Zheng v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

9-8-2005

Zheng v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-3634

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation

"Zheng v. Atty Gen USA" (2005). 2005 Decisions. Paper 489.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/489

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________________

No. 03-3634

____________________

ZHENG ZHENG,

Petitioner

v.

ALBERTO GONZALES,* ATTORNEY GENERAL OF THE

UNITED STATES,

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Board No. A72-500-941)

Argued: February 7, 2005

Before: BARRY, FUENTES, and BECKER, Circuit Judges.

(Filed: September 8, 2005)

JOSEPH C. HOHENSTEIN (ARGUED)

1300 Spruce Street

Philadelphia, PA 19107

*

Substituted pursuant to Fed. R. App. P. 43(c).

Attorney for Petitioner

PETER D. KEISLER

Assistant Attorney General

LINDA S. WERNERY

Senior Litigation Counsel

THANKFUL T. VANDERSTAR (ARGUED)

Trial Attorney

Office of Immigration Litigation

Civil Division

United States Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

MARY A. KENNEY

NADINE K. WETTSTEIN

American Immigration Law Foundation

918 F Street, NW

Washington, DC 20004

Attorneys for Amicus Curiae American Immigration Law

Foundation

_____

OPINION OF THE COURT

BECKER, Circuit Judge.

Table of Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. Facts and Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Background Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Zheng’s Adjustment Application . . . . . . . . . . . . . . . . 5

C. Removal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. Appellate Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 7

III. The Motion To Reopen Asylum Proceedings . . . . . . . . . . . 8

A. The Lozada Requirements . . . . . . . . . . . . . . . . . . . . . 9

2

B. Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Adjustment of Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The Statutory and Regulatory Framework . . . . . . . . 12

1. Statutory Authority To Adjust Status . . . . . . 13

2. The Eligibility Regulation . . . . . . . . . . . . . . . 14

B. The “Arriving Alien” Category . . . . . . . . . . . . . . . . 15

V. The Validity of the Regulation . . . . . . . . . . . . . . . . . . . . . . 18

A. The Chevron Analysis . . . . . . . . . . . . . . . . . . . . . . . 19

B. Discretion and the Chevron Analysis . . . . . . . . . . . . 20

C. Chevron Step One: Eligibility and Discretion . . . . . 22

D. Chevron Step Two: Congressional Meaning Versus

Regulatory Restrictions . . . . . . . . . . . . . . . . . . . 26

1. Parole and Removal Proceedings . . . . . . . . . 26

2. Arriving Aliens and Adjustment of Status . . . 28

3. Is the Regulation a Permissible Interpretation of

the Statute? . . . . . . . . . . . . . . . . . . . . . . . 30

VI. Application to Zheng . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

A. Zheng’s Parole Status and the Effect of the Notice to

Appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

B. Zheng’s Adjustment Applications . . . . . . . . . . . . . . 34

C. Who Has Jurisdiction Over Zheng’s Application? . 35

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

I. Introduction

Zheng Zheng petitions this Court to review a decision by the

Board of Immigration Appeals (BIA) denying his motion to reopen

removal proceedings. Zheng raises two claims. First, he argues that

the BIA should have granted his motion to reopen because of

ineffective assistance of counsel. Zheng argues that his previous

attorney was ineffective because he failed to file an appellate brief

with the BIA after an Immigration Judge (IJ) denied his application

for asylum. Because we find that the prejudice requirement of the

ineffective assistance claim has not been met, we reject Zheng’s

argument on this point.

Second, Zheng argues that the BIA should have granted his

3

request to remand his case so that an IJ might consider his petitions

for adjustment of status. Zheng presses two applications to adjust

status. First, he has an employment-based application. Second, he

alleges that he is covered by the Chinese Student Protection Act of

1992, Pub. L. No. 102-404, 106 Stat. 1969 (CSPA), which allows

certain Chinese nationals to adjust their status to that of lawful

permanent residents. The government responds that Zheng is an

“arriving alien” and, as such, forbidden by regulation from

adjusting his status under 8 C.F.R. § 1245.1(c)(8). Zheng and the

amicus curiae argue that this regulation is inconsistent with the

governing statute, and therefore invalid, relying on the First

Circuit’s recent decision in Succar v. Ashcroft, 394 F.3d 8 (1st Cir.

2005).

While our reasoning differs somewhat from that of the First

Circuit, we agree with that court’s conclusion that 8 C.F.R.

§ 1245.1(c)(8) is not a valid exercise of the Attorney General’s

authority under the Immigration and Nationality Act (INA). We

concur with the government that the statute grants the Attorney

General broad discretion to issue regulations, and that this

discretion may include some power to regulate eligibility to adjust

status. But the Attorney General’s power is not unlimited, and must

be exercised consistently with the intent of the statute. Because the

statute allows paroled aliens to apply for adjustment of status,

whereas the regulation forecloses this statutory eligibility, the

regulation is not based on a permissible statutory reading. We will

therefore grant the petition for review and remand to allow the

immigration authorities to consider Zheng’s applications for

adjustment of status.

II. Facts and Procedural History

A. Background Facts

Zheng Zheng was born on May 25, 1960, in Fuzhou,

People’s Republic of China. He claims that in 1989, when he was

a middle school teacher in Fuzhou, he was involved in student

uprisings. He apparently disseminated information from the BBC

and Voice of America to the teachers and students of his school,

passed out pamphlets, and organized rallies. The Chinese

government cracked down on the student demonstrators in June

4

1989. As part of this crackdown, government authorities came

looking for Zheng. He hid from security officers for a time, staying

with friends and relatives, and eventually left China through Hong

Kong and came to the United States. Zheng apparently arrived in

California at some point in or after 1990, and entered the country

without inspection by immigration officials.

Zheng eventually moved to Woodlyn, Pennsylvania, where

he lived until 1993, when he returned to China briefly to visit his

sick father. Before leaving for China, Zheng obtained a permission

to re-enter (or “advance parole”), dated July 28, 1993, which

allowed him to return to the United States under the status that he

had when he left. Although Zheng was an uninspected illegal alien,

he was not deportable at that time because then-President Bush had

instituted a Deferred Enforced Departure (DED) program for

certain Chinese nationals in the wake of the Tiananmen Square

massacre. See Exec. Order No. 12,711, 55 Fed. Reg. 13897 (Apr.

11, 1990). Zheng was eligible for DED, so his permission to re-

enter was issued. This allowed him to travel to China and return to

the United States without being detained at the border as an illegal

alien. He did in fact re-enter the United States on September 27,

1993, using his advance parole authorization.1

B. Zheng’s Adjustment Application

On October 20, 1993, Zheng filed an application to adjust

status with the Immigration and Naturalization Service (INS).2 In

this application, he claimed that he was entitled to lawful permanent

residence status under the Chinese Student Protection Act, because

he had arrived in the United States before April 11, 1990, and met

1

The DED program expired by its terms on January 1, 1994.

Exec. Order No. 12,711, § 1, 55 Fed. Reg. 13897 (Apr. 11, 1990).

2

On March 1, 2003, the INS’s functions were transferred to the

Bureau of Immigration and Customs Enforcement (ICE) and the U.S.

Customs and Immigration Service (USCIS) of the United States

Department of Homeland Security (DHS). See Knapik v. Ashcroft, 384

F.3d 84, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of 2002,

Pub. L. No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, codified at 6

U.S.C. §§ 251, 271 & 291).

5

the other requirements of the CSPA. He submitted a sworn

statement saying that he entered California on February 1, 1990, as

well as various materials that tended to show that he was in New

York prior to that date. The INS ultimately ruled on the application

on May 5, 1999—almost six years after it was filed—finding that

Zheng had failed to “present authentic and convincing evidence” to

show that he had entered the United States prior to April 1990. It

noted that many of the materials Zheng had submitted were proven

to be fraudulent, and Zheng admitted as much, saying that he

bought one of the documents on the street in Chinatown. The INS

therefore denied Zheng’s application to adjust his status.

C. Removal Proceedings

That decision left Zheng as an unadmitted illegal alien. On

October 29, 1999, the INS began removal proceedings by serving

on Zheng a Notice to Appear alleging that he was an “alien present

in the United States without being admitted or paroled” under

8 U.S.C. § 1182(a)(6)(A)(i). On January 7, 2000, the INS amended

the Notice to Appear, withdrawing the § 1182(a)(6)(A)(i) charge

and adding a charge under § 1182(a)(7)(A)(i)(I), which allows

deportation of an alien who “is not in possession of a valid

unexpired immigrant visa, reentry permit, border crossing

identification card, or other valid entry document required by [the

INA].” The new Notice to Appear also revised the factual

allegations against Zheng, alleging that he was, “on September 27,

1993, paroled into the United States pursuant to Executive Order

12711,” and that he was removable under the § 1182(a)(7)(A)(i)(I)

standard.

Zheng retained an attorney, Sigang Li, who filed an asylum

application on his behalf on August 7, 2000. A merits hearing was

conducted before an Immigration Judge in Philadelphia on

September 17, 2001. Zheng testified during a brief direct

examination in which he contradicted his asylum application in

several important respects. Most notably, he stated that he was

depressed because he had just learned that his father had died on

August 27, 2001—but his August 2000 asylum application listed his

father as deceased. He also told a story about his interactions with

the Chinese security agencies that differed in several particulars

from the account in his application. In a lengthy cross-examination,

6

counsel for the INS pointed out these inconsistencies.

At the end of the September 17, 2001, hearing, the IJ issued

an oral decision. Before reaching Zheng’s asylum claims, he

considered his CSPA application to adjust status, which had been

submitted as an exhibit. He noted that Zheng “initially had indicated

an intent to renew that application before this Court,” but

determined that Zheng, as a parolee, was an “arriving alien” under

8 C.F.R. § 1245.1(c)(8). The IJ thus decided that Zheng was

ineligible for adjustment of status.

The IJ then turned to Zheng’s claims for asylum, withholding

of removal, and protection under the Convention Against Torture

(CAT). Based on inconsistencies between Zheng’s testimony and

his application, the IJ made an adverse credibility finding. He thus

denied asylum, withholding, and CAT relief. As for the asylum

claim, he also found that Zheng should be barred from asylum

because he filed his claim too late, see generally 8 C.F.R.

§ 208.4(a), although he noted that he would not have exercised his

discretion adversely if Zheng had been credible and eligible for

asylum.

D. Appellate Proceedings

Zheng then engaged attorney Sigang Li to file an appeal

before the BIA. Li filed a Notice of Appeal with the BIA, and

checked the box indicating that he would file a brief. He never filed

a brief, and now claims that this was because he did not receive a

briefing schedule from the BIA. Without a brief from the

petitioner, the INS also did not file a brief, and the BIA dismissed

the appeal in a short per curiam order dated August 20, 2002. The

dismissal was predicated mainly on Zheng’s counsel’s failure to file

a brief, which can support a summary dismissal under 8 C.F.R.

§ 1003.1(d)(2)(i)(E) (formerly § 3.1(d)(2)(i)(D)). The BIA also

considered the merits, however, noting that “upon review of the

record, we are not persuaded that the Immigration Judge’s ultimate

resolution of this case was in error.” Zheng never petitioned this

Court to review the BIA’s August 2002 decision.

Zheng retained new counsel, who filed a timely motion to

reopen with the BIA on November 18, 2002, alleging ineffective

assistance of counsel. The motion argued that Li’s failure to file a

brief constituted ineffective assistance and thus warranted

7

reopening. It further argued that Zheng was entitled to review of

his application for adjustment of status. The motion to reopen also

pressed Zheng’s application to adjust status pursuant to the CSPA,

and included a further application for adjustment of status based on

an approved Petition for Alien Worker.3

In a March 5, 2003, decision, the BIA denied the motion to

reopen, finding that Zheng had not complied with the procedural

requirements of an ineffective assistance claim, and that even if he

had, he did not demonstrate that any prejudice resulted from Li’s

failure to file a brief. The BIA also rejected Zheng’s applications

for CSPA and work-related adjustment of status, agreeing with the

IJ that Zheng was an arriving alien in removal proceedings and

therefore ineligible to apply for adjustment of status. Zheng retained

a third attorney, who timely filed the present petition for review

with this Court.4 We have jurisdiction to review the final order of

the BIA under 8 U.S.C. § 1252.

III. The Motion To Reopen Asylum Proceedings

We deal first with Zheng’s argument that the BIA should

have granted his motion to reopen proceedings because of

ineffective assistance of counsel. Zheng initially applied for asylum,

withholding of removal, and CAT protection. Those applications

were denied by the IJ, and Zheng’s first attorney failed to file an

3

Zheng’s Immigrant Petition for Alien Worker was approved by

the INS with a priority date of February 14, 2001. The petition was

granted under INA section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i),

which allows skilled workers (Zheng is a Chinese chef) to receive

immigrant visas. An alien with such an approved petition may, in the

discretion of the Attorney General, have his status adjusted to that of a

lawful permanent resident. See 8 U.S.C. §§ 1153(b)(3) & 1229(a); see

generally U.S. Citizenship and Immigration Services, How Do I Become

a Lawful Permanent Resident While in the United States?,

http://uscis.gov/graphics/howdoi/legpermres.htm (last visited August 8,

2005).

4

Due to a mailing mishap, the March 2003 decision was reissued

on August 4, 2003. The petition for review, dated September 2, 2003,

was therefore timely filed within 30 days of the final order of removal.

See 8 U.S.C. § 1252(b)(1).

8

appellate brief with the BIA, which affirmed the IJ’s order. Zheng

submits that this failure constituted ineffective assistance and

required the BIA to reopen proceedings.

Motions to reopen immigration proceedings are viewed with

strong disfavor, and “we review the BIA’s decision to deny

reopening for abuse of discretion, mindful of the ‘broad’ deference

that the Supreme Court would have us afford.” Xu Yong Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).

A. The Lozada Requirements

Aliens in removal proceedings have a Fifth Amendment

right to due process, which entails a right to be represented by

counsel. Lu, 259 F.3d at 131. Ineffective assistance of counsel may

“constitute a denial of due process if ‘the alien was prevented from

reasonably presenting his case.’” Id. (quoting Lozada v. INS, 857

F.2d 10, 13-14 (1st Cir. 1988)).

The BIA has set forth three requirements for motions to

reopen based on claims of ineffective assistance: (1) the alien’s

motion must be supported by an “affidavit of the allegedly

aggrieved [alien] attesting to the relevant facts”; (2) “former

counsel must be informed of the allegations and allowed the

opportunity to respond,” and this response should be submitted with

the motion; and (3) “if it is asserted that prior counsel’s handling of

the case involved a violation of ethical or legal responsibilities, the

motion should reflect whether a complaint has been filed with

appropriate disciplinary authorities regarding such representation,

and if not, why not.” Matter of Lozada, 19 I. & N. Dec. 637, 639

(BIA 1988).

We have “generally agree[d] that the BIA’s three-prong test

is not an abuse of the Board’s wide-ranging discretion.” Lu, 259

F.3d at 133. The Lu panel, however, was not willing to “apply[] a

strict, formulaic interpretation of Lozada,” and noted that “only in

rare circumstances have courts refused to reopen immigration

proceedings solely because a petitioner failed to file a bar

complaint.” Id. at 133, 134 (emphasis in original). In Lu we denied

a petition for review where the alien had neither set forth the

relevant facts in sufficient detail, as required by the first prong of

Lozada, nor filed a disciplinary complaint.

Zheng, however, seems to have satisfied the Lozada

9

requirements as we interpreted them in Lu. Unlike Lu, Zheng

submitted a reasonably detailed affidavit explaining that his former

attorney, Sigang Li, had agreed to file an appellate brief but never

did. Second, Li was afforded an opportunity to respond, and did so

in a statement in which he admitted that he had agreed to file a

brief, but claimed that he did not do so because he never received

a briefing schedule. Finally, although Zheng’s later attorneys have

not filed a disciplinary complaint against Li, Lozada does not

mandate that they do so, so long as they explain why they did not.

Zheng’s attorneys have explained, in accordance with the third

prong of Lozada, that they did not file a complaint because of their

uncertainty as to whether or not Li ever received a briefing

schedule. Zheng’s present attorneys have been diligent in

investigating this issue and have submitted a request under the

Freedom of Information Act (FOIA) to determine whether such a

briefing schedule was issued.5 Zheng thus appears to have met the

procedural requirements of Matter of Lozada.

B. Prejudice

Nonetheless, Zheng’s ineffective assistance claim fails

because he has not demonstrated that prejudice resulted from the

ineffective assistance of his BIA appellate counsel. Under Lozada,

to prevail on an ineffective assistance claim, an alien must

demonstrate not only that counsel’s assistance was ineffective, but

also that he was prejudiced by counsel’s poor performance. 19 I. &

N. Dec. at 638.

When the BIA dismissed Zheng’s appeal for failure to

submit a brief, it also stated that it was satisfied that the IJ’s

5

The FOIA documents revealed that the INS also did not submit

a brief to the BIA, although the administrative record indicates that there

was a briefing notice issued to Zheng’s lawyer and to the INS. Zheng

interprets the lack of an INS brief to mean that neither party actually

received the briefing notice or schedule. The government, however,

points out that the lack of an INS brief proves nothing, as the INS is not

required to submit an appellate brief before the BIA. Without a brief

from the alien, the INS would have no reason to file a brief: the alien’s

failure to file a brief is in itself sufficient cause for the BIA to dismiss the

appeal. See 8 C.F.R. § 1003.1(d)(2)(i)(E).

10

decision was not erroneous. Similarly, in denying the motion to

reopen, the BIA noted that the motion did not allege that any

prejudice resulted from the ineffective assistance. A review of

Zheng’s motion to reopen confirms the BIA’s conclusion: the

motion states that Li’s failure to file a brief “has irreparably

prejudiced [Zheng’s] eligibility for relief from removal,” but it does

not explain why Zheng would have been eligible for relief from

removal in the first place. Indeed, in this petition for review, Zheng

does not even argue that he could have prevailed on the asylum

appeal if Li had filed a brief, beyond a general statement that he

would have had the opportunity to “make his claim for asylum

again to the BIA.” Our limited review of the merits of Zheng’s

asylum claim satisfies us that no prejudice resulted from Li’s failure

to file an appellate brief, as explained in the margin.6

Instead, Zheng alleges two other kinds of prejudice. First, he

argues that an effective appellate counsel would have been able to

present his adjustment of status claims. Because the substance of

those claims is currently before us, see infra Parts IV-V, no

prejudice seems to have resulted from Li’s failure to argue those

issues before the BIA, and we consider those claims in connection

with the merits rather than as part of an ineffective assistance

argument.

Second, Zheng contends that “counsel’s review of the

hearing transcripts before the IJ . . . identifies serious concerns

about the quality of the representation at that hearing.” He asserts

that Li was unwilling to meet with him to prepare his testimony, had

trouble finding Zheng’s file, and conducted only a brief and

6

The IJ denied asylum on the basis of an adverse credibility

finding, listing numerous discrepancies between Zheng’s testimony and

his asylum application and finding that Zheng’s explanation of these

problems on cross-examination was unconvincing. Furthermore, even if

Zheng were credible, he does not seem to have alleged any past

persecution: he was questioned by security officers, and was demoted at

work. He does not, however, allege that he was ever detained (beyond

a brief house arrest), tortured, or even threatened. He returned to China

in 1993, and does not appear to have encountered any trouble during that

visit. Zheng has given us no reason to believe that, if Li had filed an

appellate brief with the BIA, the Board might have reversed the IJ’s

reasonable asylum decision.

11

unprepared direct examination. Li’s incompetence before the IJ,

Zheng argues, prejudiced his ability to present his asylum claims.

This argument was not presented to the BIA in the motion to

reopen, which focused solely on ineffective assistance at the

appellate level. The failure to exhaust this claim before the BIA

“bars consideration of particular questions not raised in an appeal

to the Board.” Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989);

see also Awad v. Ashcroft, 328 F.3d 336, 340 (7th Cir. 2003); Prado

v. Reno, 198 F.3d 286, 292 (1st Cir. 1999). Furthermore, Zheng has

not satisfied the Lozada requirements as to this claim: Li, his

attorney, has had no opportunity to dispute Zheng’s characterization

of his performance before the IJ, and Zheng has not explained why

no disciplinary complaint was filed regarding these allegations.

We reiterate that our review of the Board’s decision turns on

abuse of discretion. Based on the arguments presented to it, the BIA

seems to have been well within its discretion to find that no

prejudice resulted from Li’s ineffective appellate assistance.

IV. Adjustment of Status

A far more difficult question is presented by Zheng’s

attempts to renew his application to adjust status under the CSPA,

and to adjust his status based on his employment-based immigrant

visa petition. The BIA held that Zheng is ineligible for this relief

because its regulations prohibit “arriving aliens” from adjusting

status. This claim was raised as part of Zheng’s motion to reopen,

and the BIA’s ultimate decision on the motion is subject to review

for abuse of discretion. Lu, 259 F.3d at 131. The Board’s legal

conclusions, however, are subject to de novo review, “with

appropriate deference to the agency’s interpretation of the

underlying statute.” Barrios v. Attorney General, 399 F.3d 272, 274

(3d Cir. 2005) (citing Abdulai v. Ashcroft, 239 F.3d 542, 551-52 (3d

Cir. 2001)).

A. The Statutory and Regulatory Framework

While Zheng appears to be eligible to apply for adjustment

of status under the plain terms of the Immigration and Nationality

Act, a regulation promulgated pursuant to the Act renders him

ineligible to do so. Zheng argues that the regulation is therefore

12

invalid, a claim we take up in Part V, infra. In this Part, we explain

why Zheng is ineligible for adjustment under the terms of the

relevant regulation.

1. Statutory Authority To Adjust Status

Zheng claims that he may adjust his status under INA section

245(a), 8 U.S.C. § 1255(a), which provides:

The status of an alien who was inspected and

admitted or paroled into the United States or the

status of any other alien having an approved petition

for classification under subparagraph (A)(iii),

(A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) [8

U.S.C. § 1154(a)(1)] [or]7 may be adjusted by the

Attorney General, in his discretion and under such

regulations as he may prescribe, to that of an alien

lawfully admitted for permanent residence if (1) the

alien makes an application for such adjustment, (2)

the alien is eligible to receive an immigrant visa and

is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed.

Zheng argues that he was “admitted or paroled into the United

States” by virtue of (1) his prior Deferred Enforced Departure status

(which Zheng contends was an “admission”) and (2) his re-entry to

the United States pursuant to a grant of advance parole on

September 27, 1993. If this contention is correct, then the statutory

text would appear to render Zheng eligible for adjustment of status,

although the final decision to adjust status is left to the discretion of

the Attorney General.

Zheng applied to adjust status pursuant to the Chinese

Student Protection Act of 1992, § 2, Pub. L. No. 102-404, 106 Stat.

7

Subparagraphs (A)(iii), (A)(iv), (B)(ii), and (B)(iii) of 8 U.S.C.

§ 1154(a)(1) all refer to aliens who are the spouses or children of citizens

or lawful permanent residents, and are not applicable here. The “or” in

the statutory text of § 1255 appears to be a mistake, and is noted as such

in the United States Code Annotated.

13

1969 (CSPA). In relevant part, the CSPA provides that an alien who

(1) is a national of the People’s Republic of China, (2) has resided

continuously in the United States since April 11, 1990 (other than

“brief, casual, and innocent absences”), and (3) was not in China for

more than 90 days between April 11, 1990, and October 9, 1992,

may adjust status to that of a lawful permanent resident without

regard to availability of immigrant visas. Id. § 2(a) & (b). In

addition, Zheng asks to adjust status pursuant to an employment-

based application.

2. The Eligibility Regulation

The government responds that Zheng is ineligible to adjust

status because he is an “arriving alien who is in removal

proceedings.” The government’s theory is based on a regulation

promulgated pursuant to the INA, which provides that “[a]ny

arriving alien who is in removal proceedings pursuant to section

235(b)(1) or section 240 of the Act [8 U.S.C. § 1225(b)(1) or

§ 1229a]” is categorically “ineligible to apply for adjustment of

status to that of a lawful permanent resident alien under section 245

of the Act [8 U.S.C. § 1255].” 8 C.F.R. § 1245.1(c)(8). We deal

with the question whether Zheng is an “arriving alien” later. See

infra Part IV.B. For now, we note that it is clear that Zheng is

currently in removal proceedings under section 240 of the INA, 8

U.S.C. § 1229a, and therefore falls under the regulation if he is in

fact an “arriving alien.”

It is less clear that Zheng’s application to adjust his status

falls under section 245 of the INA, 8 U.S.C. § 1255. Zheng argues

instead that it falls under the CSPA, which is a separate statute.8

This argument is based on the BIA’s decision in Matter of Artigas,

23 I. & N. Dec. 99 (BIA 2001), in which the Board allowed an

arriving alien to adjust status pursuant to the Cuban Refugee

Adjustment Act, Pub. L. No. 89-732, 80 Stat. 1161 (1966). The INS

had argued that Artigas’s application was barred by 8 C.F.R.

§ 1245.1(c)(8), but the BIA disagreed, finding that the regulation

only covers section 245 applications, and “does not state that

arriving aliens in removal proceedings are ineligible to apply for

8

Zheng’s application to adjust status based on his employment

visa application falls squarely under section 245.

14

adjustment of status under the Cuban Adjustment Act.” Artigas, 23

I. & N. Dec. at 104. Zheng argues that the CSPA, like the Cuban

Refugee Adjustment Act, is an independent means of adjusting

status, and that it is therefore not covered by § 1245.1(c)(8). The

BIA disagreed, noting cursorily that it “[saw] no reason to extend

[its] holding in Matter of Artigas . . . to the instant case.”

Zheng’s analogy has intuitive appeal, in that the CSPA and

the Cuban Refugee Adjustment Act serve similar purposes, and

there is therefore some logic to treating them similarly.

Nonetheless, the two statutes work via different mechanisms, and

this difference dooms Zheng’s argument. The Cuban Refugee

Adjustment Act specifically created a new mechanism for

adjustment of status, in language that to some extent parallels

section 245 but does not rely on it. (Indeed, that Act operates

“[n]otwithstanding the provisions of section 245(c) of the

Immigration and Nationality Act.” Cuban Refugee Adjustment Act

§ 1, Pub. L. No. 89-732, 80 Stat. 1161.)

The CSPA, on the other hand, applies specifically “whenever

[a covered] alien . . . applies for adjustment of status under section

245 of the Immigration and Nationality Act.” CSPA § 2(a)(1), Pub.

L. No. 102-404, 106 Stat. 1969 (emphasis added). Thus the CSPA

modifies some of the rules for Chinese aliens’ applications for

adjustment of status under section 245, but those applications are

still made under that section. By its terms, then, the eligibility

regulation applies to Zheng’s case, even though it did not apply in

Artigas.

We therefore find that Zheng’s applications to adjust status

were made pursuant to INA section 245, 8 U.S.C. § 1255. Thus, if

Zheng is an “arriving alien,” and if 8 C.F.R. § 1245.1(c)(8) is valid,

then the regulation renders him ineligible for such relief.

B. The “Arriving Alien” Category

The next question facing us is whether Zheng is an “arriving

alien” within the meaning of § 1245.1(c)(8). This phrase is defined

by regulation:

The term arriving alien means an applicant for

admission coming or attempting to come into the

United States at a port-of-entry, or an alien seeking

15

transit through the United States at a port-of-entry, or

an alien interdicted in international or United States

waters and brought into the United States by any

means, whether or not to a designated port-of-entry,

and regardless of the means of transport. An arriving

alien remains such even if paroled pursuant to section

212(d)(5) of the Act, except that an alien who was

paroled before April 1, 1997, or an alien who was

granted advance parole which the alien applied for

and obtained in the United States prior to the alien’s

departure from and return to the United States, shall

not be considered an arriving alien for purposes of

section 235(b)(1)(A)(i) of the Act.

8 C.F.R. § 1.1(q).9

While the first portion of this definition at first seems to

support an intuitive reading of the term “arriving alien”—viz., that

it means “an alien who is physically arriving at the border of the

United States”—in fact the term has a much broader meaning. It

encompasses not only aliens who are actually at the border, but also

aliens who were paroled after their arrival.10 It is therefore clear that

9

Section 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5), authorizes

the Attorney General to parole into the United States “temporarily under

such conditions as he may prescribe only on a case-by-case basis for

urgent humanitarian reasons or significant public benefit any alien

applying for admission to the United States, but such parole of such alien

shall not be regarded as an admission of the alien” and the parole must

be terminated when its purposes have been served. Section

235(b)(1)(A)(i) of the INA, 8 U.S.C. § 1225(b)(1)(A)(i), governs

screening of arriving aliens by immigration officers. As Zheng received

advance parole in 1993, he is not an arriving alien for section

235(b)(1)(A)(i) purposes, and so cannot be summarily removed by an

immigration officer.

10

More broadly, courts and commentators seem to take “arriving

alien” as a catch-all category containing all aliens who have not been

“inspected and admitted” to the United States. See, e.g., Succar v.

Ashcroft, 394 F.3d 8, 16 (1st Cir. 2005) (“Parolees, although they are

physically present in the United States, are treated as if they were at the

border seeking admission.”); Stanley Mailman & Stephen Yale-Loehr,

16

Zheng is an “arriving alien.” He arrived in the United States without

inspection, but then left pursuant to an advance parole. Because he

re-entered with no legal status greater than that of a parolee, he is

simply a paroled arriving alien.

Zheng objects to this characterization on two grounds, both

of them erroneous. First, he maintains that, because he was subject

to Deferred Enforced Departure after April 1990, he was admitted

to the United States and so is not an arriving alien. There is no

support for this contention. DED is not an admission status. Rather,

the President simply ordered the Attorney General to defer

deporting Chinese nationals between April 1990 and January 1994,

because of worries about the effects of the Tiananmen Square

crackdown. See Exec. Order No. 12,711, § 1, 55 Fed. Reg. 13897

(Apr. 11, 1990). This moratorium in enforcement of immigration

laws against some aliens did not transform them into lawfully

admitted immigrants.

Second, Zheng argues that application of the“arriving alien”

classification to him is impermissibly retroactive, because the term

entered the statute with the passage of the Illegal Immigration

Reform and Immigrant Responsibility Act, Pub. L. No. 104-208,

110 Stat. 3009 (1996) (IIRIRA), whereas he has been in the United

States since 1990. Zheng has cited no support for the proposition

that this change in immigration terminology and procedure is

impermissibly retroactive, and we reject it.11

We therefore conclude that Zheng is an “arriving alien”

within the meaning of the regulations. Because he is an arriving

alien in removal proceedings, and because he is attempting to apply

for adjustment of status, he meets all of the criteria of 8 C.F.R.

Adjustment of Status for Paroled Persons: An Endangered Species?,

N.Y. L.J., Feb. 28, 2005, at 3 (equating the term “arriving alien” with

“unadmitted alien”).

11

Zheng cites INS v. St. Cyr, 533 U.S. 289 (2001), for the

proposition that some of IIRIRA’s changes are impermissibly

retroactive. But St. Cyr dealt with a section of IIRIRA that “attache[d]

new legal consequences to events completed before its enactment.” Id.

at 321 (quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999)). The

definition of “arriving alien” does no such thing, and, apart from the

effects of § 1245.1(c)(8), Zheng has not identified any substantive

consequence of application of the new term to him.

17

§ 1245.1(c)(8), and is therefore ineligible to adjust status under the

plain terms of that regulation. It remains for us to decide whether

the regulation is valid.

V. The Validity of the Regulation

Zheng contends that 8 C.F.R. § 1245.1(c)(8), the regulation

that renders him ineligible to adjust status, is invalid. He argues that

the regulation is inconsistent with the text of INA section 245, 8

U.S.C. § 1255(a), and therefore exceeds the Attorney General’s

regulatory authority. We note that 8 U.S.C. § 1252(a)(2)(B)(i) strips

courts of jurisdiction to review “any judgment regarding the

granting of relief under” 8 U.S.C. § 1255. This provision plainly

forecloses review of the Attorney General’s exercise of discretion

in granting adjustment of status in individual cases, but we are

satisfied that it does not foreclose review of the BIA’s interpretation

of the legal standards for eligibility for such adjustment. See

Succar v. Ashcroft, 394 F.3d 8, 19-20 (1st Cir. 2005). The

government does not now dispute that we have jurisdiction to

consider Zheng’s challenge to its regulations.

It appears that amicus curiae American Immigration Law

Foundation (AILF) has made a concerted effort to bring and argue

this claim in many of the Courts of Appeals. The result of this

effort, for our purposes, is that we have two recent well-reasoned

opinions from other Courts of Appeals to consult in ruling on the

validity of the regulation. The first is Succar v. Ashcroft, supra

(Lynch, J.), in which a unanimous panel of the First Circuit struck

down the regulation. A short companion opinion, Rodriguez de

Rivera v. Ashcroft, 394 F.3d 37 (1st Cir. 2005), further explained

Succar.

In contrast, in Mouelle v. Gonzales, Nos. 03-1760 & 03-

3086, — F.3d —, 2005 WL 1790137 (8th Cir. July 29, 2005)

(Beam, J.), the Eighth Circuit rejected Succar’s conclusion and

found that the regulation was within the scope of the Attorney

General’s authority. Judge Bye dissented, stating that he would

follow the reasoning of Succar.12

12

The Fifth Circuit, in an unpublished decision, has rejected an

arriving alien’s request to adjust status despite an amicus brief filed by

the AILF. See Diarra v. Gonzales, No. 04-60097, 2005 WL 1317057

18

A. The Chevron Analysis

A court’s review of a regulation interpreting a statute is

normally subject to Chevron deference. This standard of judicial

review requires a two-step inquiry:

When a court reviews an agency’s construction of the

statute which it administers, it is confronted with two

questions. First, always, is the question whether

Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed

intent of Congress. If, however, the court determines

Congress has not directly addressed the precise

question at issue, the court does not simply impose its

own construction on the statute, as would be

necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer

is based on a permissible construction of the statute.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-43 (1984) (footnotes omitted). However, where Congress

has not merely failed to address a precise question, but has given an

“express delegation of authority to the agency to elucidate a specific

(5th Cir. 2005) (unpublished per curiam opinion). The Diarra panel

merely found that the petitioner was an arriving alien under

§ 1245.1(c)(8), without addressing the validity of that regulation. It is

unclear whether the question of validity was briefed.

Other pending cases in which the AILF has requested or been

granted amicus curiae status include Ramos Bona v. Ashcroft, Nos. 03-

71596 & 03-72488 (9th Cir.); Hong v. Gonzales, No. 04-74034 (9th

Cir.); Roozeky v. Ashcroft, No. 04-71540 (9th Cir.); and Shah v.

Gonzales, No. 05-10587 (11th Cir.). See American Immigration Law

Foundation, S u c c a r-R ela ted Ca ses,

http://www.ailf.org/lac/lac_arrivingalien.htm (last visited August 19,

2005). None of these cases had been decided as of the date of this

opinion.

19

provision of the statute by regulation,” then the agency’s

“legislative regulations are given controlling weight unless they are

arbitrary, capricious, or manifestly contrary to the statute.” Id. at

843-44.

In the first step of the Chevron analysis, courts may

“employ[] traditional tools of statutory construction [to] ascertain[]

that Congress had an intention on the precise question at issue.” INS

v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (quoting Chevron,

467 U.S. at 843 n.9). “Even for an agency able to claim all the

authority possible under Chevron, deference to its statutory

interpretation is called for only when the devices of judicial

construction have been tried and found to yield no clear sense of

congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540

U.S. 581, 600 (2004).

B. Discretion and the Chevron Analysis

The government first argues that we owe § 1245.1(c)(8) even

greater deference than the two-step Chevron structure would

provide. Specifically, the government contends that § 1245.1(c)(8)

is a mere exercise of the discretion that the statute explicitly entrusts

to the Attorney General, and therefore cannot be overruled by a

court. We could not second-guess the Attorney General’s decision

to deny adjustment in a specific instance, see 8 U.S.C.

§ 1252(a)(2)(B)(i), and the government contends that we have no

more authority to question the Attorney General’s decision to

exercise this discretion by across-the-board regulation rather than

by case-by-case decisionmaking.

In support of this argument, the government points to

Attorney General Janet Reno’s explanation of § 1245.1(c)(8) at the

time of its promulgation. Although the regulation governs

eligibility, the explanation was specifically phrased in terms of the

Attorney General’s discretion:

Consistent with Congress’ intent that arriving aliens

. . . be removed in an expedited manner through the

procedures provided in section 235(b)(1) of the Act

[8 U.S.C. § 1225(b)(1)], the Attorney General has

determined that she will not favorably exercise her

discretion to adjust the status of arriving aliens who

20

are ordered removed pursuant to section 235(b)(1) of

the Act or who are placed in removal proceedings

under section 240 of the Act [8 U.S.C. § 1229a]. . . .

If the Service decides as a matter of prosecutorial

discretion, not to initiate removal proceedings but to

parole the arriving alien, the alien will be able to

apply for adjustment of status before the district

director.

62 Fed. Reg. 444, 452 (1997).

As further support for its position, the government cites

Lopez v. Davis, 531 U.S. 230 (2001). In Lopez, the Court

considered a Bureau of Prisons (BOP) regulation denying early

release to prisoners whose offense involved a firearm. Lopez, a

prisoner, argued that this regulation was inconsistent with the

governing statute, which provides that the BOP “may” grant early

release to any prisoner convicted of a “nonviolent offense” who

successfully completed a substance abuse treatment program. See

18 U.S.C. § 3621(e)(2)(B). The Court determined that the BOP was

entitled to exercise its discretionary authority by categorical

regulation, and was not confined to case-by-case assessments. 531

U.S. at 244.

Lopez supports the government’s argument that the Attorney

General may use regulation to define the contours of his discretion.

But Lopez is a double-edged sword, for it does not stand for the

proposition that the statutory grant of discretion to the Attorney

General renders his exercise of that discretion functionally

unreviewable. Instead, Lopez puts this discretionary authority

squarely within the second step of the Chevron framework:

Beyond instructing that the Bureau has discretion to

reduce the period of imprisonment for a nonviolent

offender who successfully completes drug treatment,

Congress has not identified any further circumstance

in which the Bureau either must grant the reduction,

or is forbidden to do so. In this familiar situation,

where Congress has enacted a law that does not

answer “the precise question at issue,” all we must

decide is whether the Bureau, the agency empowered

to administer the early release program, has filled the

21

statutory gap “in a way that is reasonable in light of

the legislature’s revealed design.”

Lopez, 531 U.S. at 242 (quoting NationsBank of N.C., N.A. v.

Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (citing

Chevron, 467 U.S. at 842)); see also Mouelle, 2005 WL 1790137,

at *6.

Thus, we find that, to the extent that the statute grants the

Attorney General the discretion to create categorical eligibility rules

for adjustment of status, those rules are nonetheless subject to

review for reasonableness under the second prong of the Chevron

test.

C. Chevron Step One: Eligibility and Discretion

We turn to the first prong of the Chevron analysis. We do so

because Zheng and amicus argue that the statute does not grant the

Attorney General any discretion to determine eligibility for

adjustment of status. They argue instead that, while the Attorney

General may issue regulations regarding the adjustment process,

and while he certainly has discretion over the final decision to grant

adjustment, Congress has explicitly spoken on the issue of

eligibility for adjustment, and the Attorney General thus has no

power to modify the statutory eligibility requirements. This

argument was endorsed by the First Circuit in Succar, which found

the statute unambiguous and struck down the regulation under the

first prong of the Chevron test. See 394 F.3d at 24, 30.

This argument begins from the text of INA section 245(a),

which, to repeat, provides:

The status of an alien who was inspected and

admitted or paroled into the United States . . . may be

adjusted by the Attorney General, in his discretion

and under such regulations as he may prescribe, to

that of an alien lawfully admitted for permanent

residence if (1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an

immigrant visa and is admissible to the United States

for permanent residence, and (3) an immigrant visa is

immediately available to him at the time his

22

application is filed.

8 U.S.C. § 1255(a). Zheng and amicus argue that the plain text of

this provision allows any alien “inspected and admitted or paroled

into the United States” to make an application to adjust status,

although it leaves the ultimate discretion to grant adjustment in the

hands of the Attorney General.

Zheng’s argument draws further support from the structure

of the adjustment provisions in the INA. Section 245 does not stop

with the general adjustment provision quoted above; rather, it goes

on to exclude several categories of aliens from eligibility for

adjustment. Section 245(c), 8 U.S.C. § 1255(c), provides that

subsection (a) shall not apply to alien crewmen, aliens who accept

unauthorized employment or are in unlawful immigration status,

aliens deportable for engaging in terrorist activities, and certain

aliens with visa defects or other problems with their immigration

status.13 And subsection (e) provides that the Attorney General may

not adjust the status of an alien who marries during removal

proceedings and who seeks adjustment based on that marriage.

The First Circuit found this long list of statutory exclusions

to be compelling evidence that “Congress unambiguously reserved

to itself the determination of who is eligible to apply for adjustment

of status relief.” Succar, 394 F.3d at 24. That court noted that

“when Congress desired to limit the ability of a non-citizen who

might otherwise have been eligible to apply for adjustment of status

under 1255(a), it has done so explicitly by defining several

categories of aliens as not eligible to apply.” Id. at 25. From the

statutory text and structure, the court discerned “two themes”:

First, Congress explicitly rendered ineligible a certain

category of aliens to apply. Second, that category of

excluded aliens included some in removal

proceedings, but Congress chose not to disqualify

from eligibility all of those aliens “inspected and

admitted or paroled” in removal or other judicial

proceedings. In those limited circumstances when the

involvement in proceedings works to hamper an

13

The government does not contend that any of the § 1255(c)

exclusions bar Zheng’s application.

23

individual’s ability to adjust status, Congress has

explicitly said so.

Id. These themes gave the First Circuit a “clear sense of

congressional intent,” id. at 22 (quoting Gen. Dynamics Land Sys.,

540 U.S. at 600), and led it to conclude that the statute

unambiguously precluded the Attorney General from imposing

further restrictions on eligibility to apply for adjustment of status.

The First Circuit conceded that the statute grants the

Attorney General broad discretion to grant or deny adjustment of

status. But it found an important distinction between eligibility to

apply for adjustment and the substantive relief of a grant of

adjustment. In drawing this distinction, the court relied on INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987). In that case, the Supreme

Court considered the asylum standard of “well-founded fear of

persecution,” which the Attorney General had interpreted as

incorporating the withholding of removal standard that the alien be

“more likely than not” to be persecuted. The Court noted that the

Attorney General has discretion to grant asylum to eligible refugees,

but nonetheless rejected his interpretation of the standards for

eligibility. See id. at 443-44, 449. The First Circuit took this to

mean that “[t]he Supreme Court . . . has ruled that the two

questions of discretion as to the ultimate relief and discretion as to

eligibility exclusions are distinct.” Succar, 394 F.3d at 23; see also

INS v. Yang, 519 U.S. 26, 30 (1996) (“While [8 U.S.C.

§ 1251(a)(1)(H)] establishes certain prerequisites to eligibility for

a waiver of deportation, it imposes no limitations on the factors that

the Attorney General . . . may consider in determining who, among

the class of eligible aliens, should be granted relief.”).

The Eighth Circuit, disagreeing with Succar, pointed out that

Cardoza-Fonseca need not be read for the proposition that

discretion to grant substantive relief and discretion to restrict

eligibility are unrelated. Cardoza-Fonseca concerned the Attorney

General’s interpretation of a statutory standard, while the regulation

at issue here “does not purport to interpret statutory eligibility

standards, but rather rests on the discretionary authority that

Congress explicitly gave the Attorney General to grant adjustment-

of-status relief.” Mouelle, 2005 WL 1790137, at *6. The court

asked rhetorically, “[W]hy should the Attorney General be forced

to exercise his discretion through rules that speak only to the

24

ultimate relief rather than eligibility?” Id. at *5. Relying on Lopez,

which allowed an agency to exercise its discretion via general

rulemaking rather than by individual determinations, the Eighth

Circuit concluded that “it makes little sense to invalidate this

regulation simply because it speaks in terms of eligibility.” Id.

While the question is close, we cannot agree with the First

Circuit that the statutory text and structure indicate a clear intent to

preempt the field of eligibility. The fact that Congress declared

some categories of aliens ineligible for adjustment by statute does

not in itself conclusively prove that the Attorney General cannot

declare other categories ineligible by regulation. Indeed, in Lopez,

the prisoner argued “that, by identifying a class of inmates

ineligible for sentence reductions under § 3621(e)(2)(B), i.e., those

convicted of a violent offense, Congress has barred the Bureau from

identifying further categories of ineligible inmates.” 531 U.S. at

239. This argument is essentially identical to that adopted by

Succar: that statutory eligibility standards “cover the field” and

prevent an agency from further regulating eligibility. But the

Supreme Court rejected this argument in Lopez, and we are

unwilling to follow it here.14 See also Mourning v. Family Publ’ns

Serv., Inc., 411 U.S. 356, 372 (1973) (“Respondent argues that, in

requiring disclosure as to some transactions, Congress intended to

preclude the [agency] from imposing similar requirements as to any

other transactions. To accept respondent’s argument would

undermine the flexibility sought in vesting broad rulemaking

authority in an administrative agency.”).

We therefore find that, under the first step of the Chevron

analysis, INA section 245 is ambiguous as to whether the Attorney

14

The First Circuit distinguished Lopez by noting that in section

245, 8 U.S.C. § 1255, “Congress made numerous and explicit policy

choices about who is eligible for adjustment of status relief, who is

ineligible, and of those ineligible, who is nonetheless eligible with

certain application restrictions.” Succar, 394 F.3d at 29. In the Lopez

statute, on the other hand, Congress had identified only a single class of

ineligible inmates: those who had committed violent felonies. While this

distinction is plausible, and section 245 and § 3621(e)(2)(B) certainly

differ in specificity, we respectfully conclude that Succar’s distinction

comes perilously close to rejecting the Supreme Court’s holding in

Lopez.

25

General may regulate eligibility to apply for adjustment of status.

D. Chevron Step Two: Congressional Meaning Versus

Regulatory Restrictions

Even if the statute is ambiguous, and even if the Attorney

General is empowered to issue regulations to fill in gaps in the

statute, those regulations must be “reasonable in light of the

legislature’s revealed design.” NationsBank, 513 U.S. at 257. The

fact that the Attorney General may regulate eligibility does not give

him free rein to issue any eligibility regulations that he chooses;

under the second step of Chevron, those regulations must still be

“based on a permissible construction of the statute.” 467 U.S. at

843.

1. Parole and Removal Proceedings

To deal with the second Chevron prong, we must examine

the statute in more depth. We begin with the fact that section 245(a)

allows the Attorney General to grant adjustment to any alien “who

was inspected and admitted or paroled into the United States.” 8

U.S.C. § 1255(a). Importantly, the statute grants eligibility to adjust

status not only to those aliens who have been lawfully admitted into

the United States, but also to those who have merely been paroled.

Parole is authorized by section 212 of the INA:

The Attorney General may, except as provided in

subparagraph (B) or in section 1184(f) of this title, in

his discretion parole into the United States

temporarily under such conditions as he may

prescribe only on a case-by-case basis for urgent

humanitarian reasons or significant public benefit any

alien applying for admission to the United States, but

such parole of such alien shall not be regarded as an

admission of the alien and 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.

26

8 U.S.C. § 1182(d)(5)(A). Regulations prescribe in more detail who

may be paroled; it appears that the broadest class of parolees

comprises those “whose continued detention is not in the public

interest.” 8 C.F.R. § 212.5(b)(5).

Paroled aliens are not admitted to the United States. 8 U.S.C.

§ 1101(a)(13)(B). Instead, they are treated by the statute as

“applicants for admission.” Id. § 1225(a)(1) (“An alien present in

the United States who has not been admitted . . . shall be deemed

for the purposes of this chapter an applicant for admission.”). The

statute provides that an applicant for admission “shall be detained

for a [removal] proceeding” if an immigration officer determines

that he or she is “not clearly and beyond a doubt entitled to be

admitted.” Id. § 1225(b)(2)(A). Parole is a form of relief from

immigration detention; it is not a form of relief from removal

proceedings, and when the purposes of parole have been served the

parolee must be returned to custody and removal proceedings must

continue. Id. § 1182(d)(5)(A). Thus, the statutory structure seems

to indicate that virtually all parolees will be in removal proceedings.

The parties to this case have not provided us with any

statistics to test our supposition that most parolees are in removal

proceedings. However, the First Circuit noted in Succar that “it was

represented in the briefs before this court that the ‘majority of the

intended beneficiaries of parolee adjustment of status are in

removal proceedings,’” and that the Attorney General did not

dispute that statistic. 394 F.3d at 21.

More compelling than any statistic, however, is the statutory

structure that indicates that parolees will, by default, be in removal

proceedings: any alien “not clearly and beyond a doubt entitled to

be admitted” will be placed in removal proceedings, 8 U.S.C.

§ 1225(b)(2)(A), so any parolee—that is, any alien who has been

inspected but not admitted—will necessarily be in removal

proceedings. We thus do not rely exclusively upon the statistics

provided to the Succar court; our conclusion is informed by the

plain indication of congressional intent. It is clear from the statutory

text that Congress intended for virtually all parolees to be in

removal proceedings.15

15

The Attorney General, in promulgating § 1245.1(c)(8),

suggested that the then-INS might “decide[] as a matter of prosecutorial

discretion, not to initiate removal proceedings but to parole the arriving

27

It is equally clear, of course, that Congress intended that

parolees, as a general class, be eligible for adjustment of status: the

statute provides explicitly that the Attorney General may grant

adjustment to “an alien who was inspected and admitted or paroled

into the United States.” 8 U.S.C. § 1255(a). The statute further

provides that the Attorney General may grant the adjustment “if the

alien makes an application for such adjustment,” id. § 1255(a)(1),

which plainly contemplates that paroled aliens may make such an

application (though of course the Attorney General need not grant

it). Because the large majority of aliens paroled into the United

States will be in removal proceedings, it is difficult to avoid the

conclusion that Congress intended that the mere fact of removal

proceedings would not render an alien ineligible to apply for

adjustment of status. See also Succar, 394 F.3d at 25 (“Congress

chose not to disqualify from eligibility all of those aliens ‘inspected

and admitted or paroled’ in removal or other judicial

proceedings.”).

2. Arriving Aliens and Adjustment of Status

The regulation under which the government wants to exclude

Zheng provides as follows:

alien,” which would then render the alien eligible to adjust status before

the district director. 62 Fed. Reg. 444, 452 (1997). But of course, as

outlined above, the decision to parole an alien is not synonymous with

the decision not to initiate removal proceedings. Instead, as we have

explained, parolees will by default—and by clear congressional

intent—be in removal proceedings. Thus, under the text of the

regulation, DHS’s discretionary decision to parole an alien would not

render the alien eligible for adjustment of status, because the alien would

still be an arriving alien in removal proceedings.

Even assuming, however, that DHS does have the prosecutorial

discretion to dismiss removal proceedings—an assumption that is

questionable given the statutory requirement that parolees “shall be

detained for a [removal] proceeding,” 8 U.S.C. § 1225(b)(2)(A)

(emphasis added)—Congress clearly intended for most parolees to be in

removal proceedings. We thus doubt that DHS’s prosecutorial discretion

will result in many paroled aliens being eligible for adjustment under the

regulation.

28

(c) Ineligible aliens. The following categories of

aliens are ineligible to apply for adjustment of status

to that of a lawful permanent resident alien under

section 245 of the Act:

...

(8) Any arriving alien who is in removal proceedings

pursuant to section 235(b)(1) or section 240 of the

Act [8 U.S.C. § 1225(b)(1) or § 1229a] . . . .

8 C.F.R. § 1245.1. While the statute renders parolees eligible, as a

general rule, for adjustment of status, the regulation appears to have

the opposite effect. The regulation is phrased in terms of “arriving

aliens,” as defined by 8 C.F.R. § 1.1(q), but this term seems to be

essentially synonymous with “applicants for admission” as defined

by 8 U.S.C. § 1225(a)(1). See supra Part V.D.1. In particular,

although the term “arriving alien” might sound like it refers only to

those aliens physically in the process of arriving in the United

States, it also extends to those who arrive and are paroled into the

United States. See 8 C.F.R. § 1.1(q); Succar, 394 F.3d at 17; Part

IV.B, supra. Thus “arriving aliens” appears to encompass most or

all of those aliens who are paroled into the United States, as well as

many of those aliens who are detained by DHS. Indeed, in its

supplemental briefing, the government states that “[a] parolee is an

‘arriving alien’ who has been permitted temporary entry into the

United States, as opposed to a non-parolee ‘arriving alien’ who has

been detained for removal proceedings.”

Similarly, the regulation limits its scope to arriving aliens

who are “in removal proceedings,” but as we have seen this is no

real limitation. At least the majority of aliens paroled into the

United States are in removal proceedings, yet, as explained above,

Congress’s clear intent is that virtually all parolees should be in

such proceedings. See supra Part V.D.1. We are thus faced with a

regulation that renders most aliens paroled into the United States

ineligible to apply for adjustment of status.

The government points out that, under its regulations, some

parolees may be eligible for adjustment of status. Specifically, the

government notes that an arriving alien may renew an adjustment

application that was denied by a district director, if the alien had

filed the denied application pursuant to an earlier admission into the

United States and then renewed the application after returning to the

29

United States under the terms of an advance parole granted in order

to pursue the adjustment application. See 8 C.F.R. § 1245.2(a)(1)(i)

& (ii). This is, however, a very narrow exception.16 Moreover, it

does not comport with Congress’s stated intent that parolees should

be eligible to apply for adjustment of status. The parolees allowed

to adjust status under § 1245.2(a)(1) are only those who are

renewing applications that they made as “admitted” aliens; the

regulation makes no provision for aliens making a first-time

application while in removal proceedings. Thus, under the

government’s reading, paroled aliens may not really apply to adjust

status; they may only renew applications that they made when they

were not “paroled” but “admitted.”

In short, while there may be paroled aliens who are eligible

to apply for adjustment of status under the regulations promulgated

by the Attorney General, the government has not pointed to any

significant category of paroled aliens who would in fact be eligible

to make such an application. For all practical purposes, then, it

appears that § 1245.1(c)(8) renders paroled aliens ineligible to apply

for adjustment of status.

3. Is the Regulation a Permissible Interpretation of the Statute?

We are thus faced with a statute providing that, in general,

aliens paroled into the United States may apply to adjust their

status, and a regulation providing that, in general, they may not. The

16

The government points out that this exception existed prior to

the passage of IIRIRA and the 1997 adoption of § 1245.1(c)(8). In

Matter of Castro-Padron, 21 I. & N. Dec. 379 (BIA 1996), the BIA held

that an IJ had no jurisdiction to entertain an application for adjustment

of status made by an alien in removal proceedings, except in the narrow

circumstances described in the text. The government cites Castro-

Padron for the theory that the § 1245.1(c)(8) exception “is not a new

rule that the INS is imposing.” But prior to 1997, while IJs lacked

jurisdiction to consider applications like Zheng’s, INS district directors

had such jurisdiction. See Castro-Padron, 21 I. & N. Dec. at 380 (“The

applicants can file their adjustment applications with the district director

of the Immigration and Naturalization Service, who has sole jurisdiction

over the application and can act on the application independently of [the

removal] proceedings.”). After 1997, the regulations prevent aliens in

Zheng’s position from applying for adjustment in any forum.

30

conflict between regulation and statute is clear and unmistakable.

Under the second step of the Chevron test, “we must determine

‘whether the regulation harmonizes with the plain language of the

statute, its origin, and purpose. So long as the regulation bears a fair

relationship to the language of the statute, reflects the views of

those who sought its enactment, and matches the purpose they

articulated, it will merit deference.’” Appalachian States Low-Level

Radioactive Waste Comm’n v. O’Leary, 93 F.3d 103, 110 (3d Cir.

1996) (quoting Sekula v. FDIC, 39 F.3d 448, 452 (3d Cir.1994)).

While this is a deferential standard, we think it plain that

§ 1245.1(c)(8) fails to meet it. As we have explained above in some

detail, Congress’s clearly expressed intent was to allow most

paroled aliens to apply for adjustment of status; the regulation’s

effect is to bar almost all such aliens from adjustment. Congress’s

intent is apparent both from the language of the statute, allowing

aliens “paroled into the United States” to apply for adjustment, and

from its structure, allowing such applications as a general matter

and excluding only a few narrow classes from eligibility. This

conclusion is supported by the legislative history. The First Circuit

in Succar examined the history of INA section 245 in some detail,

and came to the conclusion that Congress’s intent in enacting that

section was to spare admitted and paroled aliens the hardship and

expense of having to leave the United States in order to apply for an

adjustment of status to which they were entitled. See Succar, 394

F.3d at 32-34.

We have found that the text of INA section 245 leaves some

ambiguity about whether the Attorney General may determine by

regulation what classes of aliens are eligible to apply for adjustment

of status, thus precluding reliance on the first prong of the Chevron

test. See supra Part V.C. But, as we noted there, the decision is a

close one: the statutory structure and language noted by the Succar

court, while not unambiguous, certainly suggest that Congress

intended to regulate eligibility by statute rather than to leave it in

the Attorney General’s hands. The closeness of the step one

question has some bearing on our step two decision. While the

statute may be ambiguous enough to allow for some regulatory

eligibility standards, it does not so totally abdicate authority to the

Attorney General as to allow a regulation, like § 1245.1(c)(8), that

essentially reverses the eligibility structure set out by Congress.

Chevron, of course, stands for the proposition that

31

administrative agencies receive broad deference in interpreting the

statutes which they are charged with enforcing. We are mindful of

our obligation to respect the decisions of the immigration agencies,

which are informed by long experience and deep specialization in

matters of great national importance. But we have an even higher

obligation to respect the clearly expressed will of Congress, which

in promulgating and amending the INA made its own considered

decisions, balancing the need to swiftly remove undeserving aliens

against the desire to afford every applicant a fair chance to request

any immigration benefits that he or she may deserve.

Given Congress’s intent as expressed in the language,

structure, and legislative history of INA section 245, the

regulation’s effect of precluding almost all paroled aliens from

applying to adjust their status does not “harmonize[] with the plain

language of the statute, its origin, and purpose.” Sekula, 39 F.3d at

452. Because 8 C.F.R. § 1245.1(c)(8) is not based on a permissible

reading of INA section 245(a), 8 U.S.C. § 1255(a), we hold that the

regulation is invalid insofar as it renders parolees ineligible to apply

for adjustment of status. As explained in the following Part, we will

therefore remand Zheng’s case to the immigration authorities for

further consideration.

VI. Application to Zheng

Having held that § 1245.1(c)(8) is invalid

, we now turn to several miscellaneous issues, specific to Zheng’s

case, that the government contends prevent him from applying for

adjustment of status.

A. Zheng’s Parole Status and the Effect of the Notice to Appear

Zheng meets section 245’s requirement that he be an alien

“admitted or paroled into the United States,” 8 U.S.C. § 1255(a),

because he was granted advance parole to return to the country in

1993. See supra Part II.A. The government argues, however, that

his parole was revoked when the INS served him with a Notice to

Appear. The regulations provide that, “[w]hen a charging document

is served on the alien, the charging document will constitute written

notice of termination of parole, unless otherwise specified.” 8

C.F.R. § 212.5(e)(2)(i). Thus, because Zheng’s parole was revoked

32

when a Notice to Appear was served on him, he is said to no longer

be “paroled into the United States” under the terms of section 245.

While this argument is facially plausible, it seems to conflict

with the statutory and regulatory scheme. The Notice to Appear

institutes removal proceedings, but it does not normally revoke

parole in any literal, physical sense. Thus the Notice to Appear in

our record ordered Zheng to appear before an Immigration Judge;

it did not commit him to INS custody. The regulation quoted above

also provides that “[i]f the exclusion, deportation, or removal order

cannot be executed within a reasonable time, the alien shall again

be released on parole unless in the opinion of [a DHS] official . . .

the public interest requires that the alien be continued in custody.”

8 C.F.R. § 212.5(e)(2)(i). Because Zheng does not seem to have

been taken into custody, and because the Notice to Appear merely

commenced removal proceedings rather than executing a removal

order, we are forced to conclude that this exception applied to

Zheng, and that he was free on parole during his removal

proceedings.17 Perhaps the Notice to Appear revoked his parole,

but, if so, he was immediately reparoled.

Because Zheng appears to have remained free on parole

throughout the pendency of removal proceedings, and is free on

parole now, we hold that he qualifies as an “alien paroled into the

United States” under the terms of section 245. We leave to another

day a determination of whether DHS may prevent a paroled alien

from applying for adjustment of status by serving a Notice to

Appear and committing the alien to custody. Zheng argues, with

some force, that the statute uses a past participle, speaking in terms

of aliens “admitted or paroled into the United States,” not merely

aliens currently free on parole. While this word choice is not

conclusive evidence, it does suggest that DHS might be unable to

terminate adjustment eligibility simply by revoking parole.

We also note amicus’s argument that the revised Notice to

Appear charged Zheng only with lack of possession of a valid

unexpired immigrant visa under INA section 212(a)(7)(A)(i)(I), 8

U.S.C. § 1182(a)(7)(A)(i)(I), and that the CSPA specifically

excludes this charge as a basis for denying adjustment of status,

17

The government has never contended that the public interest

requires that Zheng be held in custody, nor is there any evidence in the

record to support such a contention.

33

CSPA § 2(a)(3)(A), 106 Stat. at 1969. We agree with amicus that

it seems anomalous to allow DHS to revoke Zheng’s eligibility to

adjust status by charging him under a section of the INA that the

CSPA renders inapplicable.

B. Zheng’s Adjustment Applications

Zheng presses two adjustment applications. One is based on

his approved employment-based immigrant visa petition. Zheng’s

employment-based adjustment application was first raised in his

motion to reopen before the BIA. As far as we can determine,

neither the DHS, the IJ, nor the BIA has considered this application.

Because we have found that Zheng is eligible to apply for

adjustment, we will remand this application for further

consideration by the proper authorities. See infra Part VI.C.

Zheng’s second adjustment claim is a renewal of his

application to adjust status pursuant to the CSPA, which was

previously denied because Zheng had submitted fraudulent

documents in support of his claim. Indeed, the 1999 denial of

Zheng’s adjustment petition is what precipitated these removal

proceedings.

We are sympathetic to the government’s position that “the

statute does not mandate that Zheng, or any other alien, be given a

second chance to apply for adjustment of status.” But the BIA

explicitly rejected Zheng’s CSPA adjustment application, not

because it was duplicative, but because the Board found that Zheng,

as an arriving alien in removal proceedings, is ineligible for

adjustment of status. We are bound to review the agency’s decision

based solely on the stated grounds for that decision. See SEC v.

Chenery Corp., 318 U.S. 80, 95 (1943); Li v. Attorney General, 400

F.3d 157, 163 (3d Cir. 2005). Here, the BIA’s stated basis for

denying relief was the § 1245.1(c)(8) eligibility regulation, which

we have found invalid.

As the First Circuit put it in the companion case to Succar:

Since the agency action . . . cannot be

sustained on the stated grounds, the appropriate

remedy is to remand to the BIA for further

proceedings consistent with the holding [on the

eligibility issue]. We do not address any other issues.

34

We do not, for example, address the issue of

whether Rivera’s application for adjustment of status

is somehow number-barred because she already filed

one earlier application, which was denied. None of

the IJ, the BIA, or the government in its brief to this

court have suggested that any such number bar exists.

Rodriguez de Rivera, 394 F.3d at 40. Similarly, here, although the

government has in its brief argued the unfairness of giving Zheng

multiple chances to submit credible evidence of his CSPA claim, it

has not pointed to any provision of the statute or regulations that

would bar Zheng from renewing his application for adjustment of

status. We must therefore remand that application to the

immigration authorities.

C. Who Has Jurisdiction Over Zheng’s Application?

In order to remand this case, we must determine who has

jurisdiction to hear Zheng’s applications for adjustment of status.

Jurisdiction over applications to adjust status is allocated by

regulation:

An alien who believes he or she meets the eligibility

requirements of section 245 of the Act [8 U.S.C.

§ 1255] or section 1 of the Act of November 2, 1966

[viz., the Cuban Refugee Adjustment Act], and [8

C.F.R.] § 1245.1 shall apply to the director having

jurisdiction over his or her place of residence unless

otherwise instructed in 8 CFR part 1245, or by the

instruction on the application form. After an alien,

other than an arriving alien, is in deportation or

removal proceedings, his or her application for

adjustment of status under section 245 of the Act . . .

shall be made and considered only in those

proceedings. An arriving alien, other than an alien in

removal proceedings, who believes he or she meets

the eligibility requirements of section 245 of the Act

. . . and § 1245.1 shall apply to the director having

jurisdiction over his or her place of arrival.

35

8 C.F.R. § 1245.2(a)(1).

This regulation appears to create three categories of

applicants. First, there is a broad catch-all category of aliens who

believe they are eligible. These aliens may apply for adjustment to

the district director18 with jurisdiction over their residence. Second,

aliens who are not arriving aliens, but who are in removal

p r o c e e d in g s , m a y a p p ly f o r a d j u s tm e n t in t h o s e

proceedings—ordinarily, we expect, to the IJ with jurisdiction over

the removal proceedings. Third, arriving aliens who are not in

removal proceedings may apply for adjustment to the district

director with jurisdiction over their place of arrival.

This list seems to omit a fourth category, arriving aliens who

are in removal proceedings. Such an omission is, of course,

perfectly consistent with § 1245.1(c)(8), which renders that class of

aliens ineligible to apply for adjustment of status. Because we have

found the eligibility regulation invalid, however, we must consider

the impact of our decision on the jurisdictional regulation:

if arriving aliens in removal proceedings are eligible to adjust

status, then someone must have jurisdiction to consider their

applications.

In a letter dated February 4, 2005, we asked counsel to

address the question of who should have jurisdiction to hear

adjustment petitions of arriving aliens in removal proceedings if we

were to find that such aliens were eligible to adjust status.

Following oral argument, the parties submitted supplemental

18

At the time this regulation was enacted, the district director was

a local official of the INS. With the enactment of the Homeland Security

Act of 2002, the term’s meaning has become inscrutable. See 8 C.F.R.

§ 1.1(o) (“On or after March 1, 2003, pursuant to delegation from the

Secretary of Homeland Security or any successive re-delegation, the

terms [‘director’ or ‘district director’] mean, to the extent that authority

has been delegated to such official: service center director; special agent

in charge; field office director; district director for services; district

director for interior enforcement; or director, field operations.”). We use

“district director” to designate whatever DHS official is now responsible

for reviewing applications to adjust status, probably a USCIS District

Director. It appears that adjustment of status applications are now made

at district offices of the USCIS. See, e.g., USCIS Philadelphia Field

Office, About Us, http://uscis.gov/graphics/fieldoffices/

philadelphia/aboutus.htm (last visited August 6, 2005).

36

briefing on this and other questions. Zheng’s position is that the

Immigration Judge responsible for removal proceedings should

have jurisdiction over his adjustment applications. The

government’s position is less clear, but it appears to ask us to “leave

to the Attorney General the determination of who has jurisdiction

over such applications.”

The simplest reading of § 1245.2(a)(1) in light of our

eligibility holding is that aliens in Zheng’s position fall into the

catch-all category of aliens who may apply to the USCIS district

director responsible for their place of residence. This reading is

bolstered by the fact that, prior to the enactment of the eligibility

regulation that we have invalidated today, an arriving alien in

removal proceedings was required to file his or her adjustment

applications with the INS district director rather than the IJ hearing

the removal proceedings. See Matter of Castro-Padron, 21 I. & N.

Dec. 379, 380 (BIA 1996) (“The applicants can file their adjustment

applications with the district director of the Immigration and

Naturalization Service, who has sole jurisdiction over the

application and can act on the application independently of [the

removal] proceedings.”); see also supra note 16.

In Succar and Rodriguez de Rivera, the First Circuit

invalidated § 1245.1(c)(8) and remanded to the BIA without

explaining who had jurisdiction to hear petitioners’ adjustment

applications. See Succar, 394 F.3d at 36; Rodriguez de Rivera, 394

F.3d at 40. Consistent with our reading above, commentators seem

to have assumed that the district director will have exclusive

jurisdiction to hear adjustment applications from arriving aliens in

removal proceedings. But other conclusions are possible:

As a consequence [of Succar], parolees in

proceedings are currently eligible to adjust status

before USCIS notwithstanding the fact that the

individual is in proceedings. Moreover, it is reported

that at least some of the immigration judges in the

Boston immigration court are also accepting

adjustment applications from “arriving alien”

parolees and adjudicating them.

Sarah Ignatius & Elisabeth S. Stickney, Immigration Law & the

Family § 8:35 (database updated 2005).

37

Because the plain text of § 1245.2(a)(1) appears to grant the

district director the jurisdiction to hear adjustment of status

applications from arriving aliens in removal proceedings, and

because neither party has provided any convincing argument for

granting jurisdiction to any other official, we tentatively conclude

that the USCIS district director for Philadelphia should have

jurisdiction over Zheng’s adjustment application. Nonetheless, we

will remand to the BIA for further consideration; if the parties

agree, or the BIA is convinced, that the IJ has jurisdiction to hear

Zheng’s application, then the Board may remand it to the IJ rather

than to the district director.

VII. Conclusion

For the reasons set forth in Part II, we will deny Zheng’s

petition for review insofar as it relates to his motion to reopen

asylum proceedings. But because 8 C.F.R. § 1245.1(c)(8)

contradicts the clear language and expressed intent of INA section

245(a), 8 U.S.C. § 1255(a), we find that the regulation is not a

permissible exercise of the Attorney General’s discretion.

Therefore, as an alien paroled into the United States, Zheng is

eligible to apply for adjustment of status, which the Attorney

General may grant or deny in his discretion, and we will grant the

petition for review on that basis. We will remand this case to the

BIA for further proceedings consistent with this opinion. On

remand, the BIA must determine who has jurisdiction over Zheng’s

adjustment applications.

38