By Stanley Mailman and Stephen Yale-Loehr**

In the face of a regulation to the contrary, the U.S. Court of Appeals for the First Circuit held on January 5, 2005 that persons paroled into the United States may apply to adjust their status to permanent residence even though they are in removal proceedings. Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). The decision, important for its holding, is a useful window on adjustment of status, the process by which a significant number of immigrants now obtain the “green card.” The case also illustrates the jurisdictional problems applicants face when they litigate an adjustment denial.

Like the noncitizens discussed in our column, Supreme Court Weighs Indefinite Detention of Aliens, N.Y.L.J., Oct. 25, 2004, at 3, parolees, although physically here, have not been admitted to the United States. Until the Supreme Court held otherwise last month in Clark v. Martinez, a paroled noncitizen could be taken into custody and held indefinitely. Parolees have long enjoyed some immigration benefits given by statute. One of these is the right to apply for adjustment of status to permanent residence. That right, jeopardized by a regulation issued in 1997, is discussed below.

Adjustment of Status

Adjustment of status entered our immigration law in 1952 with the then newly codified Immigration and Nationality Act (INA), as section 245, 8 U.S.C. § 1255. It gave the Attorney General discretion to adjust to permanent residence the status of those already admitted to the United States as bona fide nonimmigrants if they were immediately eligible for an immigrant visa. Until then, such persons had to leave the United States, obtain an immigrant visa at a U.S. consular or diplomatic post abroad, and return for inspection and admission. As a matter of discretion, some of those applicants were permitted “pre-examination,” a procedure that allowed them to get their immigrant visa in Canada, and their eligibility for readmission checked before they left the United States. While pre-examination eased the hardship for individuals, it caused a substantial expenditure of resources by the Justice and State departments.

To benefit more immigrants and further ease the burden on the administrative agencies, Congress substantially broadened section 245 in 1960 by revising the threshold requirement. It no longer limited adjustment to those who were admitted as bona fide nonimmigrants. Instead, it allowed the status of any qualified person who was “inspected and admitted or paroled into the United States [to be] adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe. . . . ” At the same time it specifically barred crewmen, the first of a succession of categories that Congress has precluded from adjustment, like applicants, with certain exceptions, who have taken unauthorized employment or have failed to maintain lawful status. See INA § 245(c), 8 U.S.C. § 1255(c). However, the threshold requirement has remained exactly the same to this day: admission or parole into the United States. In 1997, the Attorney General grafted onto this regime the regulation that specifically bars from adjustment “[a]ny arriving [unadmitted] alien ‘who is in removal proceedings. . . .”

The ‘Succar’ Case

Wissam Succar, a Lebanese citizen, arrived at Miami International Airport on October 21, 1998 en route from Lebanon to Panama. He approached an immigration officer, indicated that he wished to apply for asylum, and was taken into government custody. A month later, an asylum officer interviewed Succar, determined that he had a credible fear of persecution, and found that the facts as he gave them could establish his eligibility for asylum. He was then placed in removal proceedings and released from custody on parole.

At a hearing on January 19, 2000, Succar admitted that he was deportable and renewed his application for asylum and related remedies. After a trial on the merits, the immigration judge denied the relief requested, and Succar appealed to the Board of Immigration Appeals (BIA or Board). While that appeal was pending, Succar married a U.S. citizen whose green card petition on his behalf was approved. Succar then moved the BIA to remand his case to the immigration judge for consideration of an application for adjustment under INA § 245. Although the BIA did remand, the immigration judge ultimately denied the application, holding that the 1997 regulation deprived him of authority to grant that relief, as Succar, still on parole was “an arriving alien.” Noting that this regulatory bar was limited to those in removal proceedings, the immigration judge offered to terminate those proceedings, if the government so moved, so that the application could be considered by the district director, an administrative official authorized to consider adjustment applications by arriving aliens who are not in removal proceedings. But the government declined and the BIA denied the ensuing appeal. However, a unanimous panel of the First Circuit vacated the BIA’s decision, holding that the regulation impermissibly took away from the petitioner what the statute explicitly gave, an opportunity to have his adjustment application considered on an individualized basis.

To reach its decision, the Succar court had to traverse several of what have become standard issues in immigration litigation. Lawyers who seek judicial review of an adjustment denial worry first about 8 U.S.C. § 1252(a)(2)(B)(i), part of the 1996 court-stripping provisions, which deprives a federal court of jurisdiction to review “any judgment regarding the granting of relief under section 1255 [INA § 245]. . . of this title.” The government invoked that provision here, arguing that the regulation challenged was promulgated by the Attorney General as a discretionary decision that arriving aliens as a class do not merit section 245 relief. But the Court of Appeals saw the issue otherwise. In the court’s view, the purpose of the 1996 jurisdictional bar was to shield from judicial review only decisions regarding the propriety of adjusting an individual’s status. Here, the regulation barred a whole class, precluding the individual from even applying for that relief and preventing the exercise of discretion. The validity of that regulation presented a classic issue for the court to decide, and one within its federal question jurisdiction.

A ‘Chevron’ Analysis

Whether the regulation was invalid as inconsistent with the statute required a Chevron analysis of INA § 245. See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Under Chevron, if a court finds the statute ambiguous or that Congress has left a gap for the agency to fill, the court must defer to the agency’s interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843-44. But if the court finds the statute unambiguous, either on its face or after using the tools of judicial construction, it relies on its own reading. The Succar court held that in this part of the Chevron (Stage I) analysis, a court may look to the devices of construction, at least to confirm the clarity of the statute.

First, the Succar court found that while INA § 245 places the ultimate decision within the discretion of the Attorney General, it just as plainly specifies who is eligible for consideration and who is not. This is not a case of congressional silence; section 245 clearly speaks to the matter of eligibility. “The Attorney General cannot promulgate a regulation that categorically excludes from application for adjustment of status a category of otherwise eligible aliens; this is contrary to congressional intent. . . .” Succar, 394 F.3d at 24.

The Succar court also pointed to certain interpretive clues. The decision noted that the text and history of section 245 show how carefully this provision was calibrated. Over the years Congress has extended the list of categories barred from adjusting status. See INA § 245(c), 8 U.S.C. § 1255(c). Moreover, in limited circumstances, it has provided exceptions to those bars. See INA § 245(i), 8 U.S.C. § 1255(i) (applying to those for whom certain visa petitions or labor certifications were filed by a given deadline and including even those who were neither admitted nor paroled). Clearly knowing how to impose these restrictions or to open up eligibility, Congress has refrained from barring parolees from eligibility simply because they are in removal proceedings.

The Succar decision also noted that under the statutory scheme, parolees are inadmissible and subject to removal proceedings, and that in fact most parolees are placed in removal proceedings. Why would Congress have made paroled persons eligible for 245 adjustment if it meant for the Attorney General to automatically bar them? And by implication, if the Attorney General can unilaterally bar parolees from section 245 relief, although they are eligible by statute, might he not also bar whole categories of applicants for asylum although they are otherwise eligible? Finally, the decision pointed out that the 1997 regulation departed from a long-standing administrative practice and therefore was entitled to considerably less deference.

‘Tibke v. INS’

Curiously, Succar made no mention of Tibke v. INS, 335 F.2d 42 (2d Cir. 1964). Tibke, who had been admitted as a lawful permanent resident, was facing deportation because he had been convicted of two crimes. However, as the spouse of a U.S. citizen, who petitioned on his behalf, he sought to avoid deportation by regularizing his status. In his deportation proceeding, he requested a waiver of the conviction in connection with an application for adjustment of status. The government resisted the application on the ground that adjustment was limited to those who last entered as a nonimmigrant. As Tibke’s counsel urged, Congress had just lifted that limitation from the statute, instead permitting adjustment to those either “admitted” (in any capacity) or paroled. Still, the judge and the BIA held that someone previously admitted as a permanent resident could not re-adjust to the same status. The Second Circuit disagreed, noting the plain language of section 245, the clear intention of Congress to broaden the class of persons eligible, and its motives in doing so. Those factors also figure in Succar. Tibke, however, also rests on the remedial purpose of the 1960 statute, if only as a makeweight. The BIA eventually acquiesced in the court’s decision, but the government continued to resist its principle, as it is likely to resist Succar.

Implied Restrictions

The Succar court also seemed to overlook another argument, one that the BIA featured in a 1977 decision. There the Board said that it was “reluctant to read implied restrictions into the statute, particularly in the context of a deportation proceeding. It is settled doctrine that deportation statutes must be construed in favor of the alien. ‘Since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.’” Matter of Chartier, 16 I. & N. Dec. 284, 287 (BIA 1977) (holding that the intracompany transferee provision does not require a legal entity abroad, quoting Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975), and citing several Supreme Court decisions). This principle of lenity in construing removal statutes seems invoked less often now, perhaps considered trumped by Chevron. But that is a matter to be explored another day.

Meanwhile, although immigration appeals to the courts continue to burgeon, they remain hard to win.
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* This article originally appeared in the February 28, 2005 issue of the New York Law Journal. Copyright © 2005 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.