that the notation merely reflected his standard practice of
warning Rivera that she could not leave the country while her
adjustment of status application was pending without receiving
advance parole and that there was no evidence in the administrative
file that Rivera ever asked for or received advance parole.
-4-
Appear ordering her to appear at removal proceedings in front of an
Immigration Judge (IJ) in Boston. The Notice charged her as
subject to removal. It said nothing about her parole status.
In removal proceedings before the IJ, Rivera moved to
terminate, administratively close, or continue the removal
proceedings so that she could again apply for adjustment of status
before the District Director. She also sought to have the IJ hear
her adjustment application during the course of the removal
proceedings. All of these motions were denied by the IJ in his
oral decision of June 18, 2002. The IJ noted that she "has no
jurisdiction to hear the adjustment case" because Rivera "is an
arriving alien." 8 C.F.R. § 1245.1(c)(8). The IJ also refused to
terminate the case, given that the INS opposed the motion. Rivera
also contested removability, but the IJ found that removability was
proven by clear and convincing evidence and ordered Rivera removed
to the Dominican Republic. The IJ concluded that Rivera would have
to apply for a permanent resident visa from abroad rather than
adjust her status from inside the United States.4
Rivera filed a timely appeal with the BIA on July 11,
2002. The BIA affirmed all rulings. The BIA held that the IJ
4
Rivera points out that if she were forced to leave the country
and apply for a permanent resident visa from abroad, she would be
barred from reentering the United States for ten years because she
had accrued more than one year of unlawful presence in the United
States. 8 U.S.C. § 1182(a)(9)(B)(i). Waiver of this bar is in the
absolute discretion of the Attorney General. 8 U.S.C. §
1182(a)(9)(B)(v).
-5-
correctly determined that Rivera was an arriving alien and that by
regulation, arriving aliens in removal proceedings are ineligible
to apply for adjustment of status anywhere. The BIA cited 8 C.F.R.
§ 1245.1(c)(8), the exact regulation invalidated by this court in
Succar. The BIA also noted that the "narrow exception" from §
1245.1(c)(8) for some arriving aliens who received advance parole
was inapplicable because Rivera "has not offered any evidence" that
she received advance parole before leaving the United States and
traveling to the Dominican Republic. Finally, the BIA noted that
the IJ correctly refused to terminate or administratively close the
removal proceedings because "once the [agency] has initiated
removal proceedings, neither we nor the [IJ] has the authority to
terminate proceedings unless the [agency] fails to establish that
the alien is removable as charged."5
Rivera timely appealed the BIA's decision to this court.
She does not contest removability, but only appeals the BIA's
determination that the IJ could not hear Rivera's application for
5
The BIA also cited In re Castro-Padron, 21 I&N Dec. 379, 380
(BIA 1996), for the proposition that "[t]he [agency] may review and
act on [Rivera's] application for adjustment of status
independently." We are puzzled by this statement, which amounts to
a misunderstanding of the relevant regulations and was misleading
to Rivera. As we explained in Succar, under 8 C.F.R. §
1245.1(c)(8), once an arriving alien had been placed in removal
proceedings, neither the IJ nor the district director of the
immigration agency could act on any application for adjustment of
status; the alien thus had no venue in which to apply for
adjustment in the United States. In re Castro-Padron was a 1996
case; 8 C.F.R. § 1245.1(c)(8) was promulgated in 1997.
-6-
adjustment of status and that the IJ could not have terminated,
administratively closed, or continued the removal proceedings so
that Rivera could file her application for adjustment of status
with the District Director.
II.
The IJ and BIA both denied Rivera's motions to hear the
adjustment application within the removal proceeding, or in the
alternative, to terminate, administratively close, or continue the
removal hearing so that adjustment could be pursued in some other
forum, on the sole basis of 8 C.F.R. § 1245.1(c)(8), the regulation
preventing an "arriving alien" in removal proceedings from applying
for adjustment of status. In addition, the government's brief to
this court focused only on the validity of the regulation.
Since the agency action, under Succar, cannot be
sustained on the stated grounds, the appropriate remedy is to
remand to the BIA for further proceedings consistent with the
holding in Succar. We do not address any other issues. See INS v.
Ventura, 537 U.S. 12, 16-17 (2002) (per curiam); SEC v. Chenery
Corp., 318 U.S. 80, 95 (1943) (remanding case to agency for further
consideration after determining that "the grounds upon which the
agency acted in exercising its powers were not those upon which its
action can be sustained").
We do not, for example, address the issue of whether
Rivera's application for adjustment of status is somehow number-
-7-
barred because she already filed one earlier application, which was
denied. None of the IJ, the BIA, or the government in its brief to
this court have suggested that any such number bar exists. Indeed,
the District Director's notice of denial to Rivera indicated that
the agency is normally willing to accept a second application for
adjustment of status in the course of removal proceedings, absent
the effect of 8 C.F.R. § 1245.1(c)(8).6
Similarly, we do not address Rivera's arguments aimed at
finding a way around 8 C.F.R. § 1245.1(c)(8). She argues that she
is not an "arriving alien" for purposes of that regulation because
of the type of parole she received, and she argues that adjustment
of status under 8 U.S.C. § 1255(i) (as opposed to adjustment under
8 U.S.C. § 1255(a)) is not barred by the regulation.
We vacate the removal order and remand the case to the
BIA for further proceedings consistent with Succar v. Ashcroft, No.
03-2445, released this same day. So ordered.
6
Similarly, there has been no holding from the IJ or BIA or
argument from the government that Rivera is ineligible under the
statutory requirements to apply for adjustment of status under both
of the two possible routes, 8 U.S.C. § 1255(a) and 8 U.S.C. §
1255(i).
-8-