Mohammad Qatanani v. Attorney General United States of America

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 24-1849

____________

MOHAMMAD M. QATANANI,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF

AMERICA

____________

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

(Agency No. A076-133-969)

Immigration Judge: Alberto J. Riefkohl

____________

Argued on May 13, 2025

Before: KRAUSE, MATEY, and FREEMAN, Circuit Judges

(Opinion filed: July 15, 2025)

Cyrus D. Mehta

David A. Isaacson [Argued]

Cyrus D. Mehta & Partners

One Battery Park Plaza, 9th Floor

New York, NY 10004

Claudia Slovinsky

233 Broadway Suite 2020

New York, NY 10279

Counsel for Petitioner

Merrick B. Garland

Gregory M. Kelch

Lindsay M. Murphy [Argued]

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

_______________

OPINION OF THE COURT

_______________

FREEMAN, Circuit Judge.

The Supreme Court has long recognized that the

admission and exclusion of noncitizens is a “fundamental

sovereign attribute exercised by the Government’s political

2

departments largely immune from judicial control.” Fiallo v.

Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei,

345 U.S. 206, 210 (1953)). But in that endeavor, both political

branches have particular roles to play. On the one hand, the

Executive has authority to enforce the immigration laws passed

by Congress and to exercise the discretion Congress delegates

to it. INS v. Chadha, 462 U.S. 919, 953 n.16 (1983). On the

other hand, “the formulation of [immigration] policies is

entrusted exclusively to Congress.” Galvan v. Press, 347 U.S.

522, 531 (1954); see also Osorio-Martinez v. Att’y Gen., 893

F.3d 153, 176 (3d Cir. 2018). Indeed, there is “no conceivable

subject” over which the “legislative power of Congress [is]

more complete” than the admission and exclusion of

noncitizens. Fiallo, 430 U.S. at 792 (quoting Oceanic

Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). In

this balance, it is the Judiciary’s exclusive province to resolve

separation-of-powers questions. See Freytag v. Comm’r, 501

U.S. 868, 878–80 (1991); Mistretta v. United States, 488 U.S.

361, 380–82 (1989). So where an administrative agency

purports by regulation to evade procedures mandated by

Congress in the Immigration and Nationality Act (“INA”), it is

incumbent upon us to intervene. We do so here.

In 1996, Mohammad M. Qatanani was admitted to the

United States on a work visa. In 1999, he applied under

8 U.S.C. § 1255(a) to adjust his immigration status to that of a

Lawful Permanent Resident (“LPR”). After lengthy

proceedings regarding Qatanani’s application, an Immigration

Judge (“IJ”) twice made fact findings and credibility

determinations in Qatanani’s favor and granted his application

to adjust to LPR status. The IJ issued those orders in 2008 and

2020, respectively.

3

The IJ’s 2008 order never became final; the Department

of Homeland Security (“DHS”) appealed the order within the

30-day period permitted for it to do so. On appeal, the Board

of Immigration Appeals (“BIA”) vacated the IJ’s order and

remanded the matter to the IJ for further proceedings. Those

proceedings led to the IJ’s April 2020 order that again granted

Qatanani’s application to adjust to LPR status.

DHS did not appeal the IJ’s April 2020 order within 30

days, so that order became final. As part of Congress’s regime

for adjustment to and recission of LPR status, the Attorney

General was then required to memorialize that final order by

recording Qatanani’s admission with LPR status as of the date

of the IJ’s April 2020 order. 8 U.S.C. § 1255(b). And

Congress specified how the Attorney General could rescind

that LPR status if warranted: Within five years of the

adjustment date, the Attorney General could commence

proceedings pursuant to § 1256(a).

But here, the Attorney General evaded that statutory

path. Instead, the BIA invoked an agency regulation to “self-

certify” an appeal of the IJ’s April 2020 order eleven months

after that order issued. And at the conclusion of those self-

certified appeal proceedings, the BIA issued an order

purporting to reverse the IJ’s April 2020 order and to order

Qatanani removed from the United States. Qatanani petitioned

us for review of the BIA’s decision.

The BIA exceeded its authority when it attempted to

undo Qatanani’s adjustment to LPR status by using an agency

regulation in a manner inconsistent with the procedures set out

4

by Congress in the INA. Accordingly, we granted Qatanani’s

petition for review and vacated the BIA’s order.1

I.

Qatanani is Palestinian and a citizen of Jordan. He was

born in the West Bank and lived there until he finished high

school. In 1982, he began studying at the University of Jordan,

where he earned his bachelor’s and master’s degrees and a

Ph.D. In 1989, he began working as an Imam in Jordan.

In 1993, Qatanani traveled to the West Bank with his

wife and children to renew his residency card. While there, he

was detained, beaten, and interrogated by the Israeli military.

Upon his release, Israeli authorities renewed Qatanani’s

residency card.

In 1996, Qatanani was admitted to the United States,

along with his wife and then four children, on a non-immigrant

H1-B visa to serve as an Imam at the Islamic Center of Passaic

County (“Islamic Center”) in Paterson, New Jersey. In 1998,

the Immigration and Naturalization Service determined that

Qatanani was eligible to receive an immigrant visa. See

8 U.S.C. § 1101(a)(27)(C). On April 1, 1999, when his H1-B

visa was set to expire, Qatanani applied to adjust his status to

LPR. On his application form (“I-485 application”), Qatanani

checked a box stating that he had not been arrested or

1

On May 19, 2025, we issued a Judgment granting Qatanani’s

petition for review and vacating the BIA’s decision and its

order of removal. We noted that a full opinion would follow.

We now issue that opinion.

5

imprisoned for violating a law or ordinance within or outside

the United States.

In 2005, while his I-485 application was still pending,

Qatanani requested a meeting with the Federal Bureau of

Investigation (“FBI”) and Immigration and Customs

Enforcement (“ICE”) to inquire about the reason for the delay.

In February 2005, an FBI agent and an ICE agent conducted a

voluntary interview in which Qatanani disclosed that the Israeli

military detained him in the West Bank in 1993. The agents

informed United States Citizenship and Immigration Services

(“USCIS”) that Qatanani had been arrested and possibly

convicted in the West Bank, and officials reached out to Israeli

authorities to obtain records.

In May 2006, USCIS interviewed Qatanani regarding

his I-485 application. The USCIS officer presented a

declaration executed in January 2006 by the FBI agent who

conducted the February 2005 interview. Qatanani and his

counsel, who were seeing the declaration for the first time,

objected that its contents were inaccurate and that they needed

more time to review the document. The interview was

terminated soon thereafter, and there was no subsequent

USCIS interview.

In July 2006, USCIS denied Qatanani’s I-485

application. It stated that Qatanani was inadmissible because

he made a material misrepresentation in his application. See

8 U.S.C. § 1182(a)(6)(C)(i). Relying on the FBI agent’s

declaration, USCIS found that, in the February 2005 interview,

Qatanani admitted that he was arrested, pleaded guilty to a

crime, and was imprisoned for three months by Israeli

authorities in the West Bank in 1993. Accordingly, USCIS

6

found that Qatanani made a material misrepresentation when

he stated on an immigration form that he had never been

arrested, charged, or imprisoned for violating any law or

ordinance. USCIS also denied Qatanani’s application in the

exercise of discretion.

That same day, ICE placed Qatanani in removal

proceedings. Qatanani appeared before the Newark

Immigration Court and conceded his removability. As relief

from removal, he renewed his request for adjustment of status

before the Immigration Court.

After receiving voluminous documents in evidence and

holding a hearing over four days, the IJ granted Qatanani’s

application for adjustment of status. In a lengthy opinion

issued in 2008, the IJ found that Qatanani was admissible and

that he merited adjustment of status as a matter of discretion.

The IJ rejected the two grounds upon which DHS

claimed that Qatanani was inadmissible. The first ground was

alleged engagement in terrorist activity. See 8 U.S.C.

§ 1182(a)(3)(B)(i)(I). Specifically, DHS claimed that

Qatanani provided material support to Hamas. DHS based this

claim in large part on documents it obtained from the Israeli

military. Those documents state that, in 1993, a military court

convicted Qatanani of two charges: (1) membership in an

unlawful association (specifically, Hamas) and (2) performing

a service for an unlawful association.

The IJ conducted a detailed discussion of the evidence.

Among other concerns, the IJ stated that the documents from

the Israeli military were premised on a written confession that

was absent from the record. The IJ found that the military court

7

was internationally stigmatized for failing to meet fair-trial

standards, and even the Israeli Supreme Court had condemned

it for abusive treatment to coerce confessions from detainees

during the time of Qatanani’s detention. The IJ also found it

“perplex[ing]” and “remarkable” that the Israeli military would

convict Qatanani (who refused to cooperate or become a spy

for Israel) of being a member of Hamas and then release him

after three months and renew his West Bank residency permit.

App. A160. Because the military court documents were

“highly questionable, fail to clarify the identity of the

respondent[,] and border on being, flatly stated, unreliable,”

the IJ gave the documents “very low evidentiary weight.” App.

150. He found they did not prove Qatanani engaged in terrorist

activity.

In addition to the military court documents, two DHS

witnesses—the FBI agent and the ICE agent who interviewed

Qatanani in 2005—testified that Qatanani admitted during the

interview that he was arrested for being a member of Hamas.

In Qatanani’s own testimony, he maintained that he had not

done so. The IJ found Qatanani credible. But the IJ recounted

numerous examples of the FBI agent’s evasive, unresponsive,

implausible, and contradictory answers that caused the IJ to

disregard the FBI agent’s testimony as unreliable. The IJ also

explained that the ICE agent contradicted herself in her

testimony, which was further undermined by DHS’s failure to

present the documents the ICE agent reviewed to prepare for

her testimony. As a result, the IJ did not credit either agent,

leaving Qatanani as the “only one of the three that has been

consistent” about whether he was detained in 1993 or whether

he was arrested and convicted. App. A172.

8

The other grounds DHS raised to support its allegation

that Qatanani engaged in terrorist activity were Qatanani’s

possible associations with members of Hamas and his one-time

transfer of money to the West Bank. But, upon review of the

evidence, the IJ found none of Qatanani’s associations were

improper, and DHS presented no evidence that the money

Qatanani transferred to the West Bank came from an illegal

source or was used for an illegal purpose. So the IJ found that

Qatanani was not inadmissible for having engaged in terrorist

activity.

The IJ then turned to DHS’s second allegation of

inadmissibility: the alleged willful misrepresentation of a

material fact in Qatanani’s application for adjustment of status.

8 U.S.C. § 1182(a)(6)(C)(i). The IJ found that Qatanani made

no willful misrepresentation. Again crediting Qatanani’s

testimony, the IJ found that Qatanani “answered truthfully in

his I-485 application for adjustment of status when he marked

the box indicating that he was never arrested or convicted in

any country.” App. A188.

The IJ analyzed the distinction between arrest and

administrative detention under the Israeli military court

regulations in effect in the West Bank in 1993. Arrest required

reasonable suspicion of an offense, while administrative

detention required neither reasonable suspicion nor a criminal

charge. The IJ credited the testimony of the experts presented

by Qatanani and DHS, all of whom testified that thousands of

Palestinian men were subject to administrative detention in the

Israeli-occupied territories in 1993. Considering these facts,

and Qatanani’s credible testimony, the IJ found that Qatanani

reasonably believed he was administratively detained without

arrest in the West Bank in 1993. The IJ also found that

9

Qatanani was released without explanation and only learned

during the USCIS interview that he allegedly had been

convicted of a crime in 1993.

Although the IJ “d[id] not find that Mr. Qatanani

willfully misrepresented a fact material [sic] in his application

for adjustment of status,” the IJ noted that “[i]t was unwise for

Mr. Qatanani to not be candid on his application about his

detention in the West Bank in 1993.” App. A192. The IJ

posited that, if Qatanani had explained the circumstances when

he applied for adjustment of status, he might have avoided the

lengthy proceedings about his admissibility. Nonetheless,

because Qatanani voluntarily disclosed his detention to the FBI

during the February 2005 interview, the IJ found that

Qatanani’s conduct did not cut off a line of inquiry relevant to

the application for adjustment of status.

Having found Qatanani eligible for admission, the IJ

addressed whether Qatanani merited adjustment to LPR status

as a matter of discretion. The IJ weighed several factors in

Qatanani’s favor, including the “outstanding” character

witnesses who took time out of their schedules to testify at the

hearing. App. A190. Those witnesses included three law

enforcement officers—two county sheriffs and an Assistant

United States Attorney who was the then-Chief of the Criminal

Division in the United States Attorney’s Office for the District

of New Jersey—who testified to the assistance Qatanani

provided to federal and local law enforcement during his tenure

at the Islamic Center. Additionally, three respected members

of Jewish and Christian religious organizations each “attested

to [Qatanani’s] character and dedication to an all[-]inclusive

movement and message of tolerance and unity among all

denominations.” Id. The IJ also weighed positively that

10

Qatanani’s family—his wife and six children, three of whom

were United States citizens—had lived in the country as law-

abiding members of the community for over 12 years. The

only negative factor was a criminal charge (which had since

been dismissed) Qatanani sustained for producing an invalid

international driver’s license to a police officer during a traffic

stop in 2005. Because that negative factor did not outweigh all

the positive factors, the IJ granted Qatanani’s application and

adjusted his status to LPR.

DHS timely appealed to the BIA. In a 2009 opinion, the

BIA remanded the matter to the IJ for additional evidentiary

proceedings. The BIA determined that the IJ improperly

discredited the FBI and ICE agents, but it did not disturb the

IJ’s determination that Qatanani testified credibly.

Additionally, the BIA instructed the IJ to further evaluate the

documents DHS obtained from the Israeli military because,

“[a]lthough the documents may have deficiencies, [they]

appear to relate to the lead respondent” and “reasonably

indicate the existence of a criminal conviction.” App. A121–

22.

Upon remand, the parties submitted additional evidence

and argument, and the IJ heard testimony over three dates in

2016 and 2017. (During those proceedings, DHS specifically

refused to present the FBI and ICE agents to be rehabilitated.)

In April 2020, the IJ again granted Qatanani’s application for

an adjustment to LPR status. In his decision, the IJ found that

Qatanani had established his admissibility and merited relief as

a matter of discretion.

Contrary to DHS’s charge that Qatanani had engaged in

terrorist activity, the IJ found that Qatanani is not and has never

11

been a member of Hamas. Upon remand from the BIA, DHS

supported this charge by relying only on the Israeli military

documents showing Qatanani’s alleged conviction by the

Israeli military. The IJ found those documents not credible

because they were obtained by a fundamentally unfair process.

The IJ assumed without deciding that Qatanani signed a written

confession to being a member of Hamas,2 and the IJ found that

Qatanani only signed the confession because the Israeli

military used torturous interrogation tactics to coerce him into

doing so. The IJ also found that if Qatanani signed a written

confession at all, Qatanani did not understand what he was

signing. So the only basis for the alleged conviction was a

coerced and unknowing confession.3 Thus, the IJ found that

Qatanani proved by clear and convincing evidence that he was

not inadmissible for engaging in terrorist activity.

The IJ also found that Qatanani proved he was not

inadmissible for making a material misrepresentation in his I-

485 application. The IJ explained (per the BIA’s instruction)

that Qatanani’s failure to disclose his administrative detention

in the West Bank tended to shut off a line of inquiry relevant

to his eligibility for adjustment; thus, the omission was a

material misrepresentation. But under BIA precedent, the

burden then shifted to Qatanani to prove that he would have

2

The IJ noted Qatanani’s testimony that one of the signatures

on the written confession looked like his own and the other

looked like an attempt to copy his signature.

3

The IJ also noted that DHS never produced original records

of the alleged conviction and relied instead on “a series of

alleged certifications” by Israeli authorities that the IJ found

was “tantamount to hearsay over hearsay.” App. A63 n.5.

12

been admissible had the facts been disclosed. And the IJ found

that Qatanani met his burden by presenting “overwhelming

evidence, both in the record and through witness testimony,

that [he] was tortured into making a confession of guilt,” so

Qatanani would have been admissible if he had disclosed his

detention. App. A65.

Turning to the exercise of discretion, the IJ recounted a

list of positive factors, including Qatanani’s good moral

character, substantial period of residence in the United States,

significant community ties, consistent payment of his taxes,

and contributions to religious and academic institutions. The

IJ then turned to a topic DHS raised during the post-remand

proceedings: a speech Qatanani gave during a rally in Times

Square in December 2017.

In his brief speech, Qatanani stated his opposition to

President Trump’s decision to recognize Jerusalem as the

capital of Israel. DHS argued that the speech was an adverse

factor because a certain phrase Qatanani used during that

speech—a call for “a new intifada”—equated to a call for

violence. (DHS presented the IJ with a videorecording and a

transcript of the speech.) For his part, Qatanani maintained that

he was not advocating violence, and that he only promotes

peaceful methods of political opposition.

After reviewing the contents of the speech and related

materials from the parties, the IJ found that Qatanani was

expressing his opinion about the President’s decision by means

13

of a peaceful demonstration.4 Accordingly, the IJ did not

consider the speech to be an adverse factor.

In an order dated April 27, 2020, the IJ granted

Qatanani’s application for adjustment to LPR status.

According to the Immigration Court’s certificate of service, the

IJ’s order was served on DHS by the Executive Office for

Immigration Review via mail and personal service on the day

the order was issued.

4

Qatanani opened his speech by addressing “every good man

and woman in the world who loves justice, who loves peace.”

A.R. 1410. Midway through the speech, he said:

Brothers and sisters. Palestine is the heart of all

Muslims. The heart of all Arabs. The heart of

all the people in the world! It is for every good

man and woman in the world who loves justice,

[cough] who loves peace. Our message to

Palestinian Authority: you have to stop all kinds

of peace process! No peace process and

negotiation without liberation in Palestine. Also

has to be stopped and to be finished. We have to

start a new intifada. [Uprising] Intifada,

intifada!

Id. (bracketed text in original). He and the crowd then

exchanged several chants of “Intifada, intifada!” before

Qatanani concluded the speech by saying, “Brothers, this is the

answer to Mr. Trump. We will continue, we will continue

coming to Times Square until Jerusalem will be free. Until

every place in the world to be free. Thank you very much.”

Id.

14

Thus, pursuant to 8 C.F.R. § 1003.38(b), DHS had 30

days to file its notice of appeal with the BIA. But it did not do

so. Instead, more than three months later, it filed a motion

asking the BIA to hear a late appeal of the IJ’s order. DHS

filed its motion on August 12, 2020, and invoked a regulation

that, according to DHS, permits the BIA to hear an appeal “by

certification” in any case over which it has appellate

jurisdiction. 8 C.F.R. § 1003.1(c) (2020). The regulation

provides no time limit on the BIA’s authority to self-certify a

late appeal. DHS asserted that certification was warranted

because it first learned of the IJ’s April 27 order on July 14—

one day after its physical office in Newark reopened following

a COVID-19 closure. Over Qatanani’s opposition, the BIA

self-certified the appeal on March 10, 2021.5

5

After DHS filed its motion, a new regulation temporarily

removed the BIA’s ability to self-certify appeals to itself under

8 C.F.R. § 1003.1(c). See Appellate Procedure and Decisional

Finality in Immigration Proceedings; Administrative Closure,

85 Fed. Reg. 81588 (Dec. 16, 2020). The new regulation took

effect on January 15, 2021, but a district court enjoined it on

March 10, 2021—the same day the BIA self-certified an appeal

in Qatanani’s case. Centro Legal de la Raza v. Exec. Off. for

Immigr. Rev., 524 F. Supp. 3d 919, 980 (N.D. Cal. Mar. 10,

2021).

Another regulation restored the BIA’s self-certification

authority, effective on July 29, 2024. See Efficient Case and

Docket Management in Immigration Proceedings, 89 Fed.

Reg. 46742 (May 29, 2024). By that time, the BIA had issued

its opinion in Qatanani’s case.

15

On April 5, 2024, the BIA issued an order that purported

to (1) reverse the IJ’s decision granting Qatanani’s application

for adjustment to LPR status and (2) order Qatanani removed

to Jordan. In its opinion, the BIA declined to address

Qatanani’s admissibility. Instead, it overturned the IJ’s

exercise of discretion, finding that four adverse factors

outweighed the positive factors. The adverse factors it relied

upon were (1) Qatanani’s “lack of candor in his application for

adjustment of status . . . regarding his detention in the West

Bank in 1993,” App. A6; (2) that he had “associated with

individuals who support[ed] Hamas,” App. A7; (3) his Times

Square speech, which the BIA characterized as “advocat[ing]

for a violent, armed uprising against another sovereign nation,”

App. A8; and (4) his insufficient response to DHS’s argument

on appeal that he did not prove he filed tax returns for the years

2011 through 2016, App. A9.

This timely petition for review followed.

II.6

Qatanani brings an as-applied challenge to the BIA’s

authority to self-certify an appeal of the IJ’s April 2020 order

granting his application for adjustment to LPR status. In doing

6

We have jurisdiction to review a final order of removal, 8

U.S.C. § 1252(a)(1) and (5), and to determine whether a

petitioner has LPR status, see Sharkey v. Quarantillo, 541 F.3d

75, 91–92 (2d Cir. 2008). When an agency has acted, we have

jurisdiction to determine whether it exceeded its statutory

powers. Chehazeh v. Att’y Gen., 666 F.3d 118, 129 (3d Cir.

2012). We review the BIA’s legal conclusions de novo.

Pesikan v. Att’y Gen., 83 F.4th 222, 227 n.7 (3d Cir. 2023).

16

so, he contends that the BIA used a regulation, 8 C.F.R.

§ 1003.1(c), to circumvent Congress’s process for rescinding a

grant of LPR status and the procedural protections afforded by

that process. He is correct that the BIA exceeded its authority

in this case. The IJ issued his April 2020 order pursuant to 8

U.S.C. § 1255(a). When DHS did not appeal that order within

30 days, the order became final, with an effective date of April

27, 2020. See 8 U.S.C. § 1255(b). And once that appeal period

passed and Qatanani obtained LPR status, if the government

wished to revoke that status, it was required to adhere to the

recission process Congress provided in 8 U.S.C. § 1256(a).

The BIA lacked authority to usurp that process by self-

certifying an appeal of the IJ’s April 2020 order adjusting

Qatanani’s status.

A.

We begin with first principles. “Policies pertaining to

the entry of [noncitizens] and their right to remain here are

peculiarly concerned with the political conduct of

government.” Galvan, 347 U.S. at 531; Fiallo, 430 U.S. at 792

(recognizing that “the power to expel or exclude [noncitizens]

[i]s a fundamental sovereign attribute exercised by the

Government’s political departments” (quoting Shaughnessy,

345 U.S. at 210)). But our Nation does not vest that power in

only one of our political branches. Instead, it is “the

responsibility of the Executive Branch faithfully to execute the

immigration policy adopted by Congress.” United States v.

Valenzuela-Bernal, 458 U.S. 858, 872 (1982). And “the

creation of statutory rights associated with a given immigration

status falls exclusively within the purview of Congress.”

Osorio-Martinez, 893 F.3d at 172.

17

The question here is one that is peculiarly in the

province of the Judiciary: “whether . . . the Executive is

‘aggrandizing its power at the expense of another branch.’”

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 197

(2012) (quoting Freytag, 501 U.S. at 878); see also Mistretta,

488 U.S. at 380. The answer to that question depends on what

authority Congress delegated to the Executive. See Chadha,

462 U.S. at 953 n.16 (“Executive action under legislatively

delegated authority . . . is always subject to check by the terms

of the legislation that authorized it; and if that authority is

exceeded it is open to judicial review . . . .”).

In the INA, Congress set out a comprehensive

framework for the adjustment to and recission of LPR status.

See, e.g., 8 U.S.C. §§ 1255–56. Within the parameters of the

INA, it granted the Attorney General the authority to adjust a

noncitizen’s status to that of an LPR “in his discretion and

under such regulations as he may prescribe.” 8 U.S.C.

§ 1255(a); see also Pinho v. Gonzales, 432 F.3d 193, 203 (3d

Cir. 2005). The INA specifies which groups of noncitizens are

eligible for adjustment to LPR status, 8 U.S.C. § 1255(a)

(limiting eligibility to noncitizens lawfully admitted or paroled

to the United States or noncitizens who have been approved for

a classification under the Violence Against Women Act), and

it lists certain prerequisites for that adjustment, id. (requiring

that an immigration visa be available, that the noncitizen apply

for adjustment, and that the noncitizen be eligible for an

immigrant visa and admissible to the United States).

As relevant here, the Attorney General has delegated to

the presiding immigration judge the “exclusive jurisdiction to

adjudicate any application for adjustment of status” filed by

“any alien who has been placed in deportation proceedings or

18

in removal proceedings.” 8 C.F.R. § 1245.2(a)(1)(i). Once

that immigration judge issues a decision in the removal

proceeding, a party has 30 days to appeal that decision to the

BIA. 8 C.F.R. § 1003.38(b). “Except when certified to the

Board, the decision of the Immigration Judge becomes final

upon waiver of appeal or upon expiration of the time to appeal

if no appeal is taken whichever occurs first.” 8 C.F.R.

§ 1003.39 (2020).

When the IJ’s grant of status adjustment becomes final,

the Attorney General’s discretion gives way to the INA’s

mandate that “the Attorney General shall record the alien’s

lawful admission for permanent residence as of the date the

order of the Attorney General approving the application for the

adjustment of status is made.” 8 U.S.C. § 1255(b) (emphasis

added) (also providing that “the Secretary of State shall reduce

by one the number of the preference visas authorized to be

issued”); see Bouarfa v. Mayorkas, 604 U.S. 6, 9–10 (2024)

(observing, in the context of 8 U.S.C. § 1154(b), that language

providing the agency “shall . . . approve the [spousal visa]

petition” if certain criteria were met was a “mandatory

determination[]” by Congress). This language stands in sharp

contrast to other provisions of the INA in which Congress

specifically gave the Attorney General discretion about

whether to record adjustment to LPR status. See 8 U.S.C.

§ 1255b(b) (“[T]he Attorney General, in his discretion, may

record the alien’s lawful admission for permanent residence as

of the date the order of the Attorney General approving the

application for adjustment of status is made.” (emphasis

added)); 8 U.S.C. § 1259 (“A record of lawful admission for

permanent residence may, in the discretion of the Attorney

General and under such regulations as he may prescribe, be

made in the case of any alien, as of the date of the approval of

19

his application or, if entry occurred prior to July 1, 1924, as of

the date of such entry . . . .” (emphasis added)).7 Plainly,

Congress knew how to afford the Executive discretion when it

intended to do so. And “our caselaw distinguishes between

actions which an agency official may freely decide to take or

not to take, and those which he is obligated by law to take or

not to take” with respect to adjustments of status. Pinho, 432

F.3d at 203.

Although the recordation of an admission with LPR

status is a ministerial task (one that helps track the number of

LPRs admitted in a given year), the admission itself is a

statutorily-defined event. Hanif v. Att’y Gen., 694 F.3d 479,

485 (3d Cir. 2012); 8 U.S.C. § 1101(a)(20). It is also an event

that has a significant legal effect. It provides a noncitizen “the

status of having been lawfully accorded the privilege of

residing permanently in the United States as an immigrant in

accordance with the immigration laws.” 8 U.S.C.

§ 1101(a)(20). And, as discussed below, that status comes with

a great measure of security. See Bamidele v. INS, 99 F.3d 557,

564–65 (3d Cir. 1996); Castro v. United States Dep’t of

Homeland Sec., 835 F.3d 422, 446 (3d Cir. 2016) (“[A] lawful

permanent resident[’s] . . . entitlement to broad constitutional

protections is undisputed.”). That security includes clarity as

to when the adjustment to LPR status becomes final, thereby

concluding the period of the Attorney General’s discretion.

Congress provided this clarity by mandating that the Attorney

General record an adjustment to LPR status made under

8 U.S.C. § 1255(a) as of the date of the approval order.

8 U.S.C. § 1255(b).

7

8 U.S.C. §§ 1255b(b) and 1259 apply to certain classes of

nonimmigrants, and these provisions are not at issue here.

20

Congress also provided clarity about when and why the

Attorney General may pursue recission of an adjustment to

LPR status. Even after the Attorney General no longer has

discretion over the adjustment itself, Congress has provided the

Attorney General a mechanism to rescind an adjustment to

LPR status in limited circumstances. The Attorney General

shall do so only when the person awarded adjustment to LPR

status was “not in fact eligible for such adjustment of status” at

the time of the adjustment. 8 U.S.C. § 1256(a).8 And even

8

8 U.S.C. § 1256(a) provides as follows:

If, at any time within five years after the status of

a person has been otherwise adjusted under the

provisions of section 1255 or 1259 of this title or

any other provision of law to that of an alien

lawfully admitted for permanent residence, it

shall appear to the satisfaction of the Attorney

General that the person was not in fact eligible

for such adjustment of status, the Attorney

General shall rescind the action taken granting an

adjustment of status to such person and

cancelling removal in the case of such person if

that occurred and the person shall thereupon be

subject to all provisions of this chapter to the

same extent as if the adjustment of status had not

been made. Nothing in this subsection shall

require the Attorney General to rescind

the alien’s status prior to commencement of

procedures to remove the alien under section

21

when the Attorney General is satisfied of that person’s

ineligibility, the Attorney General may only seek to rescind

LPR status “within five years after [the adjustment date].” Id.;

see also Bamidele, 99 F.3d at 564–65 (requiring strict

compliance with the five-year statutory limitation period for

initiating recission of LPR status, even when LPR status was

obtained by misconduct); Garcia v. Att’y Gen., 553 F.3d 724,

726–28 (3d Cir. 2009) (confirming that Bamidele retains its

precedential authority after the 1996 amendment to 8 U.S.C.

§ 1256(a)).

By providing the Attorney General with only a

circumscribed ability to rescind an adjustment to LPR status,

Congress recognized that an order approving an application for

adjustment to LPR status under § 1255(a) is an event of legal

significance. It results in “the alien’s lawful admission for

permanent residence” that goes into effect on a specific date:

“the date the order of the Attorney General approving the

application for the adjustment of status is made.” 8 U.S.C.

§ 1255(b). And once that lawful admission goes into effect,

the Attorney General’s discretion ceases. See id. (mandating

that the Attorney General record the adjustment to LPR status).

Applying this statutory and regulatory regime to this

case, the time to appeal the IJ’s April 2020 order adjusting

Qatanani’s status to LPR expired 30 days after the IJ issued

that order. 8 C.F.R. § 1003.38(b). And while that appeal

period might be flexible when it pertains to other decisions by

immigration judges, see 8 C.F.R. § 1003.1(b) (listing the

1229a of this title, and an order of removal issued

by an immigration judge shall be sufficient to

rescind the alien’s status.

22

decisions that are subject to the regulatory 30-day appeal

period), the decision at issue granted an adjustment to LPR

status. So it is governed by the provisions of the INA discussed

above. And when 30 days elapsed without any party initiating

an appeal, Qatanani’s admission with LPR status became final

by operation of law, effective as of April 27, 2020 (the date of

the immigration judge’s order). See 8 U.S.C. § 1255(b).

With this framework in mind, we turn to the task before

us: assessing whether a BIA regulation can circumvent the

statutory commands of Congress and the procedures therein.

B.

As a threshold matter, the government argues that we

cannot reach Qatanani’s challenge to the BIA’s authority. It

asserts that the challenge is barred because Qatanani failed to

exhaust his administrative remedies before the BIA. See

8 U.S.C. § 1252(d)(1).

The government is incorrect. Exhaustion is required

only when the BIA “was capable of granting the remedy sought

by the [noncitizen].” Barradas Jacome v. Att’y Gen., 39 F.4th

111, 120 (3d Cir. 2022) (citation omitted). Here, the BIA was

incapable of granting Qatanani relief from 8 C.F.R.

§ 1003.1(c). On its face, the regulation imposes no time limit

on the BIA’s authority to self-certify a late appeal. And “[t]he

[BIA] is bound to uphold agency regulations.” In Re Ponce De

Leon-Ruiz, 21 I. & N. Dec. 154, 158 (BIA 1996); see also

Matter of Anselmo, 20 I. & N. Dec. 25, 30 (BIA 1989) (“A

regulation promulgated by the Attorney General has the force

and effect of law as to this Board and immigration judges, and

23

neither has any authority to consider challenges to regulations

implemented by the Attorney General. . . .”).

For similar reasons, we also recognize that the

exhaustion of administrative remedies is not required where, as

here, “the petitioner advances a due process claim” and shows

he suffered prejudice from the “breach of the entitled

protections.”9 Hernandez Garmendia v. Att’y Gen., 28 F.4th

476, 485 (3d Cir. 2022) (quoting Khan v. Att’y Gen., 448 F.3d

226, 236 n.8 (3d Cir. 2006)). This exception does not reach

mere procedural errors that could have been corrected by the

BIA. But the Board’s lack of “jurisdiction to adjudicate

constitutional issues” rendered it incapable of addressing the

due process claim presented here. Khan, 448 F.3d at 236 n.8

(quoting Bonhometre v. Gonzales, 414 F.3d 442, 447 n.7 (3d

Cir. 2005)). Just as the BIA had no authority to set aside a

facially valid regulation for exceeding the statutory

authorization of Congress, it also lacked jurisdiction to

9

The dissent asserts that Qatanani “expressly declined to

develop any such [due process] argument in this appeal,” so it

dismisses our analysis as dicta. Dissent at 13 n.20. But

Qatanani argued that adherence to the “requisite recission

procedures” may “be constitutionally required” by the Due

Process Clause due to the “heightened procedural protections”

afforded when an LPR’s resident status is threatened. Opening

Br. at 21 (quoting Sharkey, 541 F.3d at 92–93). And, at oral

argument, his counsel argued that “due process goes to the

interpretation of the statute . . . . [W]e’re not saying the statute

doesn’t go far enough and so he needs more due process. We

are saying the statute is in part there to protect these due

process rights and that’s one of the reasons it has to be strictly

followed.” OA Tr. at 11:23–12:5.

24

adjudicate whether its use comports with the constitutional

minimums of due process. Barradas Jacome, 39 F.4th at 120

(requiring exhaustion only when “the . . . claim was within the

jurisdiction of the [agency] to consider”).

Qatanani had no obligation to present the BIA with a

challenge it had no authority to consider.

1.

Rather than acknowledging the LPR status Qatanani

attained 30 days after the IJ’s April 2020 order, the BIA sought

to undo the IJ’s order in March 2021 by way of self-

certification under 8 C.F.R. § 1003.1(c). In doing so, the BIA

disregarded the import of the Congressional directive in

8 U.S.C. 1255(b) and attempted to end-run the LPR-rescission

procedures Congress established in 8 U.S.C. § 1256(a). Its

actions were unlawful.

The government argues that the BIA’s behavior

comported with the INA because the IJ’s April 2020 order

never became final. It relies on a regulation that states: “Except

when certified to the Board, the decision of the Immigration

Judge becomes final upon waiver of appeal or upon expiration

of the time to appeal if no appeal is taken whichever occurs

first.” 8 C.F.R. § 1003.39 (emphasis added). According to the

government, the BIA can self-certify an appeal of an

immigration judge’s decision at any time—even decades after

the immigration judge makes his decision.

The implications of this argument are extraordinary.

Under this reading of agency authority, the government has

carte blanche to evade the limits Congress imposed on the

25

Executive’s discretionary authority over adjustments to LPR

status and to circumvent the procedures Congress mandated for

recission of such adjustments. According to this view, by

merely invoking two regulations (8 C.F.R. §§ 1003.39 and

1003.1(c)), the BIA could render a final adjudication to LPR

status non-final, without the procedural protections that

Congress provided. And it could do so at any time.

At oral argument, the government doubled down on that

position. It asserted that, “whether it’s lawful permanent

resident status, [or] whether it’s naturalization, the

Government does retain the power to go back and revoke that

status if certain conditions are met.” OA Tr. 52:5–8. And

although Congress has proscribed the time frame in which the

Attorney General may rescind LPR status, the government

submitted that “there [is] no requirement” to follow Congress’s

statutory command because an agency “regulation permits . . .

the B[IA] with an unlimited time to go back and certify a

decision that has come before it.” OA Tr. 52:13–15.

When asked why “there would ever be a need to invoke

[§] 1256(a) if the B[IA] has the unlimited discretion decades

after an Immigration Judge’s [o]rder to . . . revisit the decision

that was made to adjust status,” the government acknowledged

that its position creates “an inherent tension between the

regulation and the recission statute.” OA Tr. 52:18–24. But

this is no mere “tension.” The government’s position is

antithetical to “the basic concept of separation of powers . . .

that flow[s] from the scheme of a tripartite government.” Stern

v. Marshall, 564 U.S. 462, 483 (2011) (quoting United States

v. Nixon, 418 U.S. 683, 704 (1974)). We therefore reject it.

26

In this as-applied challenge, we need not address the

scope of the BIA’s self- certification authority across the

board. We need only address whether the BIA was authorized

to self-certify an appeal in this case, where (1) the IJ’s order

adjusted Qatanani’s status to LPR under 8 U.S.C. § 1255(a),

and (2) the BIA sought to self-certify an appeal more than 30

days after the IJ’s order. That action is inconsistent with the

finality of an adjustment to LPR status under § 1255(a), as

recognized by § 1255(b). When the time to appeal lapsed with

no appeal filed, that marked the end of the Attorney General’s

discretion over Qatanani’s adjustment of status in the first

instance. The Attorney General was obligated by

Congressional mandate to record Qatanani’s adjustment to

LPR status as of the date of the IJ’s April 2020 order. 8 U.S.C.

§ 1255(b).

Of course, Congress provided the Attorney General

another five years of authority to pursue recission of the

adjustment if the Attorney General was satisfied that Qatanani

was ineligible for the adjustment as of the date it took effect

(that is, April 27, 2020). 8 U.S.C. § 1256(a).10 But the

10

Any disputes about recission proceedings for Qatanani are

beyond the scope of this petition. We are unaware of whether

the Attorney General initiated recission proceedings.

However, because the government contended in a post-

argument letter that the five-year period to do so had not yet

expired (but was set to expire in late May 2025), we issued a

Judgment in this matter just six days after oral argument. In

that Judgment, we stated,

27

Attorney General was prohibited from otherwise disturbing the

adjustment to LPR status. To hold otherwise “would

undermine the security which ought to attend permanent

resident status.” Bamidele, 99 F.3d at 564 (cleaned up).

As we have long recognized, “[t]hat which is

accomplished by a rescission of status is pretty harsh. It is

comparable to the revocation of citizenship about which the

courts have been very keen to make sure that the individual

received careful protection.” Id. (quoting Quintana v. Holland,

255 F.2d 161, 164 (3d Cir. 1958)); see also id. (noting that the

rescission of LPR status “blocks the man on the road to

citizenship, and results in banishment from a country where he

may have lived a long time”) (quoting Quintana, 255 F.2d at

164). Rescission of LPR status and revocation of naturalized

citizenship require the Executive to follow the procedures

[I]n the circumstances of this case, the Board

exceeded its authority when it invoked 8 C.F.R.

§ 1003.1(c) and reversed the Immigration

Judge’s decision adjusting petitioner’s status to

that of a lawful permanent resident. This

conclusion is without prejudice to the Attorney

General’s exercise of authority to commence

other proceedings under the Immigration and

Nationality Act to the extent applicable.

Judgment at 2, Dkt. No. 49, May 19, 2025 (emphasis added

and footnote omitted). In a footnote, we explained that we

issued the Judgment with an opinion to follow because we

were “[m]indful that certain provisions of the INA impose a

limitations period on the authority of the Attorney General to

commence proceedings.” Id. at 2 n.2.

28

Congress has put in place. See id. at 564–65; Gorbach v. Reno,

219 F.3d 1087, 1094 (9th Cir. 2000) (“[I]mplying authority for

the Attorney General to take away people’s citizenship

administratively would gravely upset this carefully constructed

legislative arrangement.”).11

“To permit an agency to expand its power in the face of

a congressional limitation on its jurisdiction would be to grant

to the agency power to override Congress.” Louisiana Pub.

11

According to the dissent, § 1256(a) limits only the Attorney

General’s authority to rescind an adjustment to LPR status

based on ineligibility, and the Attorney General may

continually reevaluate the discretionary aspect of an

adjustment to LPR status. Dissent at 12–14. But Congress

imposed a five-year limitation period on the Attorney

General’s ability to pursue recission of an adjustment to LPR

status when a noncitizen never satisfied Congress’s criteria for

his adjustment to LPR status in the first instance. 8 U.S.C.

§ 1256(a). This limitation would be toothless if the Attorney

General could exercise her discretion to rescind an adjustment

to LPR status at any time. See Bamidele v. INS, 99 F.3d 557,

565 (3d Cir. 1996) (“[W]e cannot agree that Congress,

presumably knowing that rescission usually places [a

noncitizen] at immediate risk of deportation, would go to the

trouble of enacting a statute of limitations on rescission

actions, and then intend it to be construed so narrowly that it

offered virtually no protection from untimely action by the

[Attorney General].”).

29

Serv. Comm’n v. FCC, 476 U.S. 355, 374–75 (1986).12 And,

here, the BIA’s actions went beyond the scope of the rescission

procedures Congress authorized in the INA. See Sharkey v.

Quarantillo, 541 F.3d 75, 93 (2d Cir. 2008) (“We cannot

accept the [agency]’s interpretation of the statute and the

regulation, which would render them nullities.”). It acted

unlawfully.

12

Because no regulation can undermine a statute, we need not

address deference to the BIA’s interpretation of its regulations.

We note, however, that we defer to an agency’s interpretation

of its regulation only when the regulation is genuinely

ambiguous, the agency’s interpretation is reasonable and

implicates its substantive expertise, and does not create unfair

surprise to regulated parties. Kisor v. Wilkie, 588 U.S. 558,

575–77 (2019); see also United States v. McIntosh, 124 F.4th

199, 206 n.3 (3d Cir. 2024) (confirming that Kisor is

undisturbed by the Supreme Court’s decision eliminating

Chevron deference). No deference would be due to the BIA’s

interpretation of 8 C.F.R. § 1003.1(c) in Qatanani’s case. The

BIA’s interpretation is not reasonable for all the reasons

discussed above. It also creates unfair surprise to parties who

rely on the permanence of an adjustment to LPR status under

§ 1255(a). And the issue here—the interaction between (1) the

30-day period to appeal the IJ’s order granting an adjustment

to LPR status under § 1255(a) and (2) the terms of the INA—

is a legal issue that implicates the expertise of the Judiciary,

not the Executive. See Garcia v. Att’y Gen., 553 F.3d 724, 727

(3d Cir. 2009); Bamidele, 99 F.3d at 561; McCuin v. Sec’y of

Health & Hum. Servs., 817 F.2d 161, 168 (1st Cir. 1987).

30

2.

The BIA’s purported authority to retroactively nullify

Qatanani’s adjustment to LPR status also runs afoul of the

well-settled principles of finality and due process.

In administrative proceedings—and in immigration

matters specifically—“the finality of an order cannot be

conditioned on something that may never happen.” Jie Fang v.

Dir. United States Immigr. & Customs Enf’t, 935 F.3d 172, 184

(3d Cir. 2019) (citing Pinho, 432 F.3d at 193).13 The BIA

rarely self-certifies any late-filed appeal. See Matter of

Morales-Morales, 28 I. & N. Dec. 714, 715 (BIA 2023)

(describing the BIA’s authority to self-certify a late-filed

appeal under § 1003.1(c) as “a safety valve for exceptional

circumstances.”).14 And we are unaware of any case other than

13

See also Univ. of Tenn. v. Elliott, 478 U.S. 788, 798 n.6

(1986) (“Where an administrative forum has the essential

procedural characteristics of a court, . . . its determinations

should be accorded the same finality that is accorded the

judgment of a court. The importance of bringing a legal

controversy to conclusion is generally no less when the tribunal

is an administrative tribunal than when it is a court.”)

(alteration in original) (quoting Restatement (Second) of

Judgments § 83, p. 269 (1982)).

14

The government suggests that concerns about the BIA’s

purported authority to self-certify a late appeal of an order

adjusting a noncitizen’s status to that of an LPR are tempered

by the requirement that the BIA use its authority only in

“exceptional circumstances.” See Matter of Morales-Morales,

31

Qatanani’s in which the BIA has attempted to self-certify a

late-filed DHS appeal of an order granting an adjustment to

LPR status. We conclude that the finality of an immigration

judge’s order granting adjustment to LPR status under

§ 1225(a) cannot depend on whether the Executive self-

certifies a late-filed appeal of that order—an event that may

never happen. See Jie Fang, 935 F.3d at 184.15 Instead, those

orders become final by operation of law at a predictable and

discernable time: when the 30-day period to appeal such an

order lapses and no appeal has been taken.

Due process also requires that an order granting an

application to adjust to LPR status have clear and predictable

finality. It does not matter that adjustment to LPR status is

itself discretionary.16 Noncitizens who seek discretionary

28 I. & N. Dec. 714, 715 (BIA 2023); OA Tr. at 43–45. But

that amorphous standard does not begin to cure the finality and

due-process concerns addressed in this opinion. Further, the

government offers little more than “its assurances that we can

trust the BIA not to abuse its power.” Chehazeh, 666 F.3d at

129. But “‘trust us’ is a poor operating principle for

government.” Id. at 130.

15

We do not address the BIA’s authority to self-certify late

appeals of orders other than those granting adjustment to LPR

status under § 1225(a).

16

We need not reach the Attorney General’s exercise of

discretion because we conclude that the BIA lacked authority

to hear a late appeal of the IJ’s April 2020 order. See Garcia,

553 F.3d at 729 (distinguishing between a challenge to a

32

relief in immigration proceedings are guaranteed due process.

Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 384 (3d Cir.

2020) (addressing the procedural due process rights of persons

seeking asylum); see Galvan, 347 U.S. at 531 (“In the

enforcement of [immigration] policies, the Executive Branch

of the Government must respect the procedural safeguards of

due process.”).

Moreover, a noncitizen is “accorded a generous and

ascending scale of rights as he increases his identity with our

society.” Osorio-Martinez, 893 F.3d at 168 (quoting Kwong

Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953)). An

immigrant with LPR status has developed “substantial

connections with this country.” United States v. Verdugo-

Urquidez, 494 U.S. 259, 271 (1990). That makes him the

“quintessential example of [a noncitizen] entitled to ‘broad

constitutional protections.’” Osorio-Martinez, 893 F.3d at 174

(quoting Castro, 835 F.3d at 447). That entitlement includes

heightened procedural protections. See Sharkey, 541 F.3d at

86–87.

As discussed above, when 30 days elapsed without any

party initiating an appeal from the IJ’s April 2020 order,

discretionary decision to commence proceedings and “the

government’s very authority to commence those

proceedings”). Qatanani is seeking “to enforce the result of an

adjudication that has already taken place,” Chehazeh, 666 F.3d

at 137—the adjudication that conferred LPR status upon him.

33

Qatanani’s admission with LPR status became final.17 As a

noncitizen with LPR status, he was entitled to heightened

procedural protections. See id. Permitting the BIA to rescind

his adjustment to LPR status outside of the process Congress

provided would violate those due process protections. See

Chrupcala v. Heckler, 829 F.2d 1269, 1273 (3d Cir. 1987)

(rejecting on procedural due process grounds an administrative

appeal body’s authority to review the grant of social security

benefits after the appeal period expired). It would eliminate

the security that attends LPR status, undermining Qatanani’s

ability to rely on his status to make decisions about home,

family, community, and career in this country. See Bamidele,

99 F.3d at 564. And the purported authority of the BIA to self-

certify late appeals of orders conferring LPR status would

subject permanent residents to the “embarrassment, expense

and ordeal . . . [of] liv[ing] in a continuing state of anxiety and

insecurity.” Chehazeh v. Att’y Gen., 666 F.3d 118, 137 (3d Cir.

2012) (citation omitted).

For all of these reasons, the BIA lacked authority to self-

certify a late appeal in this case. It also lacked authority to

issue an order of removal.18

17

We do not “make [Qatanani] a lawful permanent resident.”

Dissent at 1. The IJ did that, acting as the delegate of the

Attorney General. We grant Qatanani’s request to “enforce the

result of an adjudication that has already taken place,”

Chehazeh, 666 F.3d at 137, by providing his adjustment to LPR

status the protection Congress commanded.

18

The government argues that the IJ’s April 2020 order never

became final because Qatanani’s medical exam, fingerprints,

34

C.

We briefly express our grave concerns with the

substance of the BIA’s 2024 decision. At several points, the

BIA ignored the IJ’s factfinding (including credibility

determinations), found facts for itself, substituted its view of

the facts in place of the IJ’s “permissible” view, and cherry-

picked from the record (rather than meaningfully considering

it as a whole), despite the clear instruction of our precedent and

its own regulations. See Alimbaev v. Att’y Gen., 872 F.3d 188,

195–200 (3d Cir. 2017); 8 C.F.R. § 1003.1(d)(3)(i), (iv).

Moreover, the BIA penalized Qatanani for quintessential First

Amendment activity. But we do not have occasion here to

adjudicate the merits of those issues given an even more

fundamental problem: The IJ’s April 2020 order adjusting

Qatanani’s status became final when no timely appeal was

filed, and the BIA lacked authority to hear DHS’s late appeal

of that order.

and background checks may have required updating,

(notwithstanding that the IJ and counsel for DHS confirmed

they were updated. At most, these issues go to whether the IJ

should have adjusted Qatanani’s status, not whether the IJ did

so. The government also questions whether the Secretary of

State allocated a visa number for Qatanani as required upon the

grant of LPR status. See 8 U.S.C. § 1255(b). But whether the

Secretary of State completed this ministerial task does not

affect the adjustment of Qatanani’s status. See Hanif v. Att’y

Gen., 694 F.3d 479, 485 (3d Cir. 2012).

35

* * *

For the foregoing reasons, we granted Qatanani’s

petition for review and vacated the BIA’s order of removal in

our May 19, 2025, Judgment.

36

MATEY, Circuit Judge, dissenting.

For more than a quarter century, five Presidents and ten

Attorneys General have objected to Mohammad Qatanani’s

presence in our Nation. After his three-year allowance ended

in 1999, these Executives and their representatives determined,

over and again, that Qatanani must leave. Yet today, this Court

makes him a lawful permanent resident because we have lost

the “respect for the functions of the other branches,” Webster

v. Doe, 486 U.S. 592, 609 (1988) (Scalia, J., dissenting), which

was grounded in “a judicial attitude founded in law and

hallowed by time” that “sees judicial review of agency action

and executive action as sensitive business” deserving

deference, Adrian Vermeule, A Traditional Respect for the

Functions of the Other Branches, The New Digest (Feb. 27,

2025). Our decision today forgets that humility and adds

another impediment to the Executive’s ability to carry out his

duty to take care of immigration matters, a power that is both

derived from congressional will and inherent in any sovereign.

Nearly thirty years ago, the same year Qatanani arrived

for his “temporary” visit to the United States, Congress, in an

action praised by then-President Clinton as a “landmark

immigration reform” that “strengthens the rule of law by

cracking down on illegal immigration at the border,”1 acted to

“‘protec[t] the Executive’s discretion’ from undue interference

1

William J. Clinton, Statement on Signing the Omnibus

Consolidated Appropriations Act, 1997 (Sept. 30, 1996),

available at Gerhard Peters and John T. Woolley, The

American Presidency Project, https://perma.cc/L47G-PSQQ.

1

by the courts.”2 I would respect that political judgment,

mindful that “[n]o one, so far as my search of the several

constitutional records uncovered, look[s] to the Court for

‘leadership’ in resolving problems that Congress, the

President . . . failed to solve.”3 So with due regard for the

political branches’ control over immigration, I would dismiss

Qatanani’s petition.

I.

Qatanani entered the United States in 1996 on a H-1B

nonimmigrant visa with authorization to serve as an imam at

The Islamic Center of Passaic Country (ICPC) until April 1,

1999. Rather than leave, he applied to adjust his status to lawful

permanent residence (LPR). After almost two decades of

2

Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S.

103, 112 (2020) (alteration in original) (quoting Reno v.

Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486

(1999)); see Reno, 525 U.S. at 486 (“Of course many

provisions of IIRIRA are aimed at protecting the Executive’s

discretion from the courts—indeed, that can fairly be said to be

the theme of the legislation.”).

3

Raoul Berger, Government by Judiciary: The

Transformation of the Fourteenth Amendment 326 (2d ed.

1997).

2

administrative proceedings,4 an Immigration Judge (IJ)5 found

Qatanani eligible for a status adjustment and deserving one as

a matter of discretion. But the Board of Immigration Appeals

4

DHS initiated removal proceedings in 2006, but the IJ

did not reach a preliminary decision until 2008. The BIA

reversed that decision in 2009, triggering nearly five more

years of administrative review, another interim appeal and

reversal by the BIA in 2014, followed by another three years

of hearings before the IJ closed the evidentiary record in 2017.

Not until three years later did the IJ grant Qatanani a status

adjustment, a decision the BIA reversed in 2024. None can

deny the Executive afforded Qatanani extensive, personalized

process.

5

As I have explained elsewhere, special inquiry officers

were renamed “immigration judges” in the 1970s to confer “a

more prestigious title.” David A. Martin, Major Issues in

Immigration Law 7 (Federal Judicial Center 1987);

Immigration Judge, 38 Fed. Reg. 8590 (Apr. 4, 1973);

Pino-Porras v. Att’y Gen., No. 22-3419, 2025 WL 1752491, at

*3 n.1 (3d Cir. June 25, 2025) (Matey, J., dissenting). This new

title needlessly promoted the “judicialization” of IJs, Martin,

supra, at 8, and brought understandable confusion as

commentators, and citizens, understandably assume these

employees exercise judicial, rather than executive power. But

they hold no power under Article III, and are merely inferior

officers of the United States, supervised by the Attorney

General, and, in turn, the President, performing only “such

duties as the Attorney General shall prescribe.” 8 U.S.C.

§ 1101(b)(4).

3

(BIA) disagreed, noting Qatanani’s lack of candor,6 admitted

association with Hamas supporters, public call for a “new

intifada,” and failure to demonstrate yearly tax filings. A.R. 8.

As I explain below, I would not disturb the BIA’s decision.

II.

Qatanani raises three main arguments. First, he claims

the BIA could not review the IJ’s decision under 8 C.F.R.

§ 1003.1(c). But as I explain in Part III, the BIA’s authority to

self-certify a case is not temporally limited. Second, Qatanani

claims the BIA relied on facts not found by the IJ. That is either

incorrect, or a harmless error, as I explain in Part IV. Third,

Qatanani claims the BIA’s decision violated the First

Amendment by considering his call for a new intifada and

associations with Hamas supporters. But as I explain in Part V,

Qatanani is not a member of “the people” the First Amendment

6

As the majority notes, Qatanani was detained and

questioned by Israeli forces upon crossing into the West Bank

from Jordan in 1993. From 1985 to 1991, Qatanani was an

active member in the Muslim Brotherhood, which led to Israeli

suspicion that Qatanani was a “member of the Islamic

Resistance Movement; also known as HAMAS” because

“HAMAS had been formed from the Muslim Brotherhood” in

1987. A.R. 7170, 7460–61. The same year Qatanani was

detained by Israeli forces, Qatanani met with his now deceased

brother-in-law, Sumaia Abu Hanoud, whom Qatanani himself

described as the “military leader of HAMAS.” A.R. 7171.

Despite Qatanani’s acknowledgment of Hanoud’s leadership

in Hamas, Qatanani’s wife and her brothers have “denied the

relationship between Mr. Hanoud and HAMAS when

questioned by the U.S. authorities.” A.R. 7172.

4

restricts government action against, nor is the denial of a status

adjustment a punitive action that could ever ground a First

Amendment claim. More broadly, Qatanani’s arguments and

the majority’s reasoning deviate from the nature of our

Nation’s immigration laws, and the tradition they are founded

on. So I begin by explaining the Executive’s role over

immigration.

Much of our present policy is governed by the

Immigration and Nationality Act (INA). 66 Stat. 163, as

amended 8 U.S.C. § 1101 et seq. But the ends enacted by

Congress are informed by principles animating the INA7 and

“any policy toward aliens” is “intricately interwoven with

contemporaneous policies in regard to the conduct of foreign

7

Statutes are merely “a communal directive,” Dig. 1.3.1

(Papinian, Definitions 1) (Alan Watson, trans., 1998), “the

lawmaker’s reasoned ordination for the common good”

expressed in text, Adrian Vermeule, Common Good

Constitutionalism 75 (2022). Since reasoned choices arise

against, and from, the natural law, Vermeule, supra, at 80, we

look to those principles to “ascertain the meaning and will of

the lawmaking body,” William M. Lile et al., Brief Making and

the Use of Law Books 337 (3d ed. 1914) (quoted in Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 12 (2012)). Otherwise, we miss “grasping

[statutes’] force and tendency.” Dig. 1.3.17 (Celsus, Digest

26); see also Richard Ekins, The Nature of Legislative Intent

245 (2012) (“[T]he central point of interpreting . . . some

legislature’s lawmaking act [is] to understand what they have

said and done, which means to identify the intentions on which

they acted and which they aimed—meant—to make

recognizable.”).

5

relations, the war power, and the maintenance of a republican

form of government.” Harisiades v. Shaughnessy, 342 U.S.

580, 588–89 (1952). A sovereign’s control over immigration is

not a creation of our Constitution but is instead “an accepted

maxim of international law,” Nishimura Ekiu v. United States,

142 U.S. 651, 659 (1892), so I turn first to that universal

understanding.

A sovereign may always “forbid the entrance of his

territory either to foreigners in general or in particular cases, or

to certain persons or for certain particular purposes.”8 As part

of that duty, a sovereign has complete discretion to determine

who it deems worthy to enter all parts of its political

community.9 Necessarily, there is no obligation to accept all

8

Emmerich de Vattel, The Laws of Nations § 94, at

169–70 (Philadelphia, Joseph Chitty ed., R. & J. W. Johnson

1852) (1758); see also 1 Robert Phillimore, Commentaries

Upon International Law 320 (London, Butterworths 3d ed.

1879) (“[T]he Government of a State may prohibit the entrance

of strangers into the country . . . .”); Samuel Pufendorf, Of the

Law of Nature and Nations c. 3, § 9, at 245–46 (London, Basil

Kennett trans., 4th ed. 1729) (explaining sovereigns may grant

“[l]icence to Foreigners to come and settle amongst them”).

9

Vattel explained a sovereign can admit and expel a

foreigner from the land “as he may think it advantageous to the

state.” Vattel, supra, at 170. As Phillimore put it, a sovereign

“regulate[s] the conditions under which [foreigners] shall be

allowed to remain in [the territory[], or may require and compel

their departure from it.” Phillimore, supra, at 320. This

discretion to extend foreigners the privilege to be within a

sovereign’s domain was only exercised favorably if a foreigner

“submit[s] to the establish’d Government, and behave[s]

6

aliens under all circumstances.10 The English tradition

mirrored this understanding of sovereign discretion, granting

the King sole administrative power. See 1 William Blackstone,

Commentaries *259–60 (explaining that “strangers” to the

nation are “liable to be sent home whenever the king sees

occasion”).11 The American practice followed England’s lead,

vesting immigration choices in the political branches. See

Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“[C]ontrol over

matters of immigration is a sovereign prerogative, largely

within the control of the executive and the legislature.”).12

themselves with such Prudence and Decency, as to administer

no occasion to Factions and Seditions” or “endanger the

Natives.” Pufendorf, supra, at §§ 9–10, 245–46.

10

Pufendorf, supra, at § 10, 246 (explaining that

“[h]umanity” does not counsel a sovereign to accept a

foreigner who was “expell’d their Home” “for their own

Demerit and Crime”).

11

See also John Locke, Second Treatise of Civil

Government §§ 146–47, at 73 (J.W. Gough ed., Basil

Blackwell 1948) (1690) (noting the power to act toward

“foreigners, depending much upon their actions, and the

variation of designs and interests, must be left in great part to

the prudence” of the executive “who ha[s] this power

committed to them, to be managed by the best of their skill, for

the advantage of the commonwealth”).

12

See also Fong Yue Ting v. United States, 149 U.S.

698, 707 (1893) (“The right to exclude or to expel all aliens, or

any class of aliens, absolutely or upon certain conditions, in

war or in peace, [is] an inherent and inalienable right of every

sovereign and independent nation, essential to its safety, its

independence, and its welfare . . . .”); Ping v. United States,

130 U.S. 581, 603–04 (1889) (“Jurisdiction over its own

7

Because a sovereign holds the duty to control who may

enter its borders, an alien’s license to remain within our Nation

is always “a matter of grace, not right.” Elkins v. Moreno, 435

U.S. 647, 667 (1978); see also Ameeriar v. Immigr. &

Naturalization Serv., 438 F.2d 1028, 1030 (3d Cir. 1971) (en

banc) (“Adjustment of status is . . . a matter of administrative

grace, not mere statutory eligibility.”). That is because

“[a]dmission of aliens to the United States is a privilege

granted by the sovereign United States Government . . . only

upon such terms as the United States shall prescribe.” Knauff

v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon,

459 U.S. at 32 (“This Court has long held that an alien seeking

initial admission to the United States requests a privilege and

has no constitutional rights regarding his application, for the

power to admit or exclude aliens is a sovereign prerogative.”).

The Sovereign’s duty to police its borders imposes a

continuous prerogative, one Congress codified in the INA. The

design of the INA embraces Executive reassessment of aliens,

confirming constant oversight and corresponding authority to

conclude that the grace by which an alien was permitted to

territory to that extent is an incident of every independent

nation. It is a part of its independence. If it could not exclude

aliens it would be to that extent subject to the control of another

power.”); Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)

(“The exclusion of aliens is a fundamental act of sovereignty.

The right to do so stems not alone from legislative power but

is inherent in the executive power to control the foreign affairs

of the nation. When Congress prescribes a procedure

concerning the admissibility of aliens, it is not dealing alone

with a legislative power. It is implementing an inherent

executive power.”).

8

enter and remain in our Nation is no longer due. Executive

immigration decisions, unlike judicial judgments, necessarily

fluctuate and so do not possess the finality associated with

ordinary civil or criminal cases.13 That is true even if an alien

naturalizes.14 All meaning that no judicial-like finality

13

For example, the Attorney General is not constrained

in ordering “any person not a citizen or national of the United

States,” 8 U.S.C. § 1101(a)(3), removed if—regardless of

status—the alien “has engaged in a terrorist activity,” 8 U.S.C.

§ 1182(a)(3)(B)(i)(I), or “endorses or espouses terrorist

activity or persuades others to endorse or espouse terrorist

activity or support a terrorist organization,”

§ 1182(a)(3)(B)(i)(VII). See 8 U.S.C. § 1227(a)(4)(B) (“Any

alien who is described in subparagraph (B) or (F) of section

1182(a)(3) of this title is deportable.”).

14

If an alien became a naturalized citizen “upon the

basis of a record of a lawful admission for permanent

residence” that was “created as a result of an adjustment of

status for which such person was in fact not eligible,” his LPR

status may be rescinded and his naturalization may be revoked.

8 U.S.C. § 1256(b). Naturalization can also be revoked on

other grounds under 8 U.S.C. § 1451, including when a

naturalized person “become[s] a member of or affiliated with

any organization . . . with which at the time of naturalization

would have precluded such person from naturalization.”

§ 1451(c). That action is “considered prima facia evidence that

such person was not attached to the principles of the

Constitution of the United States and was not well disposed to

the good order and happiness of the United States at the time

of naturalization.” § 1451(c). And the Attorney General has the

power to “correct, reopen, alter, modify, or vacate an order

naturalizing the person.” § 1451(h).

9

descends upon immigration decisions, including discretionary

status adjustment determinations. And that is where the

majority and I part: due regard for the political questions

inherent in immigration leaves no room for judicial policing

over policy.15

15

By “political questions” I refer not to modern tests

from caselaw, but the original principle that discretionary

judgments assigned to, or arising in, the political process

cannot involve the judicial power over cases and controversies.

Many have rightly criticized the reimagining of this limitation

in Baker v. Carr, 369 U.S. 186 (1962), as doubly deceitful.

Baker stingily cabins the deference owed to the political

branches while expanding judicial review all under the guise

of restraint. But “[t]he distinction in constitutional law between

political and legal questions has been with us from the

beginning.” Robert F. Nagel, Political Law, Legalistic Politics:

A Recent History of the Political Question Doctrine, 56 Chi. L.

Rev. 643, 644 (1989). Unfortunately, adherence to that “old

fashioned” principle changed with Baker, which through the

“the lens of modern functionalism” limited the scope of the

political question doctrine by replacing “observation” and

“rationalization” with “functional analysis” to “expand[] the

judiciary’s role.” Id. at 644–46. Such perversion of

long-standing principle, “extend[ed] the judicial function

beyond its bounds,” resulting in “a pedantic and academic

treatment of the texts of the constitution and laws,” far

removed from “ordinary and humble judicial duty.” James B.

Thayer, The Origin and Scope of the American Doctrine of

Constitutional Law, 7 Harv. L. Rev. 129, 138 (1893).

Instead, courts should observe the firmer, older view

that “[i]n the case of purely political acts and of the exercise of

mere discretion, it mattered not that other departments were

10

III.

The majority contends LPR status became final when

DHS’s appeal window expired, an argument Qatanani failed to

exhaust, and a conclusion that conflicts with the BIA’s codified

authority.

violating the constitution, the judiciary could not interfere; on

the contrary, they must accept and enforce their acts.” Id. at

134–35; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137,

170–71 (1803); Decatur v. Paulding, 39 U.S. (14 Pet.) 497,

515 (1840). It is not balancing factors that make the Attorney

General’s discretion unreviewable, but the nature of

immigration decisions inherent in Sovereignty. See Oliver P.

Field, The Doctrine of Political Questions in the Federal

Courts, 8 Minn. L. Rev. 485, 492–94 (1924); Lem Moon Sing

v. United States, 158 U.S. 538, 548 (1895) (whether an alien

may remain is “a matter wholly political in its character,” that

must be made “exclusively and finally, in every instance, by

executive officers charged by an act of congress with the duty

of executing the will of the political department of the

government”). Fear that such power by the political branches

“may be abused” provides no justification for departing from

this longstanding principle. Martin v. Mott, 25 U.S. (12

Wheat.) 19, 32 (1827). The remedy for abuse “as well as for all

other official misconduct” “is to be found in the constitution

itself. In a free government, the danger must be remote, since

in addition to the high qualities which the Executive must be

presumed to possess, of public virtue, and honest devotion to

the public interests, the frequency of elections, and the

watchfulness of the representatives of the nation, carry with

them all the checks which can be useful to guard against

usurpation or wanton tyranny.” Id.

11

A.

Start with exhaustion, as we “may review a final order

of removal only if . . . the alien has exhausted all administrative

remedies available.” 8 U.S.C. § 1252(d). Qatanani has not. He

never argued before the BIA that his LPR status was final and

could not be rescinded absent compliance with 8 U.S.C.

§ 1256(a) (rescission of status adjustment) or 8 U.S.C. §§ 1229

and 1229a (commencement of new removal proceedings). The

Attorney General noted Qatanani’s failure to comply with

section 1252(d)(1), so “we ‘must enforce the rule,’” Aguilar v.

Att’y Gen., 107 F.4th 164, 169 (3d Cir. 2024) (quoting Fort

Bend Cnty. v. Davis, 587 U.S. 541, 549 (2019)).

Qatanani tries to justify his noncompliance by

repackaging his claims as a facial challenge to the “validity of

the BIA’s certification regulation.” Opening Br. 26. He reasons

that because the BIA lacks authority to consider challenges to

its own regulations, exhaustion was unnecessary. Not so.

Although the BIA will not review challenges to the validity or

constitutionality of its own regulations, Matter of Anselmo, 20

I. & N. Dec. 25, 30 (BIA 1989), it can consider challenges to

its own application of a regulation in specific circumstances.

Thus, his “claim was within the jurisdiction of the BIA to

consider,” and the BIA “was capable of granting the remedy

sought by the alien,” so it is subject to administrative

exhaustion. Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d

Cir. 2005).

Following our usual practice of requiring a petitioner

“make[] some effort . . . to place the Board on notice” of the

issue, Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021),

12

makes much sense here. If Qatanani had advised the BIA of his

construction of section 1003.1(c) and offered his arguments

about the burdens and hardships of using that authority in his

case—points he argued on appeal for the first time—the BIA

might well have agreed. That would have obviated our wading

into a host of novel questions without any chance for

administrative input. Reaching to resolve niche questions

about obscure procedural practices presents the sort of risks,

inefficiencies, and intrusions into the Executive that animate

the statutory exhaustion requirement. I would apply that sound

limitation here.

B.

On the merits, the IJ’s decision did not result in a final

status adjustment because the BIA self-certified Qatanani’s

case for review. That decision was proper because 1) there is

no temporal limit on the BIA’s certification authority, and 2)

the certification regulation does not conflict with the statutory

scheme for rescinding LPR status.

1.

Ordinarily, “the decision of the Immigration Judge

becomes final upon waiver of appeal or upon expiration of the

time to appeal if no appeal is taken whichever occurs first.”

8 C.F.R. § 1003.39. Any notice of appeal “shall be

filed . . . within 30 calendar days after the stating of an

immigration judge’s oral decision or the mailing or electronic

notification of an immigration judge’s written decision.”

8 C.F.R. § 1003.38(b). Typically, then, an IJ’s decision would

be treated as final within thirty calendar days absent appeal.

§ 1003.38. But section 1003.39 explains “the decision of the

13

Immigration Judge becomes final” “[e]xcept when certified to

the Board.” That carveout controls this case. The majority

disagrees and cabins the BIA’s ability to certify a case to the

thirty-day window for appeal, imposing a limitation absent

from regulation and statute.

Certification is a compliment to the appeals process, one

that allows the Attorney General to discharge the Executive’s

duty to oversee immigration decisions. Embodying the

responsibility to ensure consistent and suitable judgments

within the Executive branch, the BIA’s certification power

extends to any case over which it has appellate jurisdiction,

including decisions of an IJ in removal proceedings16 or on an

application for adjustment of status.17 § 1003.1(c).

A case can be certified to the BIA by an IJ, DHS, or the

BIA itself. Id. Requests by an IJ or DHS are limited to the

timeframe “after an initial decision has been made and before

an appeal has been taken.” 8 C.F.R. § 1003.7. That means

certifications sought by an IJ or DHS must occur inside the

thirty-day appeal window.18 But no similar temporal limitation

is placed on the BIA’s certification authority. Instead, “[t]he

Board, in its discretion, may review any such case by

certification without regard to” the temporal limits placed on

an IJ or DHS officer under section 1003.7 if “the parties have

already been given a fair opportunity to make representations

16

See § 1003.1(b)(3).

17

See § 1003.1(b)(12).

18

See § 1003.38(b) (requiring any notice of appeal of an

IJ’s decision to be filed “within 30 calendar days after the

stating of an [IJ’s] oral decision or the mailing or electronic

notification of an [IJ’s] written decision”).

14

before the Board regarding the case, including the opportunity

to request oral argument and to submit a brief.” § 1003.1(c). So

to give meaning to “every word and every provision” in both

sections 1003.1(c) and 1003.7, the BIA’s certification

authority cannot be limited to the thirty-day appeal window.

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 174 (2012) (citing Dig. 2.7.5.2

(Ulpian, Edict 5) (“Words are to be taken as having an

effect.”)). The absence of a temporal restriction on the BIA’s

authority to self-certify a case is not a defect, evidenced by a

parallel regulation giving the BIA power to review its own

prior decisions sua sponte and without a temporal restriction,

see 8 C.F.R. § 1003.2(a), one we have recognized, see Park v.

Att’y Gen., 846 F.3d 645, 647–48 (3d Cir. 2017). As a result,

the BIA’s discretion to revisit both an IJ’s decision and its own

decisions “is broad—so broad, in fact, that we have no

meaningful way to review it, thereby depriving us of

jurisdiction.” Park, 846 F.3d at 648. In sum, an IJ’s decision

can be reviewed whenever the BIA self-certifies the case.

2.

The majority does not disagree with the ordinary

reading of section 1003.1(c); rather, it sees irreconcilable

tension with statutory authority over ministerial acts

accompanying status adjustments and the recission of LPR

status. But none exists.

First, there is no conflict between the BIA’s authority to

self-certify a case under section 1003.1(c) and recission of

status under section 1256(a). Status adjustments involve a

two-step inquiry. 8 U.S.C. § 1255(a). First, the alien must

prove he is “eligible” by demonstrating the “threshold

15

requirements established by Congress.” Patel v. Garland, 596

U.S. 328, 332 (2022); see also §§ 1255(a), 1182. Second, the

alien must also persuade the Executive that “he merits a

favorable exercise of discretion.” Patel, 596 U.S. at 332.

Section 1256(a) concerns solely the first step, and the Attorney

General may rescind a status adjustment only if the alien was

ineligible for a status adjustment within five years of the

adjustment.19 But section 1256(a) says nothing about the

discretionary judgment of the Attorney General’s analysis.

Thus, while the statutory scheme Congress created for

rescinding LPR status is cabined to eligibility determinations,

the BIA’s certification authority permits the Executive to

review the discretionary determination whether an alien’s

presence remains preferable. Properly framed, the purported

problems among sections 1003.1(c) and 1256(a) fall away as

they each relate to a different part of the status adjustment

analysis.

Second, the administrative acts that follow a status

adjustment pose no conflict with the BIA’s ongoing

certification authority. As the majority explains, the Attorney

General must record a status adjustment “as of the date [of] the

order,” while the “Secretary of State shall reduce by one the

number of the preference visas authorized to be issued.”

§ 1255(b). Both are mere ministerial acts to track the ebb and

flow of aliens in our Nation. But they say nothing about the

status conferred to the alien and its duration. Nor do these

19

See § 1256(a) (permitting the Attorney General to

rescind LPR status if it “appear[s] to the satisfaction of the

Attorney General that the person was not in fact eligible for

such adjustment of status” and treat the alien “to the same

extent as if the adjustment of status had not been made”).

16

record keeping requirements in any way cabin future Executive

action to reconsider earlier assessments. Such secretarial

systems are silent as to the substance of the Executive’s

authority to evaluate the suitability of status adjustments.

Distilled down, the majority’s view that section

1003.1(c) conflicts with the statutory scheme for rescinding

LPR status is grounded in the view that, at some point,

immigration decisions must become final, permanent, and

unchangeable. But as explained in Part II, immigration is a

tiered process through which the Executive exercises authority

under the INA and its inherent power to continually reevaluate

an alien’s request to remain within our Nation. And as licenses

to remain are always a matter of administrative grace, nothing

unexpected, much less unfair, follows from fresh Executive

review through perpetual certification authority.20

20

The majority invokes notions of due process to

ground its view that status adjustments are final. That is

unwarranted as Qatanani never raised a due process claim

before the BIA and has expressly declined to develop any such

argument in this appeal, making the observations dicta. And

any discussion of that notoriously vague phrase requires

precision. The Fifth Amendment does not create an individual

right, but instead serves as a restriction on government,

“secur[ing] the individual from the arbitrary exercise of the

powers of government.” Bank of Columbia v. Okely, 17 U.S.

(4 Wheat.) 235, 244 (1819); see also Hurtado v. California,

110 U.S. 516, 527 (1884). There are no freestanding

substantive rights to oppose all government action, only a

commitment to a set of procedures that, if established,

government must follow before acting against an individual’s

life, liberty, or property. See Nathan S. Chapman, Due Process

17

The BIA did not err in self-certifying the IJ’s decision

for review because no restriction temporally limits its

certification authority. And because certification occurred, the

IJ’s decision granting Qatanani a status adjustment was subject

to review and revision.

IV.

I consider next the BIA’s conclusion that Qatanani did

not warrant a status adjustment as a matter of discretion based

on four adverse factors: 1) his lack of candor in disclosing his

detention in Israel, 2) his failure to submit proof that he

Abroad, 112 Nw. U. L. Rev. 377, 441 (2017) (“The original

understanding of due process guaranteed that courts would

enforce constitutional and statutory limits on governmental

deprivations of ‘life, liberty, or property.’”).

With that proper framing in mind, the majority’s due

process discussion makes two errors. First, the majority

assumes the conversion of status to LPR, the very issue on

appeal before the BIA. Second, even accepting Qatanani

maintained LPR status at the time of the BIA appeal, no

process was skipped. An alien with LPR status must receive “a

fair hearing.” Landon, 459 U.S. at 32. And when certifying a

case for review beyond the thirty-day appeal window, the BIA

must provide the parties an “opportunity to make

representations before the Board regarding the case, including

the opportunity to request oral argument and to submit a brief,”

§ 1003.1(c), which occurred here. So the BIA gave Qatanani

all the process he was owed on appeal. Not to mention the

twenty-five years of extensive process the Executive has

afforded Qatanani since 1999, the sole reason he remains

present.

18

consistently filed taxes, 3) his public call for a new intifada,

and 4) his admitted associations with supporters of the terrorist

organization Hamas. Qatanani says the BIA’s reasoning

hinged on impermissible factual findings. I disagree. And I

note the narrow margin of my review, mindful that Congress

asks the Executive, not the courts, to decide questions about

status adjustments. § 1255(a). With due regard for the

Executive’s authority over such political questions, Congress

stripped our jurisdiction to second guess the Executive’s status

adjustment determinations and the necessarily fact-sensitive

issues that accompany those decisions, 8 U.S.C.

§ 1252(a)(2)(B)(ii), leaving us to review only “whether the

agency made an error of law,” Cortez-Amador v. Att’y Gen.,

66 F.4th 429, 434 (3d Cir. 2023); see § 1252(a)(2)(D). Here,

none occurred.

A.

Qatanani contends the BIA misconstrued facts found by

the IJ regarding his lack of candor and failure to file tax returns.

The BIA is prohibited from “engag[ing] in de novo review of

findings of fact determined by an [IJ].” § 1003.1(d)(3)(i). So if

the BIA’s “characterization of the record appears inaccurate

and reflects a decision to ‘ignor[e]’ evidence crucial to [the]

case” or reweigh testimony, Alimbaev v. Att’y Gen., 872 F.3d

188, 200 (3d Cir. 2017) (quoting Kabba v. Mukasey, 530 F.3d

1239, 1247 (10th Cir. 2008)), then the BIA has exceeded its

authority. Here, at most, the BIA repeated findings made by

the IJ or looked to facts undisputed in the record, neither of

which amounts to fresh findings.

19

1.

In reaching its conclusion that Qatanani’s “lack of

candor on his application for adjustment of status” counseled

against a status adjustment, the BIA relied on the facts noted

by the IJ. A.R. 7. The BIA pointed to Qatanani’s failure to

disclose “his detention in the West Bank” on his adjustment

application. A.R. 7. And based on Qatanani’s educational and

professional accomplishments, see Majority Op. at 4, and his

assistance of counsel in submitting his adjustment

application—all facts the IJ noted—the BIA concluded his

failure to disclose his detention, even if not a willful material

misrepresentation, still reflected a lack of candor. The same

conclusion drawn by the IJ about Qatanani’s lack of candor

based on the same facts the BIA noted. Regardless of whether

the BIA quoted the IJ’s words directly or rephrased them, it did

not substitute findings or discover new facts beyond the record.

2.

The same conclusion applies to the BIA’s determination

that Qatanani failed to “present[] sufficient evidence of having

filed tax returns for the years 2011-2016,” A.R. 10, facts

apparent from the record. The BIA did not suggest, let alone

find, that Qatanani failed to file his taxes, it merely noted

Qatanani omitted those filings.21 Pared down, Qatanani’s

21

While the IJ stated that Qatanani “has consistently

paid his taxes,” A.R. 437, even Qatanani concedes the record

contains no evidence of returns from 2011 to 2016. Whatever

the IJ meant by “consistently,” his statement cannot be

construed as a finding that Qatanani filed taxes from 2011 to

2016.

20

argument amounts to mere disagreement with the BIA, but we

lack jurisdiction to review the BIA’s discretionary decision to

treat certain facts as adverse. See Zheng v. Gonzales, 422 F.3d

98, 111 (3d Cir. 2005) (“[Section 1252(a)(2)(B)(i)] plainly

forecloses review of the Attorney General’s exercise of

discretion in granting adjustment of status in individual

cases . . . .”).

B.

Next, Qatanani quarrels with the BIA’s review of his

speech in Times Square. Let us first set the stage. Qatanani was

a featured speaker at rally in Times Square protesting the

President’s decision to recognize Jerusalem as the capital of

Israel, and to relocate the United States embassy from Tel Aviv

to Jerusalem. As a lead speaker, Qatanani urged the crowd:

“No peace process and negotiation without liberation in

Palestine. [Oslo] has to be stopped and finished. We have to

start a new intifada. Intifada, intifada!” A.R. 1410, 1575.

Qatanani then led the attendees in a call and response exchange

of “Intifada, Intifada!” A.R. 1410. Qatanani again extolled the

crowd that “The time now is different! It is not nineteen ninety-

five,” to which the crowd responded, “With our soul, with our

blood, we will sacrifice [these] for you, Al-Aqsa.” A.R. 1410.22

22

Around the same time as Qatanani’s speech, Hamas

released statements similarly denouncing peace and calling for

a new intifada. At the time DHS moved to enter his speech into

the evidentiary record, those calls had led to multiple outbreaks

of violence, resulting in “deaths and hundreds of injuries.”

A.R. 1575. Unfortunately, the “incessant calls” to “globalize

the intifada” continue on today, and tragically have only

“soften[ed] the ground for future attacks against Jews.” Lee P.

21

None challenge the accuracy of this account.23 The IJ said

intifada means “rebellion” or “uprising,” but declined to say

whether it called for violence. A.R. 437–38. The BIA affirmed

that view, noting “intifada” means “an armed uprising against

another sovereign nation.” A.R. 9. In my view, neither exercise

in reading amounts to a factual finding about Qatanani’s intent.

But even assuming they are, the BIA properly applied

clear-error review.

This is a narrow disagreement about a dictionary entry.

The IJ looked to Merriam-Webster, but despite the clear

definition of “intifada” as an “uprising” or “rebellion,” could

not “decipher what [Qatanani’s] ‘new intifada’ would entail.”

A.R. 438. Then, based on nothing more, the IJ decided

Qatanani’s speech was a “peaceful demonstration.” A.R. 438.

The IJ made no credibility determination and resolved no

disputed facts. He just looked up a word, incorrectly it turns

out.24 The BIA did the same but read the whole entry, which

included “an armed uprising of Palestinians against Israeli

occupation.” A.R. 9.25 If it was permissible for the IJ to look

Rudofsky, et al., Make Sarah and Yaron’s Memory a Blessing,

The Dispatch (May 28, 2025), https://perma.cc/4BY7-469A.

23

To view Qatanani’s full remarks, see Times Square

Rally Opposing Jerusalem as Capital of Israel, Youtube at

17:66–20:36 (Dec. 8, 2017), https://perma.cc/J6KM-ASB5.

24

It appears the IJ quoted the synonyms provided for

“intifada,” not the definition. See Intifada, Merriam-Webster,

https://perma.cc/78F4-V6G9 (last visited Apr. 23, 2025).

25

Of course, “the word intifada is no mystery: It’s a

reference to armed violence—harkening back to the

Palestinian terrorism of the First and Second Intifadas in

Israel.” Rudofsky, supra.

22

up a word, then it is permissible for the BIA to read the full

definition.

But even if buried somewhere in the IJ’s synonym

pursual is a factual finding, the BIA correctly applied the

clear-error standard in reversing. True, the BIA cannot “engage

in de novo review of findings of fact determined by an [IJ].”

§ 1003.1(d)(3)(i). But the BIA may review factual findings “to

determine whether the findings of the [IJ] are clearly

erroneous,” § 1003.1(d)(3)(i), so long as it “identifies specific

reasons for forming a definite and firm conviction that a

mistake has been made,” Alimbaev, 872 F.3d at 196 (citation

and quotation omitted). The BIA did just that, providing

specific explanations for how the IJ erred in finding “intifada”

does not denote at least some sort of violence given its

definition as “an armed uprising.” A.R. 9. The BIA ignored no

contrary evidence, acknowledged the parties’ differing

positions, and did not disturb the IJ’s credibility conclusions.

See Alimbaev, 872 F.3d at 197. If clear-error analysis applies,

the IJ was clearly incorrect.

C.

The BIA also considered Qatanani’s “admitted

connections to people who have fundraised for Hamas” to

counsel against a status adjustment. A.R. 8. That conclusion is

not impugned with reliance on impermissibly found facts.

Even if it were, such error is harmless.

First, the BIA merely pointed to Qatanani’s own

admissions about his connections to people he acknowledged

23

raised funds for Hamas.26 Nothing prohibits the BIA from

considering uncontested facts, even those the IJ did not

mention.27 That is because when the IJ credits the petitioner’s

testimony, as the IJ did here, “a reviewing court is as competent

as an immigration judge to draw logical inferences from those

facts.” Jishiashvili v. Att’y Gen., 402 F.3d 386, 398 (3d Cir.

2005) (Aldisert, J., concurring). Otherwise, the BIA would be

limited to considering only the parts of the record an IJ cited in

rendering a decision.

But even construing the BIA’s analysis as error, it was

harmless. We have repeatedly explained harmless error is not

enough to disturb the Executive’s immigration decisions.28 An

error is “harmless” “when it is highly probable that the error

did not affect the outcome of the case.” Yuan v. Att’y Gen., 642

F.3d 420, 427 (3d Cir. 2011). A sensible limitation, since “[t]he

pursuit of perfection is particularly unwise in the immigration

26

The BIA cited the transcript of Qatanani’s testimony

before the IJ on June 2, 2008, that 1) Qatanani donated money

to the Holy Land Foundation before it was shut down in 2001

for providing material support to Hamas; 2) the ICPC, where

he serves as imam, donated money to the Holy Land

Foundation and held fundraisers for it; and 3) the second imam

at ICPC Qatanani worked with was prosecuted for fundraising

for Hamas.

27

See Wallace v. Gonzales, 463 F.3d 135, 141 (2d Cir.

2006) (per curiam); Chen v. Holder, 703 F.3d 17, 23 (1st Cir.

2012).

28

See, e.g., Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d

Cir. 2011); Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 144 (3d

Cir. 2021); Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 86 n.5

(3d Cir. 2021).

24

context,” where “[n]o principle of administrative law or

common sense requires us to remand a case in quest of a perfect

opinion unless there is reason to believe that the remand might

lead to a different result.” Shkabari v. Gonzales, 427 F.3d 324,

328 (6th Cir. 2005) (quoting Fisher v. Bowen, 869 F.2d 1055,

1057 (7th Cir. 1989)). That is the case here because any error

about Qatanani’s donations was harmless considering

Qatanani’s other admitted associations to Hamas supporters.

V.

Finally, I explain why the BIA’s review of Qatanani’s

Times Square speech and admitted associations with Hamas

supporters does not violate the First Amendment. Of course,

an alien’s speech can offer important insight into his character

that informs the Executive’s determination about whether the

alien’s presence will add to the common good. None disagree

with that observation, nor does the First Amendment because

Qatanani is not part of “the people” the First Amendment

protects, nor is the denial of LPR status a punitive action.

A.

Under the First Amendment, “Congress shall make no

law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and

to petition the government for a redress of grievances.” U.S.

Const. amend. I. This guarantee cannot be invoked by aliens

excluded from our borders because an alien “does not become

one of the people to whom” the First Amendment applies “by

an attempt to enter, forbidden by law.” U.S. ex rel. Turner v.

Williams, 194 U.S. 279, 292 (1904). That is because “[t]o

25

appeal to the Constitution is to concede that this is a land

governed by that supreme law, and as under it the power to

exclude has been determined to exist, those who are excluded

cannot assert the rights in general obtaining in a land to which

they do not belong as citizens or otherwise.” Id. So there is no

debate that excluded aliens cannot invoke the First

Amendment.29

Whether the First Amendment restrains government

action against all aliens within our Nation’s borders is less

explored. Begin with Bridges v. California, involving state

contempt charges against a group including a resident alien

lawfully within the country for at least two decades. 314 U.S.

252 (1941); Bridges v. Wixon, 326 U.S. 135, 137 (1945). With

little analysis, the Court concluded the contempt charge was

impermissible under the First Amendment. Bridges, 314 U.S.

at 270–78. But the Court did not mention, let alone analyze,

Bridges’s alien status. A few years later, the Court considered

whether Bridges, still a lawful resident alien, was removable

under 8 U.S.C. § 137(f) for affiliation with the Communist

Party. Wixon, 326 U.S. at 141. The majority saw insufficient

29

Aliens on the threshold of initial entry are treated as

excluded. See Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206, 212 (1953). So too are aliens who unlawfully step

foot within our borders but are shortly stopped before

developing substantial connections with our Nation akin to

permanent residence. United States v. Ju Toy, 198 U.S. 253,

263 (1905). And aliens paroled into the country are also seen

as excluded because they are treated as if stopped at the border

while administrative proceedings ensue. Thuraissigiam, 591

U.S. at 139; see also Leng May Ma v. Barber, 357 U.S. 185,

190 (1958).

26

evidence of his alleged membership but, in dicta, wrote that

“[f]reedom of speech and press is accorded aliens residing in

this country,” citing only the earlier decision in Bridges v.

California. Id. at 148. Concurring, Justice Murphy wrote that

the statute was unconstitutional and that all aliens lawfully

within our borders receive “the immutable freedoms

guaranteed by the Bill of Rights,” including freedom of speech.

Id. at 160 (Murphy, J., concurring); see id. at 161–62. But

Chief Justice Stone and Justices Roberts and Frankfurter found

no fault with the statute based on Congress’s “plenary power

over the deportation of aliens.” Id. at 167 (Stone, C.J.,

dissenting). So Wixon does not resolve whether the First

Amendment applies to all resident aliens, much less

unauthorized aliens.30 At most, its dicta suggests that lawful

30

Little has been clarified since Wixon. The Court has

continued to acknowledge lawful resident aliens receive First

Amendment protections, but it has never held the First

Amendment restrains government action against aliens with

less protective status. See, e.g., United States v. Verdugo-

Urquidez, 494 U.S. 259, 271 (1990). Some decisions correctly

understand Wixon to address no more than LPRs. See, e.g.,

OPAWL - Bldg. AAPI Feminist Leadership v. Yost, 118 F.4th

770, 776 (6th Cir. 2024); Nat’l Council of Resistance of Iran v.

Dep’t of State, 251 F.3d 192, 203 (D.C. Cir. 2001). But others

read Wixon with less nuance and assume any alien within the

country holds First Amendment guarantees, regardless of

whether the alien is an LPR, only has temporary authorization

to be in the country, or is here illegally. See, e.g., Kim Ho Ma

v. Ashcroft, 257 F.3d 1095, 1109 n.23 (9th Cir. 2001);

Underwager v. Channel 9 Austl., 69 F.3d 361, 365 (9th Cir.

1995); Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d

1045, 1056 (9th Cir. 1995).

27

resident aliens, what we today could call LPRs, can potentially

invoke the First Amendment in some criminal prosecutions.

Our Nation’s longstanding practice also yields few

insights, as there is no unbroken chain of understanding or

“regular course of practice” that might “liquidate & settle the

meaning” of the First Amendment’s applicability to aliens.

Letter to S. Roane (Sept. 2, 1819), in 8 The Writings of James

Madison 450 (1908); see also N.Y. State Rifle & Pistol Ass’n,

Inc. v. Bruen, 597 U.S. 1, 35–36 (2022). Nor is there any

evidence of “a governmental practice [that] has been open,

widespread, and unchallenged since the early days of the

Republic,” that might “guide our interpretation.” Nat’l Lab.

Rel. Bd. v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J.,

concurring in the judgment). All to say, there is no long

standing post-enactment practice—custom, we might properly

call it—recognizing all aliens within our borders possess First

Amendment rights.

B.

But lack of precedent and practice does not mean an

absence of answer derived from “the natural principles that

support our legal tradition,” Range v. Att’y Gen., 124 F.4th

218, 234–35 (3d Cir. 2024) (Matey, J., concurring), which are

the “certain ‘primary truths, or first principles, upon which all

subsequent reasoning must depend,’” id. at 234–35 (quoting

The Federalist No. 31, at 193 (Alexander Hamilton) (C.

Rossiter ed., 1961)).

We know that many aliens within our borders do not

enjoy constitutional protections against state action. Much like

the Preamble and the Second, Fourth, Ninth, and Tenth

Amendments, the First Amendment uses the term “the

28

people,”31 referring “to a class of persons who are part of a

national community or who have otherwise developed

sufficient connections with this country to be considered part

of that community.” United States v. Verdugo-Urquidez, 494

U.S. 259, 265 (1990); see Dist. of Columbia. v. Heller, 554

U.S. 570, 580 (2008) (noting “provisions of the Constitution

that mention ‘the people,’” “refer[] to all members of the

political community”). Only as an alien “increases his identity

with our society” do the “generous and ascending scale of

rights” spring into action, Verdugo-Urquidez, 494 U.S. at 269

(quoting Johnson v. Eisentrager, 339 U.S. 763, 770 (1950)),

some of which include the “constitutional provisions [that]

extend beyond the citizenry,” id. at 269. But neither “lawful

but involuntary” entry, nor mere physical entry without

“significant voluntary connection[s],” suffice for an alien to

become part of “the people.” Id. at 271.

This distinction makes sense, as it has long been

accepted that a sovereign’s laws, including restrictions and

31

The use of “the people” elsewhere in the Constitution

aligns with the political class. See U.S. Const. art. I, § 2, cl. 1

(“The House of Representatives shall be composed of

Members chosen every second Year by the People of the

several States, and the Electors in each State shall have the

Qualifications requisite for Electors of the most numerous

Branch of the State Legislature.”); id. amend. XVII (“The

Senate of the United States shall be composed of two Senators

from each State, elected by the people thereof, for six years;

and each Senator shall have one vote. . . . Provided, [t]hat the

legislature of any State may empower the executive thereof to

make temporary appointments until the people fill the

vacancies by election as the legislature may direct.”).

29

privileges, extend only to “persons and things within its own

territory according to its own sovereign will and public

policy.” Joseph Story, Commentaries on the Conflict of Laws,

Foreign and Domestic § 22 (Boston, Hilliard, Gray, and

Company 1834). This understanding was viewed as “inherent

in nature, for it was derived from an underlying assumption

about the essential purpose of government, protection, which

in turn was derived from ideas about the equal freedom of

human beings in the state of nature.” Phillip Hamburger,

Beyond Protection, 109 Colum. L. Rev. 1823, 1840 (2009).

Thus, “an individual ha[s] a right to the protection of

government and its laws only by virtue of his allegiance.” Id.

at 1838.

Eighteenth-century thinkers recognized this principle as

following the nature of things, making protectionism “a truism

of the common law.” Id. “[F]ounded in reason and the nature

of government,” “[a]llegiance is the tie, or ligamen, which

binds the subject to the king, in return for that protection which

the king affords the subject.” 1 Blackstone, Commentaries

*366. But an alien falls into an “obvious division,” id., because

he owes only a “[l]ocal allegiance” to the Sovereign, id. at

*370, a temporary affinity “for so long time as he continues

within the king’s dominion and protection . . . and it ceases the

instant such stranger transfers himself from this kingdom to

another,” id. Put differently, “when an alien that is in amity

cometh into England, . . . he is within the King’s protection;

therefore so long as he is here, he oweth unto the King a local

obedience or ligeance, for that the one (as it hath been said)

draweth the other.” Calvin’s Case (1608) 77 Eng. Rep. 377,

30

383; 7 Co. Rep. 1 a, 5 b.32 Thus, throughout the English history,

“no Lawyer hath ever yet denied” that “Protection and

Allegiance are reciprocal obligations,” for “[t]hey are founded

in Reason, Equity, and good Policy.” Sir Michael Foster,

Discourse on High Treason, in A Report of Some Proceedings

on the Commission of Oyer and Terminer 183, 188 (Oxford,

Clarendon Press 1762) (1714).

The Founders followed this understanding of the

reciprocal relationship between allegiance and protection.

Though they sometimes split over whether the principle of

protection entitled aliens to the benefit of all constitutional

rights, as contested during the debates over the Alien and

Sedition Acts,33 all acknowledged that some relationship

between the Sovereign and the alien was essential. Leading the

Democratic-Republicans, James Madison contended “[a]liens

are not more parties to the laws than they are parties to the

Constitution; yet it will not be disputed that, as they owe, on

the one hand, a temporary obedience, they are entitled, in

return, to their protection and advantage.” 4 The Debates in the

Several State Conventions on the Adoption of the Federal

Constitution 556 (Jonathan Elliot ed., Philadelphia, J.B.

32

See also 77 Eng. Rep. at 392; 7 Co. Rep. at 13 a (citing

Aristotle to explain that allegiance to the sovereign was

compelled by the natural law).

33

See Gerald L. Neuman, Whose Constitution?, 100

Yale L.J. 909, 927–38 (1991); J. Andrew Kent, A Textual and

Historical Case Against A Global Constitution, 95 Geo. L.J.

463, 531 (2007) (explaining “the poles of debate in the 1790s”

with “Federalists denying that any aliens had constitutional

rights” and “Republicans arguing that friendly aliens resident

in the United States had constitutional rights”).

31

Lippincott Company 2d ed. 1836). And even the

Federalists—who reasoned that because aliens were not part of

the people for whom the Constitution was created and thus

have no rights thereunder—still recognized the protection

principle. See id. at 534 (explaining that the Alien and Sedition

Acts “respect[] a description of persons whose rights were not

particularly contemplated in the Constitution of the United

States,” so they “are entitled only to a temporary protection

while they yield a temporary allegiance—a protection which

ought to be withdrawn whenever they become ‘dangerous to

the public safety’”). Thus, despite disagreement about what

laws aliens were entitled to the protection of, the principle of

protection was universally accepted. And early American law

adhered to this understanding.34

This history, and the tradition it follows, reveals three

insights. First, the protection principle confers only a

temporary license to aliens—a discretionary privilege to be

within the land—so it cannot guarantee a right to indefinitely

remain. See Hamburger, supra, at 1844–45 (explaining that

allegiance and protection are “reciprocal Ties, each equally

depending upon the other, and liable to be dissolved by the

other’s being refused or withdrawn” (quoting N.J. Const. of

34

See, e.g., 33 Annals of Cong. 1042 (1819) (explaining

that men who “were not our citizens” and were outside “the

territorial limits of the United States” “owed us no allegiance,

and were entitled to no protection”); Story, supra, at § 7

(“[T]he laws of one country . . . can bind only its own subjects,

and others, who are within its jurisdictional limits; and the

latter only while they remain there.”); Eisentrager, 339 U.S. at

769 (“Citizenship as a head of jurisdiction and a ground of

protection was old when Paul invoked it in his appeal to

Caesar.”).

32

1776 pmbl.; N.Y. Const. of 1777 pmbl.)). That is because

“[n]atural allegiance is therefore perpetual, and local

temporary only.” 1 Blackstone, Commentaries *370.

Second, the relationship between the alien and the

Sovereign can be terminated by “the express will of the

sovereign power to order him away.” Clarke v. Morey, 10

Johns. 69, 72 (N.Y. 1813); see Harisiades, 342 U.S. at 587

(“The Government’s power to terminate its hospitality has

been asserted and sustained by this Court since the question

first arose.”); Sir Alexander Cockburn, Nationality Or the Law

Relating to Subjects and Aliens 138–39 (London, William

Ridgway 1869) (“[B]y the law of many countries a power is

vested in the Government, either for cause, or at discretion, to

direct the removal of the alien.”). Although “a vested right is

to be taken from no individual without a solemn trial, . . . the

right of remaining in our country is vested in no alien; he enters

and remains by the courtesy of the sovereign power, and that

courtesy may at pleasure be withdrawn.” The Address of the

Minority in the Virginia Legislature to the People of that State;

containing a Vindication of the Constitutionality of the Alien

and Sedition Laws 9–10 (1799).35 So “even as to alien friends,

one who is ordered away or is present without permission

would be outside the public protection.” Ilan Wurman,

Jurisdiction and Citizenship 44 (May 22, 2025) (Minnesota

Legal Studies Research Paper No. 25-27) (on file with Social

Science Research Network).

35

An address attributed to General Henry Lee and John

Marshall before his time as Chief Justice. See Neuman, supra,

at 930.

33

Third, a temporary license does not confer aliens access

to all rights enjoyed by citizens. See Hamburger, supra, at

1976–77 (explaining that aliens who enter lawfully “have a

right to the same protection as citizens, even if not the same

substantive rights as citizens”). “[T]he sovereign is supposed

to allow [an alien] access only upon this tacit condition, that he

be subject to the laws” limited to “the general laws made to

maintain good order, and which have no relation to the title of

citizen or of subject of the state.” Emmerich de Vattel, The

Laws of Nations § 101, at 172 (Joseph Chitty ed., Philadelphia,

R. & J. W. Johnson 1852) (1758). So “submitting to the laws

of any country, living quietly, and enjoying privileges and

protection under them, makes not a man a member of that

society.” John Locke, The Second Treatise of Civil

Government § 122, at 61 (J.W. Gough ed., Basil Blackwell

1948) (1690). Which explains why aliens had “circumscribed”

rights36 such as a prohibition on political engagement37 and

property ownership.38 The same thinking animated the

36

1 Blackstone, Commentaries *371.

37

Cockburn, supra, at 138 (explaining the protection

principle does not extend to “the exercise of political rights”

which “is reserved to such as are members of the community,

to the exclusion of those, who, though residing within its

territory belong to another State which may have different or

perhaps hostile interests to promote”).

38

Id. at 139–40 (tracing the prohibition on aliens

owning property back to the days of King Alfred); 1

Blackstone, Commentaries *372 (explaining an alien “may

purchase lands,” “but not for his own use” because “[i]f an

alien could acquire a permanent property in lands, he must own

an allegiance, equally permanent with that property, to the king

34

Federalists’ position that aliens cannot claim the Constitution’s

protection because, although the protection principle applies,

the alien is not party to the Constitution. See Alexander

Addison, On the Alien Act (Washington, John Colerick 1799)

(1798), reprinted in Univ. of Mich. Libr. Digit. Collections 11,

https://perma.cc/4GLT-2GWU (last visited Apr. 30, 2025).39

All told, the protection principle establishes that the

Sovereign does not owe all aliens within its borders the same

obligation it does its citizens. Thus, Congress may make rules

for aliens that would be unacceptable if applied to citizens. See

Fiallo v. Bell, 430 U.S. 787, 792 (1977).40

of England, which would probably be inconsistent with that

which he owes to his own natural liege lord”).

39

This understanding accords with the Court’s

recognition that “the alien in several respects stands on equal

footing with citizens, but in others has never been conceded

legal parity with the citizen.” Harisiades, 342 U.S. at 586. For

example, the alien is given the same “measure of economic

opportunity,” ability to “invoke the writ of habeas corpus to

protect his personal liberty,” “protections of the Fifth and Sixth

Amendments” in criminal proceedings, and right to “just

compensation” for a taking that citizens receive. Id. at 586 n.9.

But unlike citizens, an alien “cannot stand for election to many

public offices,” has no right to vote, does not receive an

unlimited “right to travel temporarily outside the United

States,” and must “prove ‘his right to enter or remain.’” Id. at

586 n.10 (quoting 8 U.S.C. § 155(a) (repealed 1952)).

40

Arguments to the contrary violate not only precedent

but the political branches’ plenary power over immigration.

The Court has upheld removals based on determinations that

an alien’s speech or association demonstrated undesirability

35

Under the best understanding of the First Amendment,

Qatanani is not part of “the people” whom the First

Amendment restricts government action against, and he cannot

claim its protection. At the time of the BIA’s decision,

sufficient to terminate the privilege of presence. See

Harisiades, 342 U.S. at 581–83, 591–92 (rejecting the

argument that the First Amendment barred removal of three

based on their associations with the Communist Party);

Kleindienst v. Mandel, 408 U.S. 753, 756–69 (1972)

(upholding an alien’s exclusion based on his speech the

Sovereign deemed undesirable, regardless of citizens’ First

Amendment rights to hear that alien’s speech); Reno, 525 U.S.

at 491–92 (“When an alien’s continuing presence in this

country is in violation of the immigration laws, the

Government does not offend the Constitution by deporting him

for the additional reason that it believes him to be a member of

an organization that supports terrorist activity.”). And proper

respect for the political branches’ plenary power over

immigration has repeatedly moved the courts against second

guessing their judgment. See, e.g., Reno, 525 U.S. at 490–92

(declining to enjoin deportation proceedings based on the

aliens’ claim that they were selectively targeted for deportation

because of their affiliations); Galvan v. Press, 347 U.S. 522,

523, 530–32 (1954) (upholding constitutionality of deporting

an alien based on his associations with the Communist Party

despite First Amendment concerns); Kleindienst, 408 U.S. at

769–70 (courts may neither “look behind” the “facially

legitimate and bona fide” denial of immigration waiver, nor

weigh it against asserted “First Amendment interests”); United

States v. Aguilar, 883 F.2d 662, 695 (9th Cir. 1989) (rejecting

an alien’s claims under the First Amendment in light of “the

government’s overriding interest in policing its borders”).

36

Qatanani was not subject to the protection principle. He

entered the country with permission via a non-immigrant H1-B

visa to work for a limited time. During those three years,

Qatanani was within the country with the express permission

of the Sovereign and owed temporary allegiance in exchange

for a temporary license. But once the visa expired, so did the

protection principle. If not then, surely when USCIS denied his

initial status adjustment application or when DHS initiated

removal proceedings against him. No matter what date, the

Executive had removed authorization for Qatanani to remain

many years before he publicly called for a new intifada.

C.

Even if Qatanani were afforded First Amendment

protection as an unauthorized alien (or even an LPR), denial

(or recission) of an immigration privilege, to which he has no

right or entitlement, is not a punitive or adverse action that

could trigger First Amendment restrictions on government

action. Through the Constitution, “[t]he people of the United

States . . . limit[ed] the power of their government over

themselves; but la[id] no restraint on the power of their

government over aliens.” Addison, supra, at 11. So until an

alien “become[s] [a] citizen[], they are in the power of the

ordinary legislature,” which “may receive them, and admit

them to become citizens; or may reject them, or remove them,

before they become citizens.” Id. Thus, when aliens “come

here, they know, that they come at the discretion of the

ordinary legislature . . . and have no reason to complain, if this

legislature remove them, before they become citizens.” Id. Put

simply, an alien within our Nation as a matter of administrative

grace has no right to remain.

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That is why “[d]eportation is not a criminal proceeding

and has never been held to be punishment.” Carlson v. Landon,

342 U.S. 524, 537 (1952). Rather, “[a] deportation proceeding

is a purely civil action to determine eligibility to remain in this

country, not to punish an unlawful entry, though entering or

remaining unlawfully in this country is itself a crime.” Immigr.

& Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032,

1038 (1984). So “[w]hile the consequences of deportation may

assuredly be grave, they are imposed not as a punishment” but

“to bring to an end an ongoing violation of United States law.”

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

491 (1999).

The same is true for Executive determinations denying

status adjustments because the legislature has not created a

statutory entitlement to an adjustment of status under

section 1255. To the contrary, Congress explicitly stated that

the privilege of a status adjustment is purely discretionary and

should be determined by the Executive. § 1255(a); Elkins, 435

U.S. at 667; Ameeriar, 438 F.2d at 1030. Immigration benefits

differ from other benefits the Executive offers. True, neither

Congress nor the Executive may condition the receipt of a

government benefit in a manner that infringes constitutional

rights. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

570 U.S. 205, 213–14 (2013); Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47, 59 (2006). This principle

has been applied to benefits such as “tax exemptions,”

“unemployment benefits,” “welfare payments,” and “denials

of public employment.” Perry v. Sindermann, 408 U.S. 593,

597 (1972). But legal status to enter or remain in our Nation is

not an administrative benefit held out to all aliens who meet a

strict set of qualifications. No. It is the highest privilege the

political branches may grant to those individuals deemed, in

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their discretion, deserving of the opportunity to work towards

the common good of our republic.

By design then, immigration determinations, without

more, cannot serve as adverse actions against an alien, making

appeals to First Amendment limitations inapposite.

* * *

Mohammad Qatanani’s case carries a simple caution:

courts cannot confuse the political privilege that permits an

alien’s presence with an unrestricted right to indefinitely

remain. That understanding spans from the earliest days of the

republic to the laws Congress created to control immigration

today. The uncertainty and instability that comes from residing

in a foreign land is neither new nor unique to America. It is

simply the cost immigrants in all places and all times have

counted worth spending in deciding to leave their home

country to seek a better life in another. There is nothing sinister

in acknowledging that truth, nor is it any barrier to the promise

that “[t]he bosom of America is open to receive not only the

opulent & respectable Stranger, but the oppressed &

persecuted of all Nations & Religions; whom we shall

wellcome to a participation of all our rights & previleges if by

decency & propriety of conduct they appear to merit the

enjoyment.” Letter from George Washington to Joshua

Holmes (Dec. 2, 1783).

Seeing no constitutional claim or legal question that

warrants granting the petition, and mindful we lack jurisdiction

to review the Executive’s discretionary decision not to grant

Qatanani a status adjustment, I would deny the petition and so

respectfully dissent.

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