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No. 05-1092

In the Supreme Court of the United States

JEAN MOUELLE AND GERMAINE MOUELLE, PETITIONERS

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
ALISON R. DRUCKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Under Section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a), "[t]he 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 certain conditions are satisfied. Under 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8) (2005) (repealed May 12, 2006), an "arriving alien who is in removal proceedings," including one who has been paroled into the United States, is not eligible to apply for adjustment of status. The question pre sented is whether the regulations, as applied to paroled aliens, are inconsistent with the statute and therefore invalid.

In the Supreme Court of the United States

No. 05-1092

JEAN MOUELLE AND GERMAINE MOUELLE, PETITIONERS

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 416 F.3d 923. The decisions of the Board of Immigration Appeals denying petitioners' motion to reopen (Pet. App. 15a-16a) and denying petitioners' mo tion to reconsider (Pet. App. 17a-19a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 29, 2005. A petition for rehearing was denied on October 26, 2005 (Pet. App. 14a). On January 18, 2006, Justice Thomas extended the time within which to file a petition for a writ of certiorari to and including Febru ary 23, 2006, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Section 245 of the Immigration and Nationality Act (INA), 8 U.S.C. 1255 (2000 & Supp. III 2003), autho rizes the Attorney General, in the exercise of discretion, to adjust an eligible alien's status to that of a lawful per manent resident alien. "[A]s an exercise of discretion," 62 Fed. Reg. 10,326 (1997), the Attorney General deter mined, through regulations most recently codified at 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8) (2005) (repealed May 12, 2006), that an "arriving alien who is in removal pro ceedings" is not eligible to apply for adjustment of sta tus.1 An "arriving alien" is "an applicant for admission coming or attempting to come into the United States at a port-of-entry" and, with limited exceptions, "remains such even if paroled pursuant to section 212(d)(5) of the [INA]." 8 C.F.R. 1.1(q), 1001.1(q) (2005).2 The regula tions were adopted to prevent aliens who arrive illegally in the United States from "delay[ing] their removal through an application for adjustment of status," 62 Fed. Reg. 452 (1997), and to help "preserve the integrity of the visa issuance process," id. at 10,326, by requiring an arriving alien "to return to his or her country of resi dence and request [an immigrant visa] through the con sular process," id. at 452.

The regulations that make arriving aliens in removal proceedings ineligible for adjustment of status have been challenged by petitioners and other aliens as incon sistent with Section 245 of the INA insofar as they apply to those aliens in removal proceedings who have been granted parole from custody. Those challenges rely on the language in Section 245(a) that gives the Attorney General discretion to adjust the status of aliens "in spected and admitted or paroled into the United States" if certain conditions are satisfied. 8 U.S.C. 1255(a) (em phasis added).3 Four courts of appeals have held that the regulations are inconsistent with the statute, and therefore invalid, because they remove the ability to obtain adjustment of status for some aliens who are eli gible to apply under Section 245(a) of the INA. Scheerer v. United States Attorney General, No. 04-16231, 2006 WL 947680 (11th Cir. Apr. 13, 2006); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). Two courts of appeals have upheld the regulations, finding that the denial of adjustment of sta tus to the particular category of arriving aliens who are placed in removal proceedings but released on parole is a valid exercise of the Attorney General's discretionary authority to grant or deny adjustment of status. Momin v. Gonzales, No. 05-60119, 2006 WL 1075235 (5th Cir. Apr. 24, 2006); Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005) (decision below).

Recognizing that "the conflicting court of appeals decisions * * * will result in inconsistent application of the adjustment of status laws," the Attorney General and the Secretary of Homeland Security have deter mined that "having rules that apply nationwide is pref erable to continuing to litigate the validity of [the regula tions]." 71 Fed. Reg. 27,587 (2006). DHS and DOJ have therefore "undertaken to resolve the [circuit] con flict," ibid., by issuing interim rules, effective May 12, 2006, id. at 27,585, that repeal 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8). 71 Fed. Reg. at 27,591. The effect of the repeal is to allow the designated administrative decision maker to "exercise discretion to grant applications for adjustment of status * * * by aliens who have been paroled into the United States and who have been placed in removal proceedings." Id. at 27,588. However, the interim rules make clear that, as was true under the regulations in effect prior to 1997, such aliens will ordi narily not be able to submit or renew applications for adjustment of status in the removal proceedings them selves. Id. at 27,587-27,588. Instead, consistent with longstanding limitations on the jurisdiction of an immi gration judge (IJ), id. at 27,586, 27,587-27,588, adjust ment applications filed by arriving aliens (including those released on parole) who are in removal proceed ings will in most cases be adjudicated by United States Citizenship and Immigration Services (USCIS) in DHS. Id. at 27,587-27,588, 27,591-27,592 (amending 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1)).4

2. Petitioners, Jean Mouelle (Jean) and Germaine Mouelle (Germaine), are husband and wife and citizens of the Republic of Congo. In 1989, Jean entered the United States as a J-1 exchange visitor to study at the University of Idaho. Germaine entered the United States as the dependant of a J-1 exchange visitor. When their non-immigrant visas expired, petitioners did not return to the Republic of Congo. Pet. App. 1a-2a.

In May 1996, Jean Mouelle filed an application with INS for asylum and withholding of removal, naming his wife as a dependent. On May 31, 1997, while the ap plication was pending, petitioners made a brief trip to Canada. Before departing, they sought and received advance parole, which allowed them to return to the United States to pursue their application for asylum. They returned on June 1, 1997, at Eastport, Idaho. Pet. App. 2a.

3. a. In April 1998, the INS commenced removal pro ceedings against petitioners. They were charged with inadmissibility under 8 U.S.C. 1182(a)(7)(A)(i)(I) and (B)(i)(II), for failing to present proper documentation upon reentering the United States in June 1997. Peti tioners admitted that they were inadmissible, but re newed their application for asylum and withholding of removal. The IJ found petitioners inadmissible, denied their application for asylum and withholding of removal, and granted them the privilege of voluntary departure, subject to the posting of a bond. Pet. App. 2a-3a; Admin. R. 178-198.

In February 2003, the Board of Immigration Appeals (BIA) affirmed the IJ's decision. It revoked the privi lege of voluntary departure, however, because petition ers had failed to post the required bond. Pet. App. 3a; Admin. R. 114-115.

b. While their appeal was pending before the BIA, petitioners had each sought an employment-based visa, by filing an I-140 Immigrant Petition for Alien Worker. In November 2001, Jean's petition was denied; in Au gust 2002, Germaine's petition was granted. In May 2003, after the BIA had affirmed the IJ's decision, peti tioners filed a motion with the BIA to reopen the re moval proceedings. Petitioners requested a remand so that the IJ could adjust their status under Section 245(i) of the INA, 8 U.S.C. 1255(i), based on Germaine's ap proved visa petition. Pet. App. 3a-4a.5

In July 2003, the BIA denied the motion to reopen. Pet. App. 15a-16a. Citing 8 C.F.R. 1245.1(c)(8), it held that petitioners were "ineligible for adjustment of status because they are 'arriving aliens' in removal proceed ings." Pet. App. 16a. Petitioners filed a motion for re consideration, which the BIA denied. Id. at 17a-19a.

4. Petitioners petitioned for review of the BIA's affirmance of the IJ's decision and its denial of petition ers' motion to reopen. Pet. App. 4a. The court of ap peals consolidated the petitions and, in a divided opinion, denied them. Id. at 1a-13a.

a. The court of appeals first rejected petitioners' contention that the IJ violated their due process rights during the removal proceedings. Pet. App. 5a. The court held that petitioners failed to present that claim to the BIA, thereby depriving the court of jurisdiction to consider it, and, in any event, could not demonstrate prejudice. Ibid.

The court of appeals next rejected petitioners' con tention that, because they were granted advance parole before leaving for Canada, they were not ineligible for adjustment of status under 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8), and that the BIA therefore erred in deny ing their motion to reopen. Pet. App. 6a-7a; see id. at 5a n.6. The court explained that the regulations render an "arriving alien who is in removal proceedings" ineligible for adjustment of status; that, under 8 C.F.R. 1.1(q) and 1001.1(q), "arriving alien" includes an applicant for ad mission who has been paroled into the United States; that the exception in Sections 1.1(q) and 1001.1(q) for aliens granted advance parole "is for the limited purpose of 8 U.S.C. § 1225(b)(1)(A)(i), which requires immigra tion officers to order some arriving aliens immediately removed 'without further hearing or review'"; and that Sections 1.1(q) and 1001.1(q) do not "allow aliens arriv ing with advance parol[e] to shed their arriving-alien status for the purpose of adjusting immigration status." Pet. App. 6a-7a.

The court of appeals then rejected petitioners' con tention that the BIA should have granted their motion to reopen on the alternative ground that 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8) are inconsistent with Section 245 of the INA and therefore invalid. Pet. App. 7a-13a. "While Congress surely did speak to eligibility in [Sec tion 245]," the court explained, "it left the question whether adjustment-of-status relief should be granted to the Attorney General's discretion." Id. at 8a. The court thus held that Congress has not "directly spoken to the precise question at issue," and that the regula tions therefore are not invalid under the first step of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Pet. App. 8a (quoting Chevron, 467 U.S. at 842). The court then held that the "gap-filling regulations" were "reasonable in light of the legislature's revealed design," and thus valid under the second step of Chevron. Id. at 12a (quoting Lopez v. Davis, 531 U.S. 230, 242 (2001)). The court explained that applications for adjustment of status "would neces sarily lengthen removal proceedings (much like they have here), and expediency was one of the goals of the 1996 amendments to the [INA]." Id. at 12a-13a.

b. Judge Bye filed a dissenting opinion. Pet. App. 13a. He would have held 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8) invalid for the reasons identified by the First Circuit in Succar, supra. Pet. App. 13a.

ARGUMENT

Petitioners contend (Pet. 10-26) that 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8) are inconsistent with Section 245 of the INA and therefore invalid. The court of ap peals correctly held otherwise; its decision has no pro spective significance, because the regulations have been repealed; and this case would not be a suitable vehicle for deciding the validity of the regulations in any event, because petitioners appear to be ineligible for adjust ment of status for independent reasons. This Court's review is therefore unwarranted. The Court may wish, however, to grant the petition for a writ of certiorari, vacate the judgment of the court of appeals, and remand the case for further consideration in light of the interim rules that repeal the challenged regulations.

1. a. Under Section 245 of the INA, the status of a paroled alien "may be adjusted by the Attorney Gen eral[] in his discretion." 8 U.S.C. 1255(a). As the court of appeals correctly recognized, "[a]dministrators vested with such discretion may exercise [it] by rule [rather than] on a case-by-case basis." Pet. App. 9a. Upholding a different regulation reflecting the exercise of the At torney General's discretion under Section 245 of the INA, Judge Friendly observed that there is no "general principle forbidding an administrator, vested with dis cretionary power, to determine by appropriate rule making that he will not use it in favor of a particular class on a case-by-case basis." Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970). This Court has con firmed that, when a statute grants discretion to an ad ministrative decisionmaker, "the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability." Lopez v. Davis, 531 U.S. 230, 243-244 (2001) (quoting American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991)).

The regulations at issue here are therefore valid as long as they satisfy the familiar two-part test of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The court of appeals correctly held that they do. Pet. App. 7a-13a. Because Section 245(a) of the INA "is silent on the manner in which the Attor ney General is to exercise his discretion," Momin v. Gonzales, No. 05-60119, 2006 WL 1075235, at *11 (Apr. 24, 2006), Congress has not "directly spoken to the pre cise question at issue," Chevron, 467 U.S. at 842-viz., whether the Attorney General may exercise his discre tion by issuing a regulation that makes adjustment un available for a category of similarly situated aliens. And the regulations reflect "a reasonable policy choice," id. at 845, because they were adopted to prevent aliens who arrive illegally in the United States and are placed in removal proceedings from "delay[ing] their removal through an application for adjustment of status," 62 Fed. Reg. 452 (1997), and to help "preserve the integrity of the visa issuance process," 62 Fed. Reg. 10,326 (1997), by requiring an arriving alien "to return to his or her country of residence and request [an immigrant visa] through the consular process," id. at 452.

b. The regulations at issue in this case are analyti cally indistinguishable from the regulation upheld by this Court in Lopez v. Davis, supra. In Lopez, the Court held that a Bureau of Prisons (Bureau) regulation cate gorically denying early release to prisoners convicted of a firearm offense was consistent with a statute providing that the Bureau, in its discretion, may reduce the prison term of an inmate convicted of a nonviolent felony who successfully completes drug treatment. The Court agreed with the Bureau that the regulation was a per missible exercise of discretion "within the class of in mates who satisfy the statutory prerequisites for early release"-i.e., those who were convicted of a nonviolent offense and successfully completed drug treatment. 531 U.S. at 239 (quoting Bureau's brief).

So too here. Section 245(a) of the INA grants the Attorney General discretion to adjust the status of aliens who were "paroled into the United States" and satisfy certain conditions, 8 U.S.C. 1255(a), and the reg ulations merely provide that the Attorney General will not favorably exercise that discretion with respect to a subcategory of such aliens: those who are in removal proceedings. As in Lopez, the regulations are thus a permissible exercise of discretion "within the class of [aliens] who satisfy the statutory prerequisites for [ad justment of status]," 531 U.S. at 239-i.e., those who were paroled and satisfy the other conditions in Section 245(a).

c. As the Fifth Circuit observed in upholding the regulations at issue here in Momin, supra, the four courts of appeals that have held the regulations invalid "all share a common trait": they "equate the entire class of parolees with the sub-class of parolees who are sub ject to removal proceedings." 2006 WL 1075235, at *12. Those courts "understand the regulation[s] to be in con flict with the statute" because "the regulation[s] make[] the latter class ineligible for relief and the statute makes the former class eligible for relief." Ibid. It is that un derstanding that "forms the core of the rationale for finding the regulation[s] invalid." Ibid.

As both the Fifth Circuit (in Momin) and the Eighth Circuit (in the decision below) correctly recognized, however, there is no legal or evidentiary basis for that understanding. 2006 WL 1075235, at *12; Pet. App. 12a n.9. On the contrary, the INA does not "mandate that parolees must be placed into removal proceedings," and in fact it "clearly provide[s] that at least some parolees will not be placed into removal proceedings." Momin, 2006 WL 1075235, at *13. Indeed, according to DHS statistics, only a small percentage of parolees who en tered the United States during a recent 12-month period (fiscal year 2003) have been placed in removal proceed ings. See Resp. Supp. C.A. Br. 13 n.1. Even if "most aliens paroled into the United States were placed in re moval proceedings," however, it would still be the case that Section 245 of the INA "does not show a congressio nal intent to vest a few, most, or all paroled aliens with the right to adjust their status." Pet. App. 14a n.9. In stead, "[r]elief remains discretionary." Ibid.

2. Review by this Court would be unwarranted even if the decision below were incorrect, because the regula tions challenged by petitioners, and upheld by the court of appeals, have been repealed, effective May 12, 2006. 71 Fed. Reg. 27,585. That action was taken in interim rules issued by DHS and DOJ, both of which concluded that "having rules that apply nationwide is preferable to continuing to litigate the validity of [the regulations]." Id. at 27,587. By repealing the regulations, the interim rules themselves "resolve the conflict" in the circuits (ibid.) that petitioners have asked this Court to resolve (Pet. 10-15). And because the effect of the repeal is to allow USCIS to "exercise discretion to grant applica tions for adjustment of status * * * by aliens who have been paroled into the United States and * * * placed in removal proceedings" (71 Fed. Reg. at 27,588), the interim rules answer the question presented in the peti tion: whether the Attorney General may "categorically prohibit paroled aliens in removal proceedings from making such an application" (Pet. i). Accordingly, the question whether the regulations challenged by petition ers are valid has no prospective significance.

3. Even if there were some reason to decide the va lidity of the regulations despite their repeal, this case would not be a suitable vehicle for doing so, because pe titioners appear to be ineligible for adjustment of status without regard to 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8). That is true for two independent reasons.

First, the record indicates that petitioners do not satisfy the requirements of Section 245(i) of the INA, the provision under which they sought to adjust their status. Under Section 245(i) and its implementing regu lations, an applicant must be a beneficiary of a petition for an immigrant visa that was filed "on or before April 30, 2001," 8 U.S.C. 1255(i)(1)(B)(i), and was "approvable when filed," 8 C.F.R. 245.10(a)(1)(i)(A). A petition is "approvable when filed" if, as of the date of filing, it was "properly filed, meritorious in fact, and non-frivolous." 8 C.F.R. 245.10(a)(3). A petition is therefore "approv able when filed" if it is denied "due to circumstances that have arisen after the time of filing," ibid., but not if it is denied "based on ineligibility at the time of filing," 66 Fed. Reg. 16,385 (2001). Germaine's petition was filed on February 20, 2002, Admin. R. 62, and thus was not filed on or before April 30, 2001. Jean's petition was filed on April 28, 2001, but it was denied because he could not show that "it was in the nation's interest for the Attorney General to waive the job-offer requirement of 8 U.S.C. § 1153(b)(2)(B)." Pet. App. 3a.6 Because that circumstance did not arise after the date of filing, Jean's petition was not approvable when filed.7

Second, it does not appear that petitioners satisfy the requirements of Section 212(e) of the INA, 8 U.S.C. 1182(e) (2000 & Supp. III 2003), which applies to appli cations for adjustment of status by aliens who entered the United States pursuant to J-1 exchange visas. The countries that assist their citizens in obtaining such vi sas do so with the expectation that the visa holders will receive advanced training or experience and then return home to benefit their countries. See S. Rep. No. 1608, 84th Cong., 2d Sess. 4-5 (1956). For that reason, under Section 212(e) of the INA, a J-1 visa holder is ineligible to apply for permanent residence in the United States until he "has resided * * * in the country of his nation ality * * * for an aggregate of at least two years fol lowing departure from the United States," although the requirement may be waived in certain circumstances. 8 U.S.C. 1182(e) (2000 & Supp. III 2003). Petitioners do not satisfy the two-year foreign-residency requirement, and Jean has failed in his attempts to obtain a waiver. After winning the diversity visa lottery in 1994, Jean "obtain[ed] a 'no objection' letter from the Congolese government * * * to relieve him of the J-1 two-year foreign residency requirement," but he "did not get it before his ability to obtain a diversity visa had expired." Pet. App. 2a n.2. We have also been informed by DHS that the Department of State recommended against granting Jean a Section 212(e) waiver in October 2004 and that, on the basis of that recommendation, USCIS denied his request for a waiver in March 2005.

4. The BIA relied solely on 8 C.F.R. 1245.1(c)(8) in denying petitioners' motion to reopen, Pet. App. 15a- 16a, and the court of appeals relied solely on 8 C.F.R. 245.1(c)(8) and 1245.1(c)(8) in denying the petition for review of the BIA's denial of the motion to reopen, Pet. App. 5a-13a. Those regulations have since been re pealed. Moreover, the effective date of the interim rules repealing the regulations, and permitting USCIS to con sider applications for adjustment of status by arriving aliens in removal proceedings, is May 12, 2006, and the new rules apply to all cases pending on administrative or judicial review on that date. 71 Fed. Reg. at 27,585, 27,588. The Court may therefore wish to grant the peti tion for a writ of certiorari, vacate the judgment of the court of appeals, and remand the case for further consid eration in light of the interim rules.

We note, however, that under the new rules-as un der the rules that were in effect prior to 1997, when the regulations petitioners challenge in this case were adopted-the IJ and BIA have no jurisdiction to con sider an application for adjustment of status filed by an alien in petitioners' position. Only USCIS may con sider such an application. 71 Fed. Reg. at 27,587-27,588, 27,591-27,592 (amending 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1)). Accordingly, if the case were remanded to the court of appeals, and then to the BIA, it is likely that the motion to reopen would again be denied, on the ground that the IJ has no jurisdiction over petitioners' applications for adjustment of status.

Petitioners, moreover, do not require any action by the court of appeals, the BIA, or the IJ to pursue an ad justment application with the appropriate administra tive decisionmaker (USCIS). And petitioners may re quest that United States Immigration and Customs En forcement grant an administrative stay of the execution of the final removal orders now in effect if they elect to pursue an adjustment application. See Reno v. Ameri can-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-485 (1999).

Although petitioners must pursue any application for adjustment of status with USCIS and face substantial obstacles on the merits if they do, as matters now stand the BIA's denial of petitioners' motion to reopen rests solely on a regulation that is no longer in effect. For that reason, if this Court remands the case to the court of appeals, that court in turn might choose to remand the case to the BIA so that the BIA could reconsider the motion to reopen in light of the interim rules that repeal the regulation on which the BIA relied.

If this Court does not remand the case to the court of appeals for further consideration in light of the new rules, however, the petition for a writ of certiorari should be denied. The regulations petitioners challenge have been repealed, and the question of their validity raises no issue of continuing importance warranting re view by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for further consideration in light of the interim rules issued by the Department of Home land Security and the Department of Justice on May 12, 2006, 71 Fed. Reg. 27,585. In the alternative, the peti tion for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
ALISON R. DRUCKER
Attorneys

MAY 2006

1 The Attorney General's determination predated the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, which transferred the responsibilities of the former Immigration and Naturalization Service (INS) to the Department of Homeland Security (DHS), while retaining the Executive Office for Immigration Review (EOIR) under the authority of the Attorney General in the Department of Justice (DOJ). See 6 U.S.C. 275, 291, 521 (Supp. III 2003); 8 U.S.C. 1103(a) and (g) (2000 & Supp. III 2003). One of the regulations at issue here-Section 245.1(c)(8)-appeared in Chapter I of Title 8, which contains regulations of DHS; the other regula tion-Section 1245.1(c)(8)-appeared in Chapter V of Title 8, which contains regulations of EOIR. The two provisions are identical.

2 Section 212(d)(5) of the INA gives the Attorney General authority to parole from custody "any alien applying for admission" who would otherwise be detained until a decision is made either to admit or to remove the alien. 8 U.S.C. 1182(d)(5)(A). To exercise the parole auth ority, the Attorney General must find either that "urgent humanitarian reasons" justify the parole or that paroling the alien will yield a "signi ficant public benefit." Ibid.

3 The conditions are (1) that "the alien makes an application for such adjustment"; (2) that "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence"; and (3) that "an immigrant visa is immediately available to [the alien] at the time his application is filed." 8 U.S.C. 1255(a).

4 The rules retain an exception for an alien who leaves the United States while an adjustment application is pending, returns under a grant of advance parole, is placed in removal proceedings, and has his application denied by USCIS. In such a case, an IJ has jurisdiction to adjudicate a renewed adjustment application. 71 Fed. Reg. at 27,591- 27,592 (amending 8 C.F.R. 1245.2(a)(1)).

5 An alien may apply for adjustment of status under Section 245(i) if he or she is physically present in the United States, falls within one of the classes enumerated in Section 245(c) of the INA, and is the bene ficiary of a petition for an immigrant visa filed with the Attorney General on or before April 30, 2001. 8 U.S.C. 1255(i)(1). The classes en umerated in Section 245(c) include aliens who are in "unlawful immigra tion status" or have "failed * * * to maintain continuously a lawful status since entry into the United States," 8 U.S.C. 1255(c)(2), and aliens who seek adjustment of status on the basis of an employment- based visa and are "not in a lawful nonimmigrant status," 8 U.S.C. 1255(c)(7). The Attorney General "may adjust the status" of an alien seeking adjustment under Section 245(i) if certain conditions are satisfied. 8 U.S.C. 1255(i)(2).

6 A job offer is one of the requirements for obtaining the employ ment-based immigrant visa that Jean sought. 8 U.S.C. 1153(b)(2)(A). The Attorney General may waive that requirement if he deems waiver to be in the national interest. 8 U.S.C. 1153(b)(2)(B).

7 Petitioners' ineligibility under Section 245(i) was raised by DHS in its opposition to the motion to reopen that petitioners filed with the BIA. Admin. R. 54. It was also raised by respondent in the court of appeals as an alternative basis for denying petitioners' petition for review. Resp. C.A. Br. 20-24.