Brito v. Mukasey

06-3974-ag
Brito v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

_____________________

August Term, 2006
(Argued: June 21, 2007 Decided: March 26, 2008)

Docket No. 06-3974-ag

_____________________

RAMON BRITO,
Petitioner,

-v.-

MICHAEL B. MUKASEY, Attorney General,*
Respondent.
_______________________

BEFORE: MINER, SACK, and HALL, Circuit Judges.

_______________________

Petition for review of a final decision of the Board of Immigration Appeals. Petitioner

failed to exhaust the issue of whether he was properly designated an arriving alien and thus we

do not reach it. Because Petitioner’s current application for adjustment of status is new and

separate from the application he previously filed, the Immigration Judge lacks jurisdiction to

adjudicate it. Petitioner lacks standing to argue that regulations withholding from immigration

judges jurisdiction to adjudicate adjustment of status applications are ultra vires. Accordingly,

the petition is denied.

*
Attorney General Michael B. Mukasey is substituted for former Attorney General
Alberto Gonzales pursuant to Fed. R. App. P. 43(c)(2).

1
 _________________________

LILA SLJIVAR, Wilens & Baker, P.C., New York, NY, for Petitioner.

JESSE M. BLESS, Office of Immigration Litigation (Peter D. Keisler, Assistant
Attorney General, Civil Division, David V. Bernal, Assistant Director, on the
brief), U.S. Department of Justice, Washington, D.C., for Respondent.
________________________

HALL, Circuit Judge:

Petitioner Ramon Brito asks this Court to review the July 31, 2006 decision of the Board

of Immigration Appeals (“BIA”) affirming in part and modifying in part the April 27, 2005

decision of Immigration Judge (“IJ”) Noel Brennan denying Brito’s application for adjustment of

status. In re Ramon Brito, No. A75 800 038 (B.I.A. July 31, 2006), aff’g No. A75 800 038

(Immig. Ct. N.Y. City Apr. 27, 2005). Brito argues: (1) because he returned to the United States

pursuant to a grant of advance parole, he erroneously was designated an “arriving alien”; (2) the

IJ has jurisdiction over his application for adjustment of status because it is a renewed version of

the application he filed prior to his departure from the United States—upon which his grant of

advance parole was based; and (3) the regulations withholding from the IJ jurisdiction to

adjudicate his application for adjustment of status are ultra vires. We conclude: (1) Brito failed

to exhaust before the agency the issue of his designation as an arriving alien and thus we do not

reach it; (2) because Brito’s present application for adjustment of status is new and separate from

his previously filed application, the IJ lacks jurisdiction to adjudicate it; and (3) Brito lacks

standing to assert his argument that the applicable regulations are ultra vires. Accordingly, we

deny the petition for review.

2
 I. Background

Petitioner Ramon Brito is a native and citizen of the Dominican Republic. Brito entered

the United States without inspection in March 1996. One month later, Brito married his first

wife, Mildred Brito (formerly Mildred Melendez). Approximately one year after his marriage,

Brito filed an I-485 application to adjust his status to that of a person admitted for lawful

permanent residence; his wife simultaneously filed an I-130 immigrant visa petition on Brito’s

behalf. While his I-485 application was pending, Brito requested, and received, “advance

parole”1 permission to visit his ailing mother in the Dominican Republic and then return to the

United States. The Immigration and Naturalization Service (“INS”)2 granted Brito advance

parole and warned him that in the event his application for adjustment of status was denied, he

would be subject to removal proceedings. In December 1997, pursuant to his advance parole

status, Brito departed the United States. He returned approximately one month later, and on

January 16, 1998, Brito applied for admission to enter the United States. He was paroled in until

January 15, 1999. On March 29, 2000, due to Mildred Brito’s failure to report to a scheduled

1
“Advance parole is a practice whereby the government agrees, before an alien arrives at
a port of entry, to allow the alien’s physical entry to the United States once he arrives (and while
his immigration status is being resolved by immigration officials).” Ibragimov v. Gonzales, 476
F.3d 125, 128 n.3 (2d Cir. 2007).
2
Pusuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135,
the INS was abolished and its functions reassigned to subdivisions of the Department of
Homeland Security—the Bureau of Immigration and Customs Enforcement (“ICE”) and the
Bureau of United States Citizenship and Immigration Services (“USCIS”). See Zerrei v.
Gonzales, 471 F.3d 342, 344 n.1 (2d Cir. 2006) (per curiam); Spina v. Dep’t of Homeland Sec.,
470 F.3d 116, 119 n.1 (2d Cir. 2006). Because the actions at issue in this appeal were taken by
the former INS, we continue to refer to that agency. See, e.g., Spina, 470 F.3d at 119 n.1.

3
interview, the INS denied her I-130 petition. At the same time, the INS denied Brito’s I-485

application and terminated his parole status.

On May 25, 2000, the INS served Brito with a notice to appear to show cause why he

should not be removed from the United States. The INS charged that Brito was an “arriving

alien” removable from the United States pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an

immigrant who at the time of admission was not in possession of a valid entry document. Brito

denied he was an arriving alien and denied being removable as charged.

On March 5, 2003, through counsel, Brito notified the Immigration Court of the

following matters: he had divorced his wife; he had remarried another United States citizen, Judy

Brito (formerly Judy Almonte); his new wife had filed on Brito’s behalf a second I-130 petition;

and Brito had filed a second I-485 application. Brito asserted that he was improperly designated

an arriving alien because he had been granted advance parole to leave and return to the United

States.3

On April 27, 2005, the IJ determined that Brito was an arriving alien and removable as

charged. Specifically, the IJ determined that an alien like Brito who seeks entry into the United

States pursuant to a grant of advance parole is an arriving alien. The IJ pointed to 8 C.F.R.

§ 1.1(q) which provided that “[a]n arriving alien remains such even if paroled pursuant to [8

3
Brito also argued to the IJ that he was erroneously designated an “arriving alien”
because he had not been paroled in pursuant to 8 U.S.C. § 1182(d)(5). Brito does not raise that
argument before this Court and it is, therefore, abandoned. See Yueqing Zhang v. Gonzales, 426
F.3d 540, 542 n.1 (2d Cir. 2005).

4
U.S.C. § 1182(d)(5)].”4 The IJ also determined that Brito is not eligible to adjust his status in

immigration court.

Brito appealed to the BIA arguing that the IJ has jurisdiction over his application. Brito,

however, did not challenge in his brief to the BIA the IJ’s determination that Brito was an

arriving alien. In its per curiam decision of July 31, 2006, the BIA affirmed the IJ’s

determination that Brito was an arriving alien. The BIA also affirmed the IJ’s determination that

Brito cannot pursue adjustment of status in immigration court but it did so for different reasons

than those cited by the IJ. The BIA explained that while Brito’s appeal was pending before it, the

Attorney General had enacted interim regulations clarifying that, subject to one narrow

exception, IJs lack jurisdiction to adjudicate applications for adjustment of status. That

exception, explained the BIA, applies only where the alien has been placed in removal

proceedings after having departed and returned to the United States pursuant to a grant of

advance parole and seeks to adjudicate an application for adjustment he filed prior to his

4
The second sentence of 8 C.F.R. § 1.1(q) was amended on May 12, 2006 to read:

An arriving alien remains an arriving alien even if paroled pursuant to section
212(d)(5) of the Act, and even after any such parole is terminated or revoked.
However, an arriving alien who was paroled into the United States before April 1,
1997, or who was paroled into the United States on or after April 1, 1997, pursuant
to a grant of advance parole which the alien applied for and obtained in the United
States prior to the alien’s departure from and return to the United States, will not be
treated, solely by reason of that grant of parole, as an arriving alien under section
235(b)(1)(A)(i) of the Act.

Eligibility of Arriving Aliens in Removal Proceedings To Apply for Adjustment
of Status and Jurisdiction To Adjudicate Applications for Adjustment of Status, 71 Fed. Reg.
27585, 27591 (May 12, 2006). For purposes of this petition for review, we apply the previous
version that was in effect at the time of Brito’s agency proceedings. We note that the amended
definition varies only slightly from the earlier version.

5
departure. The BIA noted that Brito had filed his second I-485 application—the one at

issue—after he returned to the United States and was placed in removal proceedings and that

nothing in the regulations permits an alien to substitute a newly filed application for an old one.

The BIA held that the IJ lacks jurisdiction to adjudicate Brito’s application but noted that Brito

can pursue his application for adjustment with the Bureau of United States Citizenship and

Immigration Services (“USCIS”). Brito now petitions this Court for a review of the BIA’s

decision.

II. Discussion

Brito argues that both the IJ and BIA erred in designating him an arriving alien, that the IJ

has jurisdiction to adjudicate his application for adjustment of status even under immigration

regulations as amended, and that the IJ has jurisdiction to adjudicate his application because the

regulations prohibiting the adjudication of applications for adjustment of status by IJs are ultra

vires. Because the BIA’s decision affirms in part and modifies in part the decision of the IJ, we

review the decision of the IJ as modified by the BIA. See Dong Gao v. BIA, 482 F.3d 122, 125

(2d Cir. 2007).

A. Brito’s Designation as an Arriving Alien

“A court may review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). In Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 & n.1 (2d Cir. 2007), we clarified that while

not jurisdictional, issue exhaustion is mandatory. Indeed, in order to preserve an issue for review

by this Court, the petitioner must not only raise it before the BIA, but do so with specificity.

6
Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir. 2007) (citing Foster v. INS, 376 F.3d 75, 78

(2d Cir. 2004)). Here, as the government asserts, Brito not only failed to contest before the BIA

his designation as an arriving alien, but also conceded that designation both in his statements of

reasons for appealing the decision of the IJ, see Attachment to Form EOIR-26, Notice of Appeal

from a Decision of an Immigration Judge, No. A75 800 038 (B.I.A. May 23, 2005) (“Mr. Brito

can adjust his status even though he is an arriving alien . . . .”), and in his brief on appeal to the

BIA, see Respondent’s Brief on Appeal at 5 (B.I.A. May 26, 2006) (discussing whether Brito

satisfies a regulation that would allow the IJ jurisdiction to adjudicate an arriving alien’s

application for adjustment of status). Thus, he has failed to preserve for review by this Court the

issue of whether his designation as an arriving alien was erroneous.5

5
We note, however, that even had Brito exhausted the issue of his designation as an
arriving alien, we would affirm that designation. The term “arriving alien,” as it was defined in 8
C.F.R. § 1.1(q), see supra n.4, is

an applicant for admission coming or attempting to come into the
United States at a port-of-entry . . . . An arriving alien remains such
even if paroled pursuant to section 212(d)(5) of the Act, except that
an alien who was paroled before April 1, 1997, or an alien who was
granted advance parole which the alien applied for and obtained in
the United States prior to the alien’s departure from and return to the
United States, shall not be considered an arriving alien for purposes
of [INA § 235(b)(1)(A)(i)].

As we recently explained in Ibragimov v. Gonzales, 476 F.3d 125, 136 (2d Cir. 2007), 8 C.F.R.
§ 1.1(q) carves out only two exceptions to the otherwise blanket rule that an arriving alien
remains such even if allowed to enter the United States pursuant to a grant of parole. Neither of
those exceptions apply in Brito’s case. The first exception applies only to aliens paroled in
before April 1, 1997. Brito was paroled in on January 16, 1998. The second exception prevents
aliens who have been granted advance parole from being considered arriving aliens, but only for
purposes of INA § 235(b)(1)(A)(i)—a provision of the statute that deals specifically with
expedited removal proceedings. Because Brito, like the petitioner in Ibragimov, was afforded a
regular, non-expedited hearing, that exception is likewise inapplicable. See Ibragimov, 476 F.3d
at 136.

7
 B. The IJ’s Jurisdiction Under the Regulations

i. Statutory Background

Because the regulations governing the IJ’s jurisdiction over applications for adjustment of

status, prior to their recent amendment, have been the subject of a considerable amount of

litigation concerning their validity, we provide some history.

Prior to 1960, any alien in the United States no longer in possession of a valid immigrant

visa but eligible for adjustment of status had to go abroad to apply for permanent resident status.

See Akhtar v. Gonzales, 450 F.3d 587, 590 (5th Cir. 2006); Succar v. Ashcroft, 394 F.3d 8, 13

(1st Cir. 2005). In 1960, Congress eliminated that burden by expanding eligibility for adjustment

of status to include all aliens “inspected and admitted or paroled,” allowing aliens in the United

States, with or without valid visas, to apply for immigrant status without having to depart. 8

U.S.C. § 1255(a); Akhtar, 450 F.3d at 590; Succar, 394 F.3d at 14. Section 1255(a) commits to

the discretion of the United States Attorney General, “and under such regulations as he may

prescribe,” the granting of applications for adjustment of status. 8 U.S.C. § 1255(a). In addition,

8 U.S.C. § 1252(a)(2)(B)(i) makes unreviewable the Attorney General’s exercise of that

discretion. Akhtar, 450 F.3d at 590; see also Succar, 394 F.3d at 19 n.15.

In 1997, following the enactment of the Illegal Immigrant Reform and Immigration

Responsibility Act (“IIRIRA”), the Attorney General issued new regulations to implement

IIRIRA. In addition to providing the above-mentioned definition of “arriving alien,” see 8 C.F.R.

§ 1.1(q), the Attorney General promulgated 8 C.F.R. § 245.1(c)(8), which rendered certain

categories of aliens, including any arriving alien in removal proceedings, ineligible to apply for

adjustment of status, and 8 C.F.R. § 245.2(a)(1), which permitted arriving aliens not in removal

8
proceedings to apply for adjustment of status with the INS’s district director. Section 245.2(a)(1)

provided an exception to the general rule that arriving aliens in removal proceedings could not

apply for adjustment of status—an arriving alien who entered the United States pursuant to a

grant of advance parole could pursue before the IJ a renewed application for adjustment of status

that had been filed before the alien’s departure from the United States and denied by the district

director. In sum, apart from this narrow exception, sections 245.1(c)(8) and 245.2(a)(1) had the

combined effect of preventing arriving aliens in removal proceedings from filing for adjustment

of status either with the district director (which they had been able to do prior to the enactment of

the IIRIRA) or with the IJ. Akhtar, 450 F.3d at 591; Succar, 394 F.3d at 17-18.

Those regulations soon engendered a Circuit split on the resolution of the “inherent

tension in a statutory scheme that explicitly defines who is eligible to apply [for adjustment of

status] but gives [the Attorney General] unreviewable discretion to review the applications.”

Akhtar, 450 F.3d at 591-92. The regulations’ challengers argued that because § 1255(a) provides

to arriving aliens the ability to file for adjustment of status without mention of removal

proceedings, it was beyond the discretion afforded to the Attorney General by that statute to

withhold from a possibly large subsection of those aliens6 the ability to file for adjustment of

status. See, e.g., Succar, 394 F.3d at 21.

6
In Akhtar, 450 F.3d at 595 n.35, the Fifth Circuit noted “the disagreement over what
percentage of paroled aliens are in removal proceedings” comparing statements by the First
Circuit in Succar, 394 F.3d at 18, and the Third Circuit in Zheng v. Gonzales, 422 F.3d 98, 118
(3d Cir. 2005), that most arriving aliens are placed in removal proceedings, with an estimate by
the Attorney General in the Eighth Circuit case Mouelle v. Gonzales, 416 F.3d 923, 930 n.9 (8th
Cir. 2005), of only two to three percent.

9
 The Eleventh, Ninth, Third and First Circuits all concluded, after applying to the

regulations the two-step analysis articulated by the Supreme Court in Chevron, USA, Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), that because the regulations effected a

categorical exclusion from adjustment of status eligibility a category of aliens explicitly made

eligible to apply by § 1255(a), it was not within the discretion afforded the Attorney General by

the statute to promulgate those regulations. See Scheerer v. U.S. Attorney Gen., 445 F.3d 1311,

1322 (11th Cir. 2006); Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir. 2005); Zheng v.

Gonzales, 422 F.3d 98, 119-20 (3d Cir. 2005); Succar, 394 F.3d at 24.

In contrast, the Fifth and Eighth Circuits upheld the regulations as having constituted a

reasonable exercise of the Attorney General’s discretion. Those Circuits reasoned that because

§ 1255(a) gave the Attorney General unreviewable discretion to adjudicate the applications of all

aliens eligible to apply for adjustment of status, thereby authorizing the Attorney General to deny

on a case-by-case basis every application filed by arriving aliens in removal proceedings, there is

no reason the Attorney General could not effectuate the same result by rule. See Akhtar, 450

F.3d at 594; Mouelle v. Gonzales, 416 F.3d 923, 929 (8th Cir. 2005), vacated and remanded,126

S. Ct. 2964 (2006) (remanding with instruction to reconsider in light of amendment to the

regulations at issue).

Recognizing the Circuit split over the issue, and in the interest of avoiding “inconsistent

application of the adjustment of status laws” that would result from continued litigation over

their validity, the Attorney General decided to “resolve the conflict through rulemaking” and

amended the disputed regulations. Eligibility of Arriving Aliens in Removal Proceedings to

Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of

10
Status, 71 Fed. Reg. 27585, 27587 (May 12, 2006). The regulations as amended provide USCIS

with jurisdiction to adjudicate adjustment of status applications for all arriving aliens, even those

in removal proceedings. Id.; 8 C.F.R. § 245.2(a)(1); 8 C.F.R. § 1245.2(a). Although IJs, even

after those amendments, remain without jurisdiction to adjudicate adjustment of status

applications for arriving aliens in removal proceedings, 8 C.F.R. § 1245.2(a)(ii), the Attorney

General retained the narrow exception that existed prior to those amendments that provides IJs

with jurisdiction to adjudicate renewed adjustment of status applications filed by advance

parolees prior to their departure from the United States. 71 Fed. Reg. at 27587-88. That

exception, currently codified at 8 C.F.R. § 1245.2(a)(1)(ii), sets forth the following requirements:

(ii) Arriving Aliens. In the case of an arriving alien who is placed in
removal proceedings, the immigration judge does not have
jurisdiction to adjudicate any application for adjustment of status filed
by the arriving alien unless:

(A) The alien properly filed the application for adjustment of status
with USCIS while the arriving alien was in the United States;

(B) The alien departed from and returned to the United States
pursuant to the terms of a grant of advance parole to pursue the
previously filed application for adjustment of status;

(C) The application for adjustment of status was denied by USCIS;
and

(D) [Department of Homeland Security (“DHS”)] placed the arriving
alien in removal proceedings either upon the arriving alien's return to
the United States pursuant to the grant of advance parole or after
USCIS denied the application.

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 ii. The IJ Lacks Jurisdiction to Adjudicate Brito’s Application for Adjustment of

Status

Brito argues on appeal that the IJ has jurisdiction to adjudicate his application for

adjustment of status because he satisfies all the requirements set out in 8 C.F.R.

§ 1245.2(a)(1)(ii). We agree with Brito that he applied for adjustment of status, was granted

advance parole on the basis of that pending application, and had his application denied after his

return to the United States. The only remaining question is whether Brito now seeks to

adjudicate a previously filed application for adjustment of status (i.e., an application filed by

Brito prior to his departure from the United States, in renewed form), or whether he seeks to

adjudicate a new application for adjustment of status. See Zheng, 422 F.3d at 119 (explaining

that the jurisdictional exception under 8 C.F.R. § 1245.2(a)(1)(ii) is “very narrow,” as it allows

the IJ jurisdiction over renewed applications for adjustment of status but “makes no provision for

aliens making a first-time application while in removal proceedings”).

Despite Brito’s admission in his brief that the I-485 application for adjustment of status

he now seeks to adjudicate “was a different application than the one for which he received the

advance parole,” Petitioner’s Brief at 10, Brito asserted at oral argument, without explanation or

citation to authority, that his current I-485 application should be considered a renewed version of

his previously filed application. We disagree.

In Matter of Lasike, 17 I. & N. Dec. 445, 445 (B.I.A. 1980), the BIA explained that an

application for adjustment of status characterized as renewed will nonetheless be treated as new

if: (1) the alien was statutorily ineligible for adjustment of status based on the circumstances as

they existed when the application was originally denied by the agency; and (2) the present

12
application is based on circumstances which have occurred since that denial. Likewise, Matter of

Jo, 15 I. & N. Dec. 401 (B.I.A. 1975), involved an alien who sought adjustment of status as a

non-preference immigrant and who claimed to be exempt from obtaining a labor certification

under an exception for investors. The BIA held that the alien had filed a new, rather than

renewed, application for adjustment of status because his application was based on an investment

in a company entirely different and separate from the company in which he had previously

invested, and it was that first investment upon which his previously filed and denied application

for adjustment of status was based. See id. In Ka Fung Chan v. INS, 634 F.2d 248, 253-54 (5th

Cir. 1981), the Fifth Circuit reaffirmed that principle in another investor-exception case holding

that an application for adjustment of status was a new application where the alien had filed a

previous application for adjustment of status based on an entirely separate investment made six

months earlier. The Court stated,

once an application for adjustment of status based on an original
investment has been denied by the district director, and the
correctness of the district director’s determination with respect to the
original investment is not disputed by the alien at deportation
proceedings, a subsequent application based on an entirely new
investment will be treated as a new rather than a renewed application
....

Id. at 256.7

7
We note that Ka Fung Chan and Matter of Jo dealt with the definition of a renewed
application for adjustment of status in the context of ascertaining the operative date by which an
alien’s visa eligibility is determined. In other words, if the alien’s second application for
adjustment were considered new, the operative date for determining visa eligibility would be the
date upon which he or she filed that application, while, if considered renewed, the operative date
would be the date upon which his or her original application was filed. Notwithstanding that
context, we nonetheless find instructive the BIA’s definition of “renewed” as explained in those
cases.

13
 In this case, at the time Brito’s first I-485 application was denied, the I-130 application

filed on his behalf by his first wife had also been denied, thus rendering him statutorily ineligible

for adjustment of status. Brito never challenged that denial. His current application for

adjustment of status is separate and distinct from his previous application as it is based on a

different marriage to a different person. See Ka Fung Chan, 634 F.2d at 256; Matter of Jo, 15 I.

& N. Dec. at 401. We hold, therefore, that the BIA correctly concluded that Brito’s current

application for adjustment of status is a new application and, therefore, an application that the IJ

lacks jurisdiction to adjudicate.8 See 8 C.F.R. § 1245.2(a)(1)(ii); Zheng, 422 F.3d at 119.

iii. Brito Lacks Standing to Assert his Ultra Vires Argument

In addition to his argument that the IJ has jurisdiction to adjudicate his application for

adjustment of status under 8 C.F.R. § 1245.2(a)(1)(ii), Brito argues, in the alternative, that the

regulations precluding IJs from considering such applications are invalid because they prevent

nearly all aliens from filing their adjustment of status applications with an IJ. Specifically, Brito

argues that by preventing an alien from filing an adjustment of status application with an IJ, the

regulations preclude that alien from petitioning the IJ to stay the execution of an order of removal

while an application for adjustment is being adjudicated. Thus, an alien in that position is

deprived of any “recourse should the Attorney General or the Department of Homeland Security

decide to execute the order of removal.” Petitioner’s Brief at 15-16.

We cannot reach the merits of Brito’s ultra vires argument, however, unless and until we

satisfy ourselves that Brito has standing to assert it. A “‘concrete and particularized . . . actual or

8
We note that Brito has filed an application for adjustment of status before USCIS and
awaits its review. We commend the efforts made by the Office of Immigration Litigation to
ensure that Brito receives the review of that application to which he is statutorily entitled.

14
imminent’” injury that is neither “‘conjectural’” nor “‘hypothetical’” is one of three elements that

comprise the “‘irreducible constitutional minimum of standing.’” See Port Washington

Teachers’ Ass’n v. Board of Educ. of Port Washington Union Free Sch. Dist. 478 F.3d 494, 498

(2d Cir. 2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

Brito admits that “having filed a petition for review with this Court[,] . . . should the

government take steps to execute the order of removal against him, [he] may move this Court to

stay his removal.” Petitioner’s Brief at 17. Thus, even if the regulations Brito attacks might

allow for overreaching by the Attorney General, he has not yet been, nor is he likely to be,

injured as a result of it. At best, Brito speculates there could be hypothetical overreaching by the

Attorney General that may injure unnamed third parties. He speculates further that DHS would,

without regard to the alien’s request to the contrary or the merit of his or her application for

adjustment of status, execute a final order of removal before USCIS has a chance to adjudicate a

pending application. Because Brito alleges only a potential for the agency’s overreaching that

has not yet occurred and because that potential is born of nothing more than hypothesis and

conjecture, Brito lacks standing to assert his ultra vires argument. See Port Washington

Teachers’ Ass’n, 478 F.3d at 498.

III. Conclusion

For these reasons we deny the petition for review.

15