Samirah v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1889

S ABRI I. S AMIRAH,

Plaintiff-Appellee,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 1298—James B. Moran, Judge.

A RGUED S EPTEMBER 8, 2010—D ECIDED D ECEMBER 3, 2010

Before P OSNER, M ANION, and H AMILTON, Circuit Judges.

P OSNER, Circuit Judge. In the more than seven years

that have elapsed since our first decision in this

seemingly interminable immigration case, Samirah v.

O’Connell, 335 F.3d 545 (7th Cir. 2003), the issues pre-

sented to us have changed, requiring us to conduct a

fresh analysis. The government insists that our first

decision, reversing the grant of a preliminary injunction

2 No. 08-1889

to the plaintiff, is dispositive of the present appeal. That

isn’t true. The issues are different. The central issue in

the first appeal—the reviewability of revocation of “ad-

vance parole”—has dropped out, and the relief sought

in the present appeal (mandamus) is different from

that sought unsuccessfully in the prior one (habeas cor-

pus). We’ll see that an immigration regulation entitled

the plaintiff, upon the revocation of his advance parole,

to the restoration of his pre-parole status, that of an

applicant to adjust his status from nonlawful resident to

lawful resident. But to pursue his application, he had, by

law, to be physically present in the United States. The

government, in violation of the regulation, refused to

let him return to the United States. He is entitled to a

writ of mandamus directing the Attorney General to

enable him to return. That is the case in a nutshell,

but the complexity of immigration law will require an

unavoidably tedious elaboration of our analysis. The

issues presented by this appeal have not been briefed

and argued as carefully as we would like, perhaps be-

cause of that complexity; but we think we can see our

way clear to a sound result.

The plaintiff, a citizen of Jordan, first came to the

United States 23 years ago on a student visa. Although

the visa expired at some point, he remained in the

United States. He didn’t become a lawful resident, but

he obtained a Ph.D., married, had three children, was

continuously employed, and had never been placed in

deportation (now called removal) proceedings. Twice he

applied to adjust his status to that of a lawful resident

and both times he was turned down, the first time

No. 08-1889 3

because he had accepted employment without the immi-

gration service’s authorization and the second time be-

cause a religious-worker visa obtained on his behalf by

the American Middle Eastern League was determined to

be invalid. In the course of the second rejection the im-

migration service cited two media reports which sug-

gested that the plaintiff was affiliated with political

groups that either supported Hamas or endorsed its

views. The government has not repeated these shadowy

accusations in the present proceeding, and the plaintiff

has never been placed in removal proceedings.

In 2002, the year after the denial of his second applica-

tion for adjustment of status, the plaintiff learned that

his mother, who lives in Jordan, was ill. He hadn’t seen

her for years and wanted to visit her. But he also wanted

to preserve the opportunity to adjust his status, so he

filed a third application and at the same time asked

the immigration authorities for what is called “advance

parole.” Advance parole authorizes an applicant for

adjustment of status to travel outside the United States

without prejudice to his application, and to return—even

though he isn’t a lawful resident and doesn’t have a

visa—to prosecute it. 8 C.F.R. § 212.5(f); Brito v. Mukasey,

521 F.3d 160, 162 n. 1 (2d Cir. 2008). The regulation that

authorizes parole (and does not distinguish between

advance parole, which lets an alien leave the country

without jeopardizing his immigration status, and parole

granted to an alien outside the country to allow him

to enter without his thereby obtaining the status of a

lawfully admitted alien) also provides that “upon accom-

plishment of the purpose for which parole was auth-

4 No. 08-1889

orized or when in the opinion of one of [designated]

officials . . . neither humanitarian reasons nor public

benefit warrants the continued presence of the alien in

the United States, parole shall be terminated upon

written notice to the alien and he or she shall be restored

to the status that he or she had at the time of parole.”

8 C.F.R. § 212.5(e)(2)(i). The meaning of “restored to the

status that he or she had at the time of parole” is the

central issue presented by the appeal.

In December 2002 the immigration service granted

the plaintiff advance parole (it didn’t have to, but it did),

and having done so sent him a travel document (Form I-

512L) authorizing “a transportation line to accept the

named bearer on board for travel to the United States

without liability . . . for bringing an alien who does not

have a visa.” The form, which thus is a substitute for a

visa, goes on to explain that its purpose is to enable

the bearer to return to the United States “to await the

adjudication of his application for adjustment of status.”

An application for adjustment of status cannot be filed

by someone who is not in the United States, 8 U.S.C.

§ 1255(i); 8 C.F.R. § 245.1(a), and the application is deemed

abandoned if the applicant leaves the country with-

out having been granted advance parole. 8 C.F.R.

§§ 245.2(a)(4)(ii)(A)-(B).

Nevertheless, when, his visit completed, the plaintiff

tried to return to the United States, the immigration

service informed him that his advance parole had

been revoked, and it refused to let him enter the

country despite the fact that he was carrying his unex-

No. 08-1889 5

pired Form I-512L. Although the form does say that the

bearer may be denied reentry to the United States if he

is “inadmissible,” 8 U.S.C. § 1182, the plaintiff has

never been determined to be inadmissible.

The government argues that the revocation of his ad-

vance parole made him inadmissible because it left him

without an entry document, as required by 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) for admission to the United States.

The government is wrong. Form I-512L is a travel docu-

ment, a substitute for a visa (it says so), the purpose

of which is to tell immigration officers that the bearer

is entitled to enter the United States. The government

argues that the alien needs a fresh grant of parole, after

his advance parole terminates, to be readmitted. To

require the alien to obtain a fresh grant of parole would

contradict both the regulation and the form—the form

because it is the equivalent of a visa, and the regulation

because it requires that the bearer’s status as of when

advance parole was granted be restored when the

parole ends. That status includes being present in the

United States. One of the statutory qualifications for an

adjustment of status that is applicable to the class of

aliens to which the plaintiff belongs is, as we said, that

the alien be in the United States. The status the plaintiff

enjoyed before he received advance parole, and hence

the status he reacquired by virtue of the regulation

upon the termination of his advance parole, was that of

an alien eligible for an adjustment of status and there-

fore, among other things, physically present in the

United States. Restoration of his status thus requires his

return to this country. So if the revocation of advance

6 No. 08-1889

parole canceled the plaintiff’s Form I-512L travel docu-

ment, the government was required—subject to excep-

tions discussed later in this opinion—to issue him

another one, or admit him without documentation, in

order to honor the promise in the parole regulation to

restore an alien whose parole is canceled to his prior status.

It is true that Palmer v. INS, 4 F.3d 482, 484 (7th Cir.

1993), says that “an alien seeking to adjust his status to

that of a lawful permanent resident is assimilated to the

position of an applicant for entry into the United States.”

But that was said in a case in which the alien was in

the United States and so could pursue his application

for adjustment of status. When the applicant is outside

the United States, the restoration of his status as an ap-

plicant for adjustment of entry requires that he be

allowed to return to this country. Of course, so far as

entitlement to such an adjustment is concerned, the

applicant has no greater rights than that of an applicant

who is already in the United States.

Had the plaintiff, instead of trying to fly back to the

United States, flown to Canada or Mexico and then smug-

gled himself into this country without being detected

and apprehended, he would have been subject to

removal like any other nonlawful resident. But that would

not have prevented him from pressing his application

for adjustment of status. The status sought is that of

lawful resident; the seeker by definition is not a lawful

resident. Not being a lawful resident of the United States,

the plaintiff was subject to removal before he left the

country on advance parole. Yet no such proceeding had

No. 08-1889 7

ever been brought against him, or, so far as we know,

had ever been contemplated. By whatever means or

route he got back to the United States, even if it was in a

coffin in the cargo hold of an airliner, disguised as Count

Dracula (cf. Love at First Bite), he could have continued

to seek to adjust his status to that of a lawful resident,

until and unless he was removed.

And likewise if the plaintiff had flown directly to the

United States from Jordan. But his flight happened to

make a stop at Ireland’s Shannon Airport. Congress

has authorized the establishment of U.S. immigration

checkpoints at foreign airports in order to prevent unau-

thorized persons from flying into the United States,

8 U.S.C. § 1225a; 8 C.F.R. § 235.5; A. James Vazquez-Azpiri

& Daniel C. Horne, “The Doorkeeper of Homeland Secu-

rity: Proposals for the Visa Waiver Program,” 16 Stan. L. &

Policy Rev. 513, 545-47 (2005), and one of these checkpoints

is at Shannon. (There was no checkpoint at Jordan’s

international airport when the plaintiff flew to Shannon.)

Upon entering the Shannon checkpoint the plaintiff was

handed a letter from a U.S. immigration official in

Chicago informing him that his advance parole had

been revoked because he was a “security risk” and he

would not be permitted to enter the United States. He

flew back to Jordan and has not returned to the United

States since; we assume that either before or after being

turned away at Shannon he was placed on the U.S. “no

fly” list and is thus unable to fly to the United States

from any airport. The government has made clear its

unwillingness to issue him a visa or other entry document,

contends that he has no legal remedy against permanent

8 No. 08-1889

exclusion from the United States, and deems his applica-

tion for adjustment of status abandoned because he is

outside the country.

Revocation of parole, because it is an exercise of discre-

tionary authority by the immigration authorities, 8 U.S.C.

§ 1182(d)(5)(A), is not judicially reviewable, as we held

in our first decision. Samirah v. O’Connell, supra, 335 F.3d

at 548-49; see 8 U.S.C. § 1252(a)(2)(B)(ii); Kucana v. Holder,

130 S. Ct. 827, 836-37 (2010). What we have now to

decide is the consequence of revocation. That was not

an issue in the previous appeal. The plaintiff had raised

it in the district court, but it was not discussed or

resolved in our opinion, and so in the further pro-

ceedings that followed our reversal of the grant of a

preliminary injunction the district court assumed not

unreasonably that the issue remained for resolution.

Recall that the parole regulation (8 C.F.R. § 212.5(c))

states that upon revocation of parole the alien is restored

to his status before he was paroled. It’s true that it also

says that parole shall be revoked “upon accomplishment

of the purpose for which parole was authorized or when

in the opinion of one of [designated] officials . . . neither

humanitarian reasons nor public benefit warrants the

continued presence of the alien in the United States.” But

to read this to mean that when parole is revoked the

alien is excluded would make the regulation incoherent,

because the alien’s pre-existing status as an applicant

for an adjustment of status, which termination of parole

restores, includes presence in the United States. The

meaning rather is that someone whose parole is revoked

No. 08-1889 9

has no right to remain in the United States, as he is not

a lawful resident and is subject therefore to removal,

but that if he had applied for an adjustment of status

when he was here he can return to the United States so

that he can pursue his application. What happens to him

after he returns—whether for example he is placed in

removal proceedings, and perhaps removed before his

application for adjustment of status is acted on—is not

determined by his having been restored to his status as

a seeker of an adjustment of status. This interpretation is

confirmed by Form I-512L, which tells immigration

officers to readmit the bearer of the form even though

he has no visa.

The government’s lawyer told us at argument that

being present in the United States and seeking an ad-

justment of status do not constitute a “status” within the

meaning of the regulation. We don’t agree, as we ex-

plained earlier in distinguishing this case from Palmer.

The statute governing adjustment of status sets forth in

detail who may seek to adjust his status to that of an

alien lawfully admitted for permanent residence. It

defines, in other words, the status seeker’s status.

Circumstances might, despite the regulation, justify

the government in refusing to allow the return of

someone whose advance parole had been revoked; for

remember that Form I-512L warns the bearer that he

won’t be readmitted if he’s “inadmissible.” See, e.g., In re

G-A-C-, 22 I. & N. Dec. 83, 88-89 (BIA 1998) (en banc).

The only ground of inadmissibility mentioned in the

Form I-512 that was given to the plaintiff—8 U.S.C.

10 No. 08-1889

§ 1182(a)(9)(B)(i)—appears (as implied by the section’s

caption) to affect only aliens who have previously been

removed from the United States, and the plaintiff

hadn’t been; in any event the government has not

argued that he was inadmissible under that section.

The statute governing admissibility also authorizes the

exclusion of aliens who are believed to endanger

national security, 8 U.S.C. § 1182(a)(3), and we shall

assume that this provision applies to returning parolees

even though it’s not mentioned in Form I-512L. Yet

even though the letter from the immigration official in

Chicago said that the plaintiff was being barred from

returning to the United States because he was a “security

risk,” the government does not invoke section 1182(a)(3)

in its appeal and we can’t determine from the record

whether the plaintiff is a security risk in a relevant sense.

The government will not disclose the basis of its

supposal that he is one or even the criteria that the im-

migration official who declared the plaintiff a security

risk used in making that determination. And as far as

we know there was no internal review in the Justice

Department or the Department of Homeland Security

of the determination; it was made by DHS and we

don’t even know whether the Justice Department, while

representing DHS in this litigation, agrees with it.

Moreover, except in the case of an “arriving alien”—and

for purposes of removal an alien granted advance parole

is not deemed to be one upon his return to the United

States, see 8 C.F.R. § 1.1(q)—inadmissibility must be

determined by an immigration judge, rather than by an

No. 08-1889 11

immigration officer at a checkpoint or port of entry.

8 U.S.C. § 1229a(a). Of course the plaintiff has not re-

turned to the United States, but the point is only that,

should he return, he could not be denied admission

without a determination by an immigration judge that

he was inadmissible. This point is important for two

reasons: an immigration judge is a judicial officer; and

the fact that no immigration judge was involved in the

decision to exclude plaintiff from the United States

shows that the ground for excluding him was not that

he was inadmissible.

Although the plaintiff—a highly educated, steadily

employed, long-time resident in the United States,

whose children are U.S. citizens—would ordinarily be

considered a good candidate to be allowed to adjust his

status to that of a lawful permanent resident, Elkins v.

Moreno, 435 U.S. 647, 667-68 (1978); Patel v. INS, 738

F.2d 239, 242-43 (7th Cir. 1984); In re Hashmi, 24 I. & N.

Dec. 785, 793 (BIA 2009); U.S.C.I.S. Adjudicator’s Field

Manual, § 23.2(d) (updated through Oct. 6, 2010), the

denial of his two previous applications, and the possible

(though only, as far as we know, a rumored) link to

Hamas, suggests not. But if not—if indeed he’s a threat

to the security of the United States—he can be subjected

to removal or perhaps even to criminal proceedings

upon his return to this country and can be detained until

those proceedings are completed. Advance parole en-

titled him to return to the United States for the sole pur-

pose of pressing his application for adjustment of status; it

gave him no greater rights than if he’d never left. Barney

v. Rogers, 83 F.3d 318, 321 (9th Cir. 1996); see also Assa’ad

12 No. 08-1889

v. U.S. Attorney General, 332 F.3d 1321, 1326-27 (11th Cir.

2003). Maybe he can be declared inadmissible; but that

hasn’t been done, as we said. By refusing to grant him

a visa, the government is arbitrarily preventing him

from exercising the right granted to him by the advance-

parole regulation.

Don’t be fooled by the word “parole.” In normal usage

it means you’re tentatively free but if you violate the

conditions of your freedom you’ll be sent back to prison.

When “advance parole” in the immigration setting is

revoked, your status is restored and you’re just sent

back to the United States, which we prefer to think of as

the land of liberty rather than as a prison. Advance

parole is the right to leave the United States without (in

a case such as this) abandoning your right to seek ad-

justment of status upon your return. Revocation of

advance parole terminates your “liberty” to be footloose

abroad and requires you to rush back here to preserve

your application.

The government makes the startling argument that

“advance parole” is not “parole.” If it is not parole, what

is it? If Form I-512L is not a travel document entitling

an alien granted advance parole to return to the United

States (unless he is “inadmissible,” which the plaintiff

was not), what is it? The parole regulation describes

advance parole as “parole,” 8 C.F.R. § 212.5(f), and the

only statutory authority for granting advance parole is

found in the statutory provision that authorizes the

grant of parole. 8 U.S.C. § 1182(d)(5)(A). If advance

parole isn’t parole, the parole regulation doesn’t mean

No. 08-1889 13

what it says and the Attorney General has no authority

to grant advance parole. Advance parole was held in

Succar v. Ashcroft, 394 F.3d 8, 15 n. 7 (1st Cir. 2005), to be

one of several types of immigration parole.

The government’s argument is based rather des-

perately on a footnote in a request for comment on a

proposed rule. Eligibility of Arriving Aliens in Removal

Proceedings, 71 Fed. Reg. 27,585-01, 27,586 n. 1 (May 12,

2006). The footnote states that “ ‘advance parole’ is the

determination of an appropriate DHS officer that DHS

should agree to the exercise of the parole authority

under Section 212(d)(5)(A) of the Act before the alien’s

actual arrival at a port-of-entry. The actual decision to

parole, however, is made at the port-of-entry. Since any

grant of parole may be revoked, 8 C.F.R. § 212.5(e),

a decision authorizing advance parole does not

preclude denying parole when the alien actually arrives

at a port-of-entry.” A request for comments is not a

regulation; the request to which the footnote was ap-

pended was only peripherally concerned with parole

(the aim of the proposed rule was to resolve a circuit

split over whether an immigrant placed in removal pro-

ceedings could apply for adjustment of status); and the

footnote is inconsistent with the parole regulation,

which states that “when parole is authorized for an alien

who will travel to the United States without a visa, the

alien shall be issued Form I-512,” 8 C.F.R. § 212.5(f)—the

advance-parole travel document.

To support its contention that advance parole is not

parole but some other animal in the immigration

14 No. 08-1889

bestiary, the government cites Barney v. Rogers, supra, and

In re G-A-C-, supra. If the government were correct, these

cases would be inconsistent with the First Circuit’s deci-

sion in Succar, which is explicit that advance parole is a

form of parole. But the government is misreading them.

Barney v. Rogers says that advance parole gives an alien

a “right to return for the purpose of completing her

Adjustment Application”—precisely what the plaintiff

is seeking. 83 F.3d at 321. And in like vein the Board of

Immigration Appeals, in In re G-A-C-, supra, described

advance parole as “a mechanism by which a district

director can, as a humanitarian measure, advise an

alien who is in this country, but who knows or fears that

he will be inadmissible if he leaves and tries to return,

that he can leave with assurance that he will be paroled

back into the United States upon return, under prescribed

conditions, if he cannot establish that he is admissible

at that time” (emphasis added). 22 I. & N. Dec. at 88. The

Board went on to say that “the term ‘advance parole’ is

something of a misnomer”—that really it means “advance

authorization of parole”: “the alien is advised in advance

of a departure that, if he meets certain conditions, he

will be paroled into the United States when he returns.” Id.

at 88 n. 3. The plaintiff in this case met those conditions,

which are set forth in Form I-512L. Another case,

Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir. 2007),

similarly describes advance parole as “a practice whereby

the government decides in advance of an alien’s arrival

that the alien will be paroled into the United States when

he arrives at a port-of-entry”—again the right that the

plaintiff in this case is claiming.

No. 08-1889 15

So whether “advance parole” is “parole” turns out to be

a quibble. If it is not a form of “parole,” it is a promise of

parole—that is, a promise of permission to reenter the

United States so that the parolee can press his applica-

tion for adjustment of status.

Moreover, it is important in interpreting judicial opin-

ions, as in interpreting other documents, to read words

in context. Each of the cases on which the govern-

ment relies involved an alien who had been granted

advance parole, had left the country, and had been read-

mitted pursuant to a new grant of parole. Later the

alien’s status became an issue and was held to be his

status when paroled into the country, not when allowed

to leave under a grant of advance parole. All that the

cases stand for, in short, is that when an alien who had

been granted advance parole is paroled back into the

country, that second grant supersedes the grant of ad-

vance parole so far as determining the alien’s status “at

the time he was paroled” is concerned.

Neither case addresses the consequence of a revocation

of advance parole while the alien is out of the coun-

try. They thus do not bear on the right of an alien like the

plaintiff to be restored to his status at the time of the only

parole that he had ever been granted—advance parole.

Curiously, the parole statute says that after revocation

of advance parole “the alien shall forthwith return or be

returned to the custody from which he was paroled

and thereafter his case shall continue to be dealt with in

the same manner as that of any other applicant for ad-

mission to the United States.” 8 U.S.C. § 1182(d)(5)(A).

16 No. 08-1889

Being an applicant for admission to the United States is

a different status from being an applicant for adjustment

of status, the status the plaintiff enjoyed when he left

the United States on parole. And he was never in cus-

tody. Probably all that the quoted language means is that

an alien derives no superior status, by virtue of having

obtained advance parole, when parole is revoked. That

certainly is true, but the plaintiff is not seeking a better

status than he had before it was granted.

So: the “restoration of status” regulation is unambig-

uous; our interpretation of it as entitling the parolee,

upon revocation of his advance parole, to return to the

United States to press his application for adjustment of

status is confirmed by Form I-512L; the government does

not suggest that the regulation (its own regulation)

is invalid; and the government has violated the regula-

tion to the plaintiff’s detriment. What next?

Nothing next, says the government; for, whatever the

apparent merits of this appeal, our decision turning

down the previous appeal terminated the entire litiga-

tion once and for all in sweeping language: “Section

1252(a)(2)(B)(ii) bars jurisdiction over the rest of

Samirah’s action.” 335 F.3d at 552. But section

1252(a)(2)(B)(ii) is just the section that makes the grant,

denial, and—of especial significance in this case—revoca-

tion of parole nonreviewable. That is a given in this case.

The question is what happens after revocation—has

the plaintiff a right to return to the United States to

press his application for adjustment of status? Section

1252(a)(2)(B)(ii) does not answer that question and it was

not a question addressed in our previous decision.

No. 08-1889 17

And what is “the rest of Samirah’s action” that we said

in our first opinion was barred? The only “action” before

us in the first appeal was the plaintiff’s quest for an

injunction against the revocation of his advance parole,

a quest that he based on a claim to be entitled to

habeas corpus relief. We held that he had no right to

obtain habeas corpus relief. 335 F.3d at 549-52. That

ruling was right then and is right now. Wales v. Whitney,

114 U.S. 564, 571 (1885); Terrado v. Moyer, 820 F.2d 920, 921-

22 (7th Cir. 1987) (per curiam); Patel v. U.S. Attorney Gen-

eral, 334 F.3d 1259, 1263 (11th Cir. 2003). Habeas corpus

is a remedy for people in custody; exclusion from the

United States is not custody. We didn’t address the

remedies that the plaintiff might have, after his chal-

lenge to the revocation of his advance parole failed, for

a violation of the regulation specifying the consequences

of revocation. We could not have meant to extinguish a

possible remedy by way of mandamus, because to do

so would have overruled (without circulation of the

opinion to the full court in advance of publication, as

required by 7th Cir. R. 40(e)) our decision in Iddir v. INS,

301 F.3d 492 (7th Cir. 2002), which had held that

section 1252(a)(2)(B)(ii) does not bar an alien from

seeking mandamus.

Nor is it true that our previous decision, by reversing

the district court without stating that the case was being

remanded, ended the litigation, foreclosing the further

proceedings in the district court that led to the grant

of relief that the government is now contesting. The

prior appeal, because it was from the grant of a prelimi-

nary injunction, was interlocutory. It invoked our appel-

18 No. 08-1889

late jurisdiction under 28 U.S.C. § 1292(a), not § 1291

(final orders). There was no occasion for a remand; the

case remained pending in the district court during

and after the appeal. We have reversed the grant of

preliminary injunctions in the past without using the word

“remand,” and the district court has proceeded to the

merits after the reversal. See, e.g., Thomas & Betts Corp. v.

Panduit Corp., 65 F.3d 654, 664 (7th Cir. 1995); on remand,

1995 WL 904908 (N.D. Ill. 1995).

And what if we did word our decision so loosely as to

enable an interpretation that has us having resolved

issues not before us and extinguished rights (specifically

the right to return to the United States after revocation

of advance parole) and remedies (specifically, mandamus)

that were not yet ripe for decision because the litiga-

tion had not yet proceeded far enough? Is the plaintiff to

be punished because we were imprecise?

The plaintiff, his action to restore his advance parole

having failed, wants only to be allowed to return to

the United States to pursue his application for adjust-

ment of status. That is a right that the regulation unambig-

uously confers on him, and the unequivocal violation of

a statute or regulation imposing a duty on a federal

official can be rectified by mandamus—an order “to

compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plain-

tiff.” 28 U.S.C. § 1361; see Iddir v. INS, supra, 301 F.3d at

499-500; Rios v. Ziglar, 398 F.3d 1201, 1206-07 (10th Cir.

2005); cf. Davis Associates, Inc. v. Secretary of Housing &

Urban Development, 498 F.2d 385, 389 n. 5 (1st Cir. 1974);

No. 08-1889 19

United States ex rel. Schonbrun v. Commanding Officer,

Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968).

Neither in its briefs nor at oral argument has the gov-

ernment been able to give any reason—some ground

for bending the language of its own regulation to

avoid absurd or otherwise untoward consequences—why

the plaintiff should not be allowed to return to the

United States to pursue his application for adjustment

of status. He did nothing wrong by going to visit his

sick mother in Jordan—the government said he could do

so and return. If he is a threat to U.S. security, he can be

returned under guard and kept under guard until the

application is disposed of or removal or criminal pro-

ceedings brought to successful completion against

him. The government has not suggested that he is too

dangerous to be allowed on an airplane—in fact it

has not suggested that he is dangerous at all. One can be

a “security risk” without creating a risk of committing

a violent act.

No one has told us what kind of “security risk” the

plaintiff is. The government points to no facts or

reasoning that might support the immigration service’s

refusal to allow him to return to the United States. No

evidence is mentioned that might connect him to

Hamas. There is just the cryptic statement by the gov-

ernment’s lawyer at oral argument—a statement redolent

of guilt by association—-that maybe the plaintiff “needs

better friends” (what he really needed was a better

travel agent, who wouldn’t have routed him through

Shannon). The government is going for broke: it wants

20 No. 08-1889

an opinion from us that will affirm its right to disregard

its own regulation and exclude an alien on the basis of a

groundless suspicion or, for that matter, no suspicion.

The government’s insistence that a grant of advance

parole creates no right of reentry to the United States (or

if it does create such a right, no remedy for its violation)

comes close to nullifying advance parole; for what appli-

cant for adjustment of status (and thus not yet a lawful

resident) would take a chance on leaving the country if

he can be denied reentry on an immigration officer’s

whim? The Attorney General can abolish advance

parole if he wants, but he cannot be permitted to make

it a trap—a device for luring a nonlawful resident out

of the United States so that he can be permanently ex-

cluded from this country without any of the procedural

protections that he would enjoy if, remaining in the

United States, he could be removed only in a removal

proceeding.

The government argues finally that the refusal of a

consular official to issue a visa to an alien cannot be

reviewed by the courts; and it adds (incorrectly, as

we’ll see) that without a visa the plaintiff, being an alien,

won’t be allowed back into the United States even if he

waves an order of mandamus in the face of a consular

official; so the plaintiff is checkmated even if his rights

have been violated. The government also points out that

the plaintiff has not applied for a visa—of course not;

he knows it would be denied.

The doctrine of “consular nonreviewability,” on which

the government’s argument is based and which in

No. 08-1889 21

the United States at least has a tarnished pedigree, having

been first recognized by the Supreme Court in cases

that authorized the expulsion of hapless Chinese

laborers, see Fong Yue Ting v. United States, 149 U.S. 698,

707, 713-14 (1893); Chae Chan Ping v. United States (the

Chinese Exclusion Case), 130 U.S. 581, 609 (1889); Donald S.

Dobkin, “Challenging the Doctrine of Consular Nonre-

viewability in Immigration Cases,” 24 Georgetown Im-

migration L.J. 113, 116-22 (2010), tells courts not to

second guess the immigration authorities’ refusal to

issue a visa to a foreigner. United States ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 543-44 (1950); Kleindienst v.

Mandel, 408 U.S. 753, 765-67 (1972); Saavedra Bruno v.

Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999); Burrafato

v. U.S. Dept. of State, 523 F.2d 554, 556 (2d Cir. 1975). But

like most general legal principles it is qualified. As ex-

plained in United States ex rel. Knauff v. Shaughnessy, supra,

338 U.S. at 543, “it is not within the province of any

court, unless expressly authorized by law, to review the

determination of the political branch of the Govern-

ment to exclude a given alien” (emphasis added).

So there’s a presumption against judicial review of

denials of visas to foreigners, but not a conclusive one. See,

e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir.

2008); Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988); see

also Kleindienst v. Mandel, supra, 408 U.S. at 770. Its normal

operation is illustrated by Kiyemba v. Obama, 555 F.3d 1022,

1026 (D.C. Cir. 2009), vacated, 130 S. Ct. 1235, reinstated in

amended form, 605 F.3d 1046 (D.C. Cir. 2010). No law

authorized the plaintiffs in that case to enter the United

22 No. 08-1889

States. Our plaintiff, in contrast, has a right to be “restored

to the status that he had at the time of parole,” 8 C.F.R.

§ 212.5(e), which includes, as we keep saying, physical

presence in this country.

Several cases apply the exception recognized in Knauff

to aliens entitled to mandamus because they have a clear

right to be in the United States. Singh v. Clinton, 618

F.3d 1085, 1088 (9th Cir. 2010); Patel v. Reno, 134 F.3d 929,

931-32 (9th Cir. 1997); Mulligan v. Schultz, 848 F.2d 655,

657 (5th Cir. 1988). (We said in Ahmed v. Dep’t of Homeland

Security, 328 F.3d 383, 388 (7th Cir. 2003), that we

might agree with these cases if the issue arose. See also

Iddir v. INS, supra, 301 F.3d at 499-500.) The plaintiff in

this case, as in the cases cited, is unlike the typical alien,

who has no right to a visa. This alien has a right, conferred

by a regulation the validity of which is conceded all

around, to be in this country.

Visas are issued by the State Department, however, and

it is not a party to this case. It could be made a party, but

that is unnecessary. The plaintiff doesn’t need a visa. The

Attorney General is authorized by the parole statute to

parole him into the United States, 8 U.S.C. § 1182(d)(5)(A),

and by regulation to grant parole “to an alien who

will travel to the United States without a visa.” 8

C.F.R. § 212.5(f). The fact that the plaintiff’s advance

parole was revoked doesn’t preclude a fresh grant of

parole to let him back in—an action not only consistent

with the statute but (since his original travel document,

the Form I-512L, has expired) required to place the gov-

ernment in compliance with the parole regula-

No. 08-1889 23

tion—required unless an alternative route is opened to

the plaintiff. Or an immigration officer can, either at a port

of entry or at a pre-inspection station, 8 C.F.R. § 235.5,

admit an alien upon determining that he is “clearly and

beyond a doubt entitled to be admitted” to the United

States. 8 U.S.C. § 1225(b)(2)(A); see Clark v. Martinez, 543

U.S. 371, 373 (2005). This subsection applies to any alien

who is not an “arriving alien,” and as we noted earlier

an alien granted advance parole is not an arriving alien.

We do not retract our earlier statement, based on our

previous decision, that the immigration statute makes

the grant of advance parole discretionary, 8 U.S.C.

§ 1182(d)(5)(A), and its revocation likewise when it says

that “when the purposes of such parole shall, in the

opinion of the Attorney General, have been served the

alien shall forthwith return or be returned to the

custody from which he was paroled and thereafter his

case shall continue to be dealt with in the same manner

as that of any other applicant for admission to the

United States.” Id.; see Samirah v. O’Connell, supra, 335

F.3d at 548-49; Hassan v. Chertoff, 593 F.3d 785, 789-90

(9th Cir. 2010); cf. Webster v. Doe, 486 U.S. 592, 600 (1988).

But it isn’t true that if we can order the Attorney

General to grant parole, the decision whether to grant

or deny or revoke parole is no longer in his discretion.

He has limited his discretion by promulgating the reg-

ulation that requires that upon termination of advance

parole the parolee be restored to his pre-parole status,

and there is no suggestion that the Attorney General

cannot limit his own discretion in this way—it would

actually curtail his discretionary authority if he could

not limit his discretion.

24 No. 08-1889

Just as a state may give its people more legally enforce-

able rights than a statute or a constitutional provision

requires, e.g., DeTomaso v. McGinnis, 970 F.2d 211, 212

(7th Cir. 1992), so may a federal agency, by a regulation

within its authority to issue, grant persons subject to its

authority more legally enforceable rights than a statute

or the Constitution gives them. E.g., United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260, 265-68 (1954) (“regula-

tions with the force and effect of law supplement the

bare bones of” a statute (footnotes omitted)); Leslie v.

Attorney General of United States, 611 F.3d 171, 178-80

(3d Cir. 2010); Fisher v. United States 402 F.3d 1167, 1177

(Fed. Cir. 2005); Johnson Oyster Co. v. Baldridge, 704 F.2d

1060, 1062-63 (9th Cir. 1983). “[R]ules promulgated by a

federal agency, which regulate the rights and interests

of others, are controlling upon the agency. The doctrine

was first announced in an immigration case in United

States ex rel. Accardi v. Shaughnessy, where the Court

vacated a deportation order of the Board of Immigration

Appeals because the procedure leading to the order

did not conform to the relevant regulations. The failure

of the Board and of the Department of Justice to follow

their own established procedures was held to be

reversible error.” Montilla v. INS, 926 F.2d 162, 166-67 (2d

Cir. 1991) (citation omitted). As succinctly summarized

by Professor Merrill, “even if the applicable statutes

confer complete discretion on agency actors, if those

actors have the authority to constrain their discretion by

promulgating legislative rules, and they choose to do so,

they have created law that can serve as the basis for

judicial review.” Thomas W. Merrill, “The Accardi Princi-

ple,” 74 Geo. Wash. L. Rev. 569, 605 (2006).

No. 08-1889 25

In holding that the plaintiff is entitled to mandamus,

we do not take a single step back from our previous

decision. We held first that the Attorney General has

unreviewable authority to revoke advance parole, and

second that the plaintiff, not being in custody and not

being in the United States or in Guantánamo Bay,

Boumediene v. Bush, 128 S. Ct. 2229, 2258-62 (2008), cannot

obtain habeas corpus relief. 335 F.3d at 548-52. Our

opinion did not address the plaintiff’s alternative claim

to relief under the mandamus statute, though it had not

been forfeited, having been preserved both in the

district court and, on appeal, in this court.

Although we thus agree with the district judge that the

plaintiff is entitled to relief, we don’t agree with the form

of relief that he ordered after our first decision. He ordered

the government to allow the plaintiff to return to the

United States, and to give him a removal hearing, or hold

the hearing abroad if that’s possible. But the government

has never tried to remove the plaintiff, may never try, and

for all we know would fare badly if it did try—and in any

event a removal proceeding might be enjoined until the

plaintiff’s application for adjustment of status was re-

solved. Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2010);

Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004); cf.

Benslimane v. Gonzales, 430 F.3d 828, 831-33 (7th Cir. 2005);

but see Ahmed v. Gonzales, 447 F.3d 433, 437-39 (5th Cir.

2006). And a removal proceeding might end favorably

to the plaintiff despite the allegation that he is a “security

risk,” an allegation that for all we know may evaporate

upon even the most superficial inquiry into its basis. In

a removal proceeding he would be entitled to examine

26 No. 08-1889

and try to rebut any adverse evidence unless it was

classified. 8 C.F.R. § 103.2(b)(16); Ogbolumani v.

Napolitano, 557 F.3d 729, 735 (7th Cir. 2009). And if it

was classified, he ordinarily would “be given notice of the

general nature of the information and an opportunity to

offer opposing evidence.” 8 C.F.R. § 103.2(b)(16)(iv).

But unless and until the government tries to remove

the plaintiff, the courts cannot order a removal hearing.

We remand the case to the district court for the issuance

of a mandamus commanding the Attorney General to take

whatever steps are necessary to enable the plaintiff to

reenter the United States for the limited purpose of reac-

quiring the status, with respect to his application for

adjustment of status, that he enjoyed when he left the

United States pursuant to the grant of advance parole

later revoked. An order couched in terms of “take what-

ever steps are necessary” may seem vague. But the Attor-

ney General has as we have indicated several means of

compliance and we can let him decide which to employ

to enable the plaintiff to return.

Lest the scope of our decision be exaggerated, we

emphasize that the relief we are ordering will not “ad-

mit” the plaintiff to the United States in the sense of

upgrading his status from that of a nonlawful resident of

this country; it will merely enable him to pursue his

application for an adjustment of status as long as he is

permitted to remain in the country. And we intimate

no view on whether he is entitled to such an adjustment.

He very well may not be. But he has a right, conferred on

him by the same agency of government that denies it, to

No. 08-1889 27

more consideration than he has received. The Attorney

General can grant advance parole or deny it, as he

wishes; he can revoke it at will; he can eliminate

advance parole altogether, or change the rules governing

it. But having made the rules, whatever they are, he

must, until he changes them, play by them.

A FFIRMED IN P ART, M ODIFIED ,

AND R EMANDED .

M ANION, Circuit Judge, dissenting. Today the court

remands this case “to the district court for the issuance

of a mandamus commanding the Attorney General to

take whatever steps are necessary to enable the plaintiff

to reenter the United States . . . .” Opinion at 26. This

directive mirrors the relief the district court granted

Samirah more than seven years ago: “Defendants must

issue, or arrange for the issuance of, any and all docu-

ments necessary to permit Sabri Samirah to enter the

United States on or before March 28, 2003.” In Samirah v.

O’Connell, 335 F.3d 545 (7th Cir. 2003) (“Samirah I”), this

court interpreted the district court’s directive as an

order reinstating Samirah’s advance parole. And because

the ordering of the reinstatement of advance parole is

beyond this court’s jurisdiction, Samirah I concluded

that “[s]ection 1252(a)(2)(B)(ii) bars jurisdiction over the

28 No. 08-1889

rest of Samirah’s action.” Samirah, 335 F.3d at 552 (em-

phasis added). “The rest of Samirah’s action” means

exactly that—the rest of Samirah’s action—which is why

Samirah I “reversed” the district court’s decision, but

did not remand the case to the district court for further

proceedings. Id. at 552. Because Samirah I resolved this

case in its entirety, I respectfully dissent.

Samirah himself recognized that Samirah I barred all of

his claims, stating as much in his petition for rehearing

en banc filed with this court and his petition for

certiorari to the Supreme Court. This court denied

Samirah’s petition for rehearing. And the Supreme Court

denied Samirah certiorari. See Samirah v. Ashcroft, 541

U.S. 1085 (2004). Once this court and the Supreme Court

denied Samirah’s petitions for review, Samirah I became

final. 1

Nonetheless, the court today concludes that Samirah I is

not dispositive because “the issues presented to us have

changed,” opinion at 1, and “the relief sought in the

present appeal (mandamus) is different from that sought

unsuccessfully in the prior one (habeas corpus).” Opinion

at 2. But not only is the relief sought the same, see supra at

27 (and Samirah did seek relief through both habeas

corpus and mandamus in Samirah I), “[t]he issues pre-

sented to us” also have not changed. In both Samirah I and

1

The fact that Samirah I was on appeal from the grant of a

preliminary injunction has no bearing on the finality of this

court’s holding that the district court lacked jurisdiction “over

the rest of Samirah’s action.” Samirah, 335 F.3d at 552.

No. 08-1889 29

in this appeal, Samirah argued the same statutory and

constitutional theories for relief, claiming jurisdiction

then, as well as now, based on, among other grounds, the

mandamus statute. The only issue that is new is the one

the court has presented based on 8 C.F.R. § 212.5(e)(i).

Samirah did not rely on § 212.5(e)(i) in Samirah I—he did

not even cite that regulation in his appellate brief. And

because he does not rely on that regulation in this current

appeal,2 the government has not had an opportunity

to address the issues presented in the court’s holding.

There is a good reason not to rely on § 212.5(e)(i)—that

section does not apply to Samirah’s situation. Section

212.5(e)(i) states that “parole shall be terminated upon

written notice to the alien and he or she shall be restored

to the status that he or she had at the time of parole.”

8 C.F.R. § 212.5(e)(2)(i). But Samirah was never granted

parole in the first place so obviously it could not be termi-

nated. Samirah received advance parole and advance

parole is not the same as parole.

The Board of Immigration Appeals (“BIA”) explained

this distinction in its en banc decision in Matter of G-A-C-, 22

I. & N. Dec. 83, 88 n.3 (BIA 1998) (en banc): “The term

‘advance parole’ is something of a misnomer, and this

phrasing may cause some confusion. An alien in the

United States can request an advance authorization of

2

In fact, Samirah’s only citation to § 212.5(e)(i) in his current

appeal comes at page 10 of his appellee brief, where he sum-

marizes the government’s position that advance parole is not

parole—a position with which he agreed at oral argument.

30 No. 08-1889

parole. If the request is approved, the alien is not at that

point ‘paroled.’ ” The BIA then stated that “[t]his is a

distinction of some significance,” id., citing Barney v.

Rogers, 83 F.3d 318 (9th Cir. 1996). In Barney, the Ninth

Circuit explained that “[a]lthough Petitioner received

advance parole—a promise of parole upon her re-

turn—while she was an illegal overstay, she was not

‘paroled’ until she returned to the United States from

Nigeria.” Id. at 321. Thus, the court explained, “ ‘at the

time of parole,’ as distinguished from the time of advance

parole, the petitioner was an excludable alien like all

aliens who seek admission to the United States at desig-

nated ports of entry.” Id. The Barney court then con-

cluded: “In other words, the advance parole gave Peti-

tioner the right to return for the purpose of completing

her Adjustment Application; it did not ‘freeze’ her

status as an illegal overstay.” Id. (In this case, though,

Samirah’s advance parole was revoked, so there was

no right to return.) Similarly, the Second Circuit has

distinguished advance parole from parole, stating: “ ‘Ad-

vance parole’ is the determination of an appropriate

DHS officer that DHS should agree to the exercise of the

parole authority under Section 212(d)(5)(A) of the Act

before the alien’s actual arrival at a port-of-entry. The

actual decision to parole, however, is made at the port-of-

entry.” See Ibragimov v. Gonzales, 476 F.3d 125, 136 n.15 (2d

Cir. 2007) (quoting Eligibility of Arriving Aliens in Re-

moval Proceedings, 71 Fed.Reg. at 27,586 n.1 (May 12,

2006)). Moreover, as the Ibragimov court explained: “a

decision authorizing advance parole does not preclude

denying parole when the alien actually arrives at a port-of-

No. 08-1889 31

entry, should DHS determine that parole is no longer

warranted.” 3 Id.

At oral argument, Samirah’s attorney stated that the

government had always maintained that “Samirah never

had parole” and that “advance parole isn’t actually pa-

role.” Significantly, Samirah’s attorney then added: “And

we agree with that.” In fact, in his petition for rehearing

to this court in Samirah I, Samirah stated that the

Board’s interpretation of advance parole, as not itself

a “parole,” receives Chevron deference. Petition for Re-

hearing at 4, n.3. Samirah then added: “In any event, the

revocation of advance parole authorization is not the

revocation of parole itself.” Id.

Because advance parole is not parole, I do not

believe § 212.5(e)(i) provides a basis for the relief

Samirah seeks, namely re-entry into the United States.4

3

While dicta in a footnote in Succar v. Ashcroft, 394 F.3d 8, 15

n.7 (1st Cir. 2005), does say that advance parole is a type

of parole, that statement is inconsistent with the Board’s view

in G-A-C-, to which we owe deference, as well as the Ninth

Circuit’s decision in Barney, and the Second Circuit’s decision

in Ibragimov.

4

Because § 212.5(e)(i) does not apply to advance parole and

provides no right to the court’s relief, it cannot form the basis

for mandamus jurisdiction. See Iddir v. INS, 301 F.3d 492, 499

(7th Cir. 2002) (“Mandamus relief will be granted if the plain-

tiff can demonstrate that the three enumerated conditions are

present: (1) a clear right to the relief sought; (2) that the defen-

dant has a duty to do the act in question; and (3) no other

(continued...)

32 No. 08-1889

But assuming § 212.5(e)(i) applies to the revocation of

Samirah’s advance parole, I also disagree with the court’s

conclusion that Samirah’s pre-advance-parole status

was as “an applicant for adjustment of status,” Opinion

at 16, and its holding that to regain that status,

Samirah must be allowed to return to the United States.

Being an applicant for the adjustment of status is not

an immigration status—if it were, there would be no

need to assimilate such applicants to the status of an

applicant for entry. Palmer v. INS, 4 F.3d 482, 484 (7th

Cir. 1993). And if we are going to treat “status” as some-

thing other than a recognized immigration status, then

Samirah’s real status was that of an alien abroad with

a grant of advance parole. And returning him to that

status would simply require mandating that the govern-

ment reinstate Samirah’s advance parole.

Instead, though, the court’s mandate to the district

court requires “commanding the Attorney General to

take whatever steps are necessary to enable the plaintiff

to reenter the United States . . . .” Opinion at 26. This

directive is not just indefinite, but beyond this court’s

power. The “several means of compliance” the court

4

(...continued)

adequate remedy is available.”). Thus, Samirah I is entirely

consistent with Iddir, and there was no need to circulate

Samirah I to the entire court pursuant to Rule 40(e). Samirah I,

though, was circulated 40(e) because of the conflict it created

with the Ninth Circuit concerning the availability of habeas

corpus. Samirah v. O’Connell, 335 F.3d 545, 550 n.6. (7th Cir.

2003).

No. 08-1889 33

suggests as options are: (1) issue Samirah another I-512L

form, Opinion at 6; (2) issue Samirah a visa, Opinion

at 22; (3) parole Samirah, Opinion at 22; or (4) just ad-

mit Samirah into the United States without documenta-

tion, Opinion at 6, 23. (1) is reinstatement of advance

parole, which is beyond our power to order. See Samirah I,

335 F.3d at 552. (2) is barred by the consular non-

reviewability doctrine and the fact that the State Depart-

ment is not a party. (3) is a purely discretionary deci-

sion for the Attorney General, which this court lacks

jurisdiction to order, and in any event would not

provide a means for Samirah to reach a port-of-entry—as

he is still in Jordan and lacks a travel document to get

to a port-of-entry.5 And (4) violates the INA. 8 U.S.C.

§ 1182(7)(A)(i).6 What the court cannot order directly, it

cannot order indirectly through a “whatever steps are

necessary” mandate. But if the court insists on forcing

5

Directing the government to grant Samirah parole would

also provide Samirah with greater rights than he held as an

advance parolee, because someone granted advance parole

can still be denied parole at the border. See Ibragimov v. Gonza-

les, 476 F.3d 125, 136 n.15 (2d Cir. 2007) (quoting Eligibility

of Arriving Aliens in Removal Proceedings, 71 Fed.Reg. at

27,586 n.1 (May 12, 2006)).

6

It would also seem that the “whatever steps are necessary”

mandate would require the government to remove Samirah

from a no-fly list, if he is indeed on such a list, as the court

assumes. Opinion at 7. The propriety of including Samirah on

a no-fly list, though, has never been litigated and should not

be unconditionally ordered by the court today.

34 No. 08-1889

the government to allow Samirah back into the United

States, it should just straightforwardly mandate rein-

statement of his advance parole. Although I do not

agree that we have jurisdiction to do so, that would be

the most efficient use of mandamus.

12-3-10