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No. 07-1555

 

In the Supreme Court of the United States

GERMAR SCHEERER, AKA GERMAR RUDOLF, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
BRYAN BEIER
JENNIFER PAISNER WILLIAMS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the Board of Immigration Appeals abused its discretion in denying petitioner's motion to reopen his removal proceedings in order to facilitate peti tioner's attempt to adjust his status to that of a lawful permanent resident, in light of a regulation that vests exclusive authority to consider applications for adjust ment of status filed by arriving aliens in certain officials in the Department of Homeland Security.

In the Supreme Court of the United States

No. 07-1555

GERMAR SCHEERER, AKA GERMAR RUDOLF, PETITIONER

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL, ET AL.

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

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-21a) is reported at 513 F.3d 1244. The decisions of the Board of Immigration Appeals that are the subject of the cur rent petitions for judicial review (C.A. R.E., Vol. II, tab 10 and C.A. R.E., Vol. II, tab 13, at 7-8, respectively) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on January 15, 2008. On March 26, 2008, Justice Thomas extended the time within which to file a petition for a writ of certiorari to and including June 13, 2008, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Legal immigration into the United States is con trolled by the issuance of immigrant visas abroad by consular officers acting under the authority of the Sec retary of State. See 8 U.S.C. 1154(b), 1201(a). Congress has also authorized the Attorney General and the Secre tary of Homeland Security to relieve certain qualifying aliens who are already in the United States of the need to depart and obtain an immigrant visa through consular processing by adjusting their status to that of a lawful permanent resident. See 8 U.S.C. 1255(a); Randall v. Meese, 854 F.2d 472, 473-474 (D.C. Cir. 1988) (R.B. Ginsburg, J.), cert. denied, 491 U.S. 904 (1989). Adjust ment of status is discretionary and is "a matter of grace, not of right." Elkins v. Moreno, 435 U.S. 647, 667 (1978).

2. a. Petitioner is a native and citizen of Germany. Pet. App. 3a. In 1995, petitioner fled Germany after being convicted of inciting racial hatred in violation of German law, and he eventually traveled to the United States. Ibid. On August 9, 2000, petitioner was granted immigration parole,1 and he subsequently filed applica tions for asylum and withholding of removal. Id. at 3a- 4a. On April 2, 2001, the former Immigration and Natu ralization Service issued a Notice to Appear, charging that petitioner was an inadmissible arriving alien who had failed to depart from the United States within the 90-day period for which he had been granted immigra tion parole. A.R. 2864.

b. On June, 2003, an immigration judge (IJ) issued a decision and order concluding that petitioner was properly categorized as an arriving alien and that he was inadmissible to the United States. C.A. R.E., Vol. I, tab 1, at 428-429; see 8 C.F.R. 1.1(q) (defining "arriv ing alien" as including "an applicant for admission com ing or attempting to come into the United States at a port-of-entry," even if that person has been granted im migration parole). The IJ denied petitioner's applica tions for asylum and withholding of removal, and it made a specific finding that petitioner's application for asylum had been "frivolous." C.A. R.E., Vol. I, tab 1, at 424. See 8 U.S.C. 1158(d)(6) (providing that an alien who knowingly files a frivolous application for asylum after being warned of the consequences of doing so "shall be permanently ineligible for any" immigration benefits). The IJ also denied petitioner's request for voluntary departure, and ordered him removed to Germany. C.A. R.E., Vol. I, tab 1, at 424.

On November 8, 2004, the Board of Immigration Ap peals (BIA or Board) issued an order that affirmed the IJ's June 3, 2003, decision without opinion. Pet. App. 26a-27a.

c. On December 7, 2004, petitioner filed with the BIA a motion to reopen his removal proceedings and to remand his case to the IJ in order to permit him to apply for adjustment of status. C.A. R.E., Vol. I, tab 3. In that motion, petitioner asserted that he had married a United States citizen on September 11, 2004, nearly two months before the BIA's November 8, 2004, decision. Id. at 2. Petitioner further asserted that, on December 6, 2004, his United States citizen spouse had filed an immediate relative (I-130) visa petition on his behalf with the United States Citizenship and Immigration Service (USCIS) in the Department of Homeland Secu rity (DHS). Ibid.2 Petitioner acknowledged that the IJ had specifically concluded that his asylum application had been frivolous and that this finding would ordinarily render him ineligible for adjustment of status, id. at 3, but he argued that the IJ had failed to comply with the regulations that govern the making of such a finding, id. at 3-4. As relief, petitioner asked the Board to "remand this case to the Immigration Court with instructions" to give him an opportunity to contest the IJ's frivolousness finding "and subsequently adjudicate his application for adjustment of status." Id. at 4.

On March 3, 2005, the BIA denied petitioner's motion to reopen its November 8, 2004, decision. Pet. App. 24a- 25a. The Board cited (id. at 24a) former 8 C.F.R. 1245.1(c)(8) (2005), which provided that "[a]ny arriving alien who is in removal proceedings" was "ineligible to apply for adjustment of status."

d. Petitioner filed timely petitions for review with respect to the BIA's November 8, 2004, and March 3, 2005, decisions, which the court of appeals consolidated. In November 2005, petitioner was removed to Germany after the court of appeals and this Court denied motions to stay enforcement of his removal order. Pet. App. 4a.3

e. On April 13, 2006, the court of appeals granted the petitions for review in part and denied them in part. Scheerer v. United States Att'y Gen., 445 F.3d 1311 (11th Cir. 2006) (Scheerer I). The court affirmed the denial of petitioner's claims for asylum and withholding of removal. Id. at 1317. The court vacated the finding that petitioner's application for asylum had been frivo lous, concluding that the IJ's determinations about "the legal insufficiency of [petitioner's] claim and an adverse credibility determination * * * were insufficient to support a finding of frivolousness." Id. at 1318; see ibid. (stating that, in order to deem an application for asylum frivolous within the meaning of the relevant statute, an IJ must "specifically find material elements of [the] asy lum application were deliberately fabricated"); 8 C.F.R. 208.20.

Finally, the court of appeals determined that former 8 C.F.R. 1245.1(c)(8) (2005)-the provision that made arriving aliens who were in removal proceedings cate gorically ineligible for adjustment of status-was "in valid because it conflicts with congressional intent as expressed in the governing statute, 8 U.S.C. § 1255(a)." Scheerer I, 445 F.3d at 1318; see id. at 1318-1322. The court of appeals remanded the matter to the BIA for further proceedings "consistent with this opinion." Id. at 1322.

3. Scheerer I was one of a number of conflicting court of appeals decisions about the validity of former 8 C.F.R. 1245.1(c)(8) (2005).4 On May 8, 2006, the At torney General and the Secretary of Homeland Security (Secretary) promulgated an interim rule with request for comments (Interim Rule) in order to address that conflict. See 71 Fed. Reg. 27,587 (2006). The Interim Rule repealed former 8 C.F.R. 1245.1(c)(8) (2005). See 71 Fed. Reg. at 27,591. In its place, the Interim Rule promulgated 8 C.F.R. 245.2(a)(1), which provides that USCIS has exclusive "jurisdiction to adjudicate an ap plication for adjustment of status filed by any alien, un less the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. 1245.2(a)(1)." See 71 Fed. Reg. at 27,591.

The Interim Rule also promulgated 8 C.F.R. 1245(a)(1)(ii), which governs applications for adjustment of status filed by "an arriving alien who is placed in re moval proceedings." 8 C.F.R. 1245(a)(1)(ii); see 71 Fed. Reg. at 27,591. Subject to "only one narrow exception * * * for an alien who leaves the United States while an adjustment application is pending with USCIS, and then returns under a grant of advance pa role," id. at 27,587-27,588, that provision provides that "the immigration judge does not have jurisdiction to adjudicate any application for adjustment of status" filed by an arriving alien who is in removal proceedings, 8 C.F.R. 1245.2(a)(1)(ii); see 8 C.F.R. 1245.2(a)(1)(ii)(A)- (D); 71 Fed. Reg. at 27,587-27,588 (describing this rule as "consistent with current practice, under longstanding regulations limiting the jurisdiction of the immigration judges in this context").5 Finally, the Interim Rule pro- vides that it is "applicable to all cases pending adminis trative or judicial review on or after May 12, 2006." Id. at 27,588.

4. a. On July 26, 2006, the BIA issued its decision on remand from the court of appeals. The Board noted that petitioner "is an arriving alien who does not come within the narrow exception" to the Interim Rule's general rule that USCIS has exclusive jurisdiction to consider appli cations for adjustment of status by arriving aliens. C.A. R.E., Vol. II, tab 10, at 2. Accordingly, the BIA con cluded that petitioner "must pursue any application for adjustment of status with [USCIS], independent of these removal proceedings," and it denied his "motion to re open to apply for adjustment of status before the Immi gration Judge." Ibid.

b. Petitioner filed a motion for reconsideration of the Board's July 26, 2006, decision. C.A. R.E., Vol. II, tab 12. In that motion, petitioner argued that the BIA's renewed denial of his motion to reopen was inconsistent with the remand order from the court of appeals. Id. at 2. Petitioner also asserted that application of the In terim Rule to his case had "a perverse effect" because, as a consequence of his removal to Germany and his re sulting inadmissibility, "he will not be able to reenter the United States * * * to take advantage of the new regulation." Id. at 2-3; see 8 U.S.C. 1182(a)(9)(A)(i) and (ii) (prescribing various periods of inadmissibility for aliens previously ordered removed from the United States). Petitioner also argued that "DHS must allow [him] back into the United States to pursue his adjust ment of status application." C.A. R.E., Vol. II, tab 12, at 3.

On November 2, 2006, the BIA issued an order deny ing petitioner's motion for reconsideration. C.A. R.E., Vol. II, tab 13, at 7-8. The Board observed that the pro cedures established by the Interim Rule "are clearly applicable to this case," id. at 7, and it stated that it had "no authority to order DHS to allow [petitioner's] return to the United States," id. at 8.6

5. Petitioner filed new petitions for review with re spect to the BIA's July 26, 2006, and November, 2, 2006, decisions, which the court of appeals consolidated. On January 15, 2008, the court of appeals issued the deci sion that is at issue in this petition for a writ of certio rari and denied both petitions for review. Pet. App. 1a- 21a.

The court of appeals' analysis had three parts. First, the court of appeals concluded that the Interim Rule is valid under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). The court concluded that "the 'precise question at issue' is different" than in Sheerer I, because the In terim Rule "does not alter the eligibility standards gov erning adjustment applications," but rather "removes a category of applications from the jurisdiction of the im migration courts, leaving those applications to be adjudi cated by USCIS." Pet. App. 11a. The court determined that the governing statutory provisions are silent with respect to the permissibility of such an approach, id. at 11a-12a, and that the regulation "appears fully consis tent with the broader statutory framework governing adjustment applications, in which Congress has divided adjudication functions between [the Department of Jus tice] and DHS and has authorized those departments to fill the gaps as to specific application procedures, id. at 13a-14a.

Second, the court of appeals concluded that the appli cation of the Interim Rule to petitioner's case neither had a constitutionally impermissible retroactive effect, Pet. App. 15a-16a, nor violated its mandate in Scheerer I, id. at 17a-18a. The court noted that although its pre vious decision "established that [petitioner] could not be declared ineligible for adjustment of status based on the 'mere fact of removal proceedings,' it did not create any requirement that his adjustment application be adjudi cated by an immigration court" rather than USCIS. Id. at 18a (citation omitted).

Third, the court of appeals held that the BIA had not abused its discretion in denying petitioner's motion to reopen his removal proceedings. Pet. App. 18a-20a. The court acknowledged that several of its own decisions had "found an abuse of discretion in the denial of a continu ance during the pendency of a visa petition where the alien was seeking adjustment of status," and that the BIA had previously held "that, when certain five factors are met, a motion to reopen may be granted to provide an alien the opportunity to pursue an adjustment appli cation based on a marriage entered into after the com mencement of [removal] proceedings." Id. at 18a-19a (citing, inter alia, In re Velarde-Pacheco, 23 I. & N. Dec. 253 (B.I.A. 2002)). But the court explained that the aliens in those cases "were not arriving aliens and thus were subject to a different regulatory framework than that which governs here." Id. at 19a. The court of ap peals stated that, in the category of cases at issue in the previous decisions, "an IJ would have authority to adju dicate the petitioners' respective applications once the statutory prerequisites to adjustment of status were satisfied." Ibid. Cf. 8 C.F.R. 1245.2(a)(1)(i) (providing that IJs have "exclusive jurisdiction to adjudicate any application for adjustment of status" filed by "any alien who has been placed in deportation proceedings or in removal proceedings (other than as an arriving alien)"). Here, in contrast, under the Interim Rule, "the immi gration courts have no jurisdiction over adjustment ap plications filed by aliens in [petitioner's] position," and petitioner's application for adjustment of status "would never return to the immigration courts even if denied by USCIS." Pet. App. 19a.

The court of appeals also rejected petitioner's con tention that the BIA's refusal to reopen his removal pro ceedings conflicted "with the intent of the [Interim Rule] as reflected in [the Department of Justice's] pub lished implementation procedures." Pet. App. 19a-20a. A portion of the explanatory text that accompanied the Interim Rule states that previous BIA decisions had recognized that "it will ordinarily be appropriate for an immigration judge to exercise his or her discretion fa vorably to grant a continuance or motion to reopen in the case of an alien who has submitted a prima facie ap provable visa petition and adjustment application in the course of a deportation hearing." 71 Fed. Reg. at 27,589. The court of appeals concluded, however, that that state ment "merely reiterates the principles set forth in Velarde-Pacheco and similar cases" and "cannot fairly be read to establish a policy requiring the reopening of proceedings even where, as here, there is no possibility that the alien's adjustment application would be adjudi

cated during those proceedings." Pet. App. 20a. Ac cordingly, the court of appeals concluded that the BIA's reliance on the Interim Rule in denying petitioner's mo tion to reopen his removal proceedings "reflects a rea sonable interpretation of that regulation, which was in tended to clarify that applications such as [petitioner's] 'will be adjudicated only by [USCIS].'" Ibid. (quoting 71 Fed. Reg. at 27,587) (emphasis added).7

ARGUMENT

The issue presented by this petition for a writ of cer tiorari is a narrow one. Petitioner expressly states (Pet. 6 n.4) that he is no longer challenging the validity of the Interim Rule, including the portion of the Interim Rule that provides that applications for adjustment of status filed by arriving aliens generally fall within the exclu sive jurisdiction of USCIS. The petition for a writ of certiorari likewise does not challenge: (i) the BIA's con clusion that petitioner was properly classified as an ar riving alien at the time he filed his motion to reopen his removal proceedings; (ii) the court of appeals' conclusion that the procedures set forth in the Interim Rule may validly be applied to petitioner's case; or (iii) the BIA's denial of petitioner's motion to reconsider its previous denial of his motion to reopen. Petitioner likewise does not contend that the BIA failed to give an adequate ex planation of its decision to deny his motion to reopen. Instead, the sole issue of which petitioner seeks this Court's review is whether-assuming the validity of the Interim Rule-the BIA "abuse[d] its discretion as a matter of law" in denying his motion to reopen. Pet. i, see Pet. 1, 6-17.

Further review of that question is not warranted. The court of appeals' decision is correct. There is no clear conflict among the court of appeals over the spe cific question presented here, and, even if there were such a conflict, it would be narrow and recently arising and might well be resolved without this Court's inter vention. Finally, this case would be a poor vehicle in which to consider the issue upon which petitioner seeks review.

1. The court of appeals correctly held that the BIA did not abuse its discretion in denying petitioner's mo tion to reopen his removal proceedings. The purpose of a motion to reopen is to present "new facts" that may bear on an alien's eligibility for relief. 8 U.S.C. 1229a(c)(7)(B). "The decision to grant or deny a motion to reopen * * * is within the discretion of the Board," 8 C.F.R. 1003.2(a), and this Court has recognized that "[t]here are at least three independent grounds on which the BIA may deny a motion to reopen." INS v. Abudu, 485 U.S. 94, 104 (1988). First, the Board may deny reopening if it concludes that "the movant has not established a prima facie case for the underlying sub stantive relief sought." Ibid. "Second, the BIA may hold that the movant has not introduced previously un available, material evidence." Ibid. And third, "in cases in which the ultimate grant of relief is discretion ary"-including adjustment of status-"the BIA may leap ahead, as it were, over the two threshold concerns * * *, and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief." Id. at 105.

In this case, the BIA correctly denied reopening on the ground that petitioner "ha[d] not established a prima facie case for the underlying substantive relief sought." Abudu, 485 U.S. at 104. In his motion to re open, petitioner asked the BIA to "remand this case to the Immigration Court with instructions to * * * adju dicate his application for adjustment of status." C.A. R.E., Vol. I, tab 3, at 4. The BIA construed petitioner's motion in accordance with its terms, twice stating that petitioner had requested reopening "to apply for adjust ment of status before the Immigration Judge." C.A. R.E., Vol. II, tab 10, at 1-2. But as the Board noted (id. at 2), the Interim Rule makes clear that IJs lack author ity to adjudicate applications for adjustment of status filed by aliens in petitioner's position. See 8 C.F.R. 1245.2(a)(1)(ii). The IJ's conceded inability to grant the only form of "substantive relief sought" in petitioner's motion to reopen, Abudu, 485 U.S. at 104, provided more than sufficient reason for the BIA to deny that motion.

The court of appeals correctly rejected petitioner's contrary arguments. As the court explained (Pet. App. 18a-19a), certain other categories of aliens may-indeed, must-pursue any application for adjustment of status before an IJ as part of their removal proceedings. See 8 C.F.R. 1245.2(a)(1)(i). Accordingly, for those aliens, an otherwise proper motion to reopen may be a neces sary prerequisite to permit them to pursue that form of "substantive relief" before an IJ. Abudu, 485 U.S. at 104. In contrast, under the Interim Rule, an arriving alien must seek adjustment of status from USCIS, and the court of appeals correctly noted that any such appli cation "would never return to the immigration courts even if denied by USCIS." Pet. App. 19a (emphasis added). Because any application for adjustment of sta tus that petitioner might have filed with USCIS would be entirely "independent of [petitioner's] removal pro ceedings," C.A. R.E., Vol. II, tab 10, at 1-2, the mere prospect that petitioner might file such an application in the future did not require the BIA to reopen his removal proceedings. See note 6, supra (explaining that peti tioner did not file an application for adjustment of status until 2008).

Petitioner errs in contending (Pet. 11-12) that the approach followed by the BIA in this case is inconsistent with the explanatory text that accompanied the Interim Rule. The statements that petitioner identifies are con tained in a section that solicits public comments about further possible changes to the regulations. In that sec tion, the Secretary and the Attorney General state that they "are interested in receiving public comment on whether the regulations should be amended to provide additional regulatory guidance" about the circumstances under which IJs and the BIA "should exercise discretion to grant or deny a continuance for arriving aliens in re moval proceedings who have filed an application for ad justment of status which remains pending with USCIS." 71 Fed. Reg. 27,589 (2006). The next sentence observes that the BIA has stated that, under existing law, "it will ordinarily be appropriate for an [IJ] to exercise his or her discretion favorably to grant a continuance or mo tion to reopen in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation hearing." Ibid. After further clarifying the request for comments, the explanatory text also states that, "[i]n the meantime, USCIS, the immigration judges, and the BIA will con tinue to apply the discretionary factors in accordance with the general principles noted above, and guided by prior decisions." Id. at 27,590.

As the court of appeals correctly explained (Pet. App. 20a), the comments quoted above, which simply describe pre-existing law, "cannot fairly be read to es tablish a policy requiring the reopening of proceedings even where, as here, there is no possibility that the alien's adjustment application would be adjudicated dur ing those proceedings." Rather, those comments "merely reiterate[] the principle set forth in" previous BIA and court of appeals decisions regarding the cir cumstances in which IJs or the BIA should grant contin uances or reopening in order to permit an alien to pur sue an application for adjustment of status before the IJ. Ibid. Courts "are properly hesitant to" disregard an agency's understanding of its own regulations unless an "alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation." Gardebring v. Jenkins, 485 U.S. 415, 430 (1988). Peti tioner does not come close to meeting those standards.

Petitioner also errs in asserting (Pet. 13) that the decisions of the BIA and the court of appeals in this case will "effectively preclude[]" an arriving alien from ob taining "an adjudication of" an application for adjust ment of status. As the court of appeals observed (Pet. App. 13a n.7), petitioner has offered "no empirical sup port for his contention that the [framework established by the Interim Rule] bars 'virtually all' paroled aliens from pursuing the merits of their adjustment applica tion." Nor do the facts of this case support such an as sertion. At the time of his September 11, 2004, mar riage, petitioner had already been in the United States for nearly three-and-a-half years. Although an IJ had already ordered petitioner removed at the time of their wedding, petitioner's spouse did not file an application for an immediate relative visa until December 2004, nearly three months later. Petitioner was not ultimately removed until November 2005, and he was removed only after both the court of appeals and this Court denied his requests for a stay of removal. Petitioner does not as sert that he asked USCIS to expedite consideration of his visa petition in light of his pending immigration pro ceedings, nor does he assert that he requested a stay of removal from DHS in order to give the agency more time to consider that application and any subsequent request for adjustment of status. See 8 C.F.R. 241.6(a) (authorizing certain DHS officials to "grant a stay of removal or deportation for such time and under such conditions as [they] may deem appropriate").

2. Petitioner contends (Pet. 14-17; Pet. Supp. Br. 1- 2) that the court of appeals' decision in this case con flicts with decisions of the Second, Seventh, and Ninth Circuits. There is no ripe conflict with respect to the specific question presented here, and, even if there were such a conflict, it would be narrow and recently arising and may well be resolved without this Court's interven tion.

There is no conflict between the decision below and Sheng Gao Ni v. BIA, 520 F.3d 125 (2d Cir. 2008). In Sheng Gao Ni, the Second Circuit concluded that the BIA had failed to "provide a rational explanation for" its decision to deny several arriving aliens' motions to re open their removal proceedings in order to permit them to pursue applications for adjustment of status, id. at 130 (internal quotation marks and citation omitted), and it "remand[ed] the[] cases to the BIA for reconsidera tion of whether [the aliens'] motions to reopen warrant a favorable exercise of the BIA's discretion," id. at 131. Petitioner's claim, however, is not that the BIA failed to provide an adequate explanation for his decision. Rather, petitioner asserts that the Board "abuse[d] its discretion as a matter of law" (Pet. i; see Pet. 1) in deny ing his motion to reopen. The Second Circuit did not decide that question in Sheng Gao Ni. Indeed, it specifi cally referred to the Eleventh Circuit's decision in this case and stated that it "need not decide today" whether the Eleventh Circuit's decision properly "captures the equities of the circumstances in which [the aliens in Sheng Gao Ni] and those similarly situated find them selves." 520 F.3d at 131.

Sheng Gao Ni is distinguishable for another reason as well. In that case, the Second Circuit "f[ou]nd no reason for the BIA to have assumed * * * that [the aliens in that case] intended to press their applications [for adjustment of status] in removal proceedings [be fore IJs], rather than before the USCIS, the forum des ignated by the" Interim Rule. 520 F.3d at 130. Here, in contrast, petitioner's motion to reopen clearly asked the BIA to "remand this case to the Immigration Court with instructions to * * * adjudicate his application for adjustment of status." C.A. R.E., Vol. I, tab 3, at 4 (em phasis added). Although petitioner has now attempted to recast his motion as seeking to have the IJ grant a "continuance" to permit him to pursue an application for adjustment of status with USCIS (Pet. i), that is simply not what petitioner said in his motion to reopen-or in any other document filed with the BIA before it denied petitioner's motion to reopen-and it is not what the BIA understood petitioner to be requesting when it is sued its July 26, 2006, decision. See C.A. R.E., Vol. II, tab 10, at 1-2 (BIA twice stating that petitioner had re quested reopening "to apply for adjustment of status before the Immigration Judge").8

There is likewise no direct conflict between the deci sion below and Ceta v. Mukasey, No. 07-1863, 2008 WL 2854153 (7th Cir. 2008). The issue in Ceta was whether the BIA had erred in relying on the Interim Rule in af firming an IJ's denial of an alien's motion to continue his removal proceedings. See id. at *3-*4. The Seventh Cir cuit's holding was that "the BIA did not articulate a rea son for denying [the alien's] motion for a continuance that was consistent with the adjustment statute," be cause it had "failed to address th[e] critical point" that the alien "needed more time to pursue his application" for adjustment of status with USCIS. Id. at *7. But, again, petitioner's claim is not that the BIA provided an inadequate explanation for its decision to deny his mo tion for reopen; petitioner's assertion is that the Board "abuse[d] its discretion as a matter of law" in doing so. Pet. i. In addition, the issue of whether to defer resolu tion of a still-ongoing proceeding in light of pending de velopments in another forum (the Ceta situation) is sim ply not the same as whether a tribunal that has already rendered a final decision should reopen its own proceed ings in order to facilitate the losing party's efforts to obtain a form of relief that falls within the exclusive competence of another tribunal, which is the issue here.

The final decision with which petitioner asserts a conflict is Kalilu v. Mukasey, 516 F.3d 777 (9th Cir. 2008) (per curiam). Kalilu involved consolidated peti tions for review in which an alien challenged both (i) an initial decision in which the BIA denied his applications for asylum and withholding of removal and found that he had filed an frivolous asylum application; and (ii) a sub sequent decision in which the Board denied a motion to reopen. Id. at 778. The Ninth Circuit first determined that it was appropriate to remand the frivolous-asylum- application issue in order to permit the BIA to apply the standards set forth in its intervening decision in In re Y-L-, 24 I. & N. Dec. 151 (B.I.A. 2007). See 516 F.3d at 779. The court of appeals acknowledged "that, if on re mand, the BIA determines that [the alien] filed a frivo lous asylum application, this determination would pre clude [the alien] from eligibility to adjust his sta tus"-the only form of substantive relief that the alien had indicated an intent to pursue by way of a motion to reopen. Id. at 780 n.3. But the panel nonetheless then went on to conclude that the BIA had abused its discre tion in relying on the Interim Rule in denying the alien's motion to reopen. Id. at 779-780. In reaching that con clusion, the Ninth Circuit reasoned that an arriving alien's opportunity to apply for adjustment of status with USCIS "is rendered worthless where the BIA * * * denies a motion to reopen (or continuance) that is sought in order to provide time for USCIS to adjudi cate a pending application." Id. at 780. But see pp. 15- 16, supra (explaining why that assertion is not correct).

There are at least four reasons why any tension be tween Kalilu and the court of appeals' decision in this case does not warrant this Court's review at this time. First, there is the factual point that petitioner did not ask the BIA to grant his motion to reopen "in order to provide time for USCIS to adjudicate a pending applica tion" for adjustment of status. Kalilu, 516 F.3d at 780; see p. 13, supra. Second, the statements in Kalilu on which petitioner relies were at least arguably dicta, be cause the Ninth Circuit panel itself recognized that the issue of whether the BIA had cited a valid basis for de nying the alien's motion to reopen would be moot if the Board were to conclude on remand that the alien's appli cation for asylum had been frivolous. 516 F.3d at 780 n.3. Third, on March 27, 2008, the government filed a petition for panel rehearing in Kalilu with respect to the portion of the panel's opinion upon which petitioner re lies, and that motion remains pending.

Finally, even if the Ninth Circuit denies the govern ment's petition for rehearing in Kalilu, any conflict be tween that decision and the Eleventh Circuit's decision in this case may well be resolved by the regulatory pro cess of which the Interim Rule is a part. The Interim Rule was issued in order to resolve a previous conflict among the courts of appeals regarding the ability of ar riving aliens to apply for adjustment of status. See 71 Fed. Reg. at 27,587. The Attorney General and the Sec retary have specifically requested public comment on "whether the regulations should be amended to provide additional regulatory guidance on when the immigration judges and the [Board] should exercise discretion to grant or deny a continuance for arriving aliens in re moval proceedings who have filed an application for ad justment of status which remains pending with USCIS." Id. at 27,589. The Attorney General and the Secretary are best situated to address in the first instance peti tioner's contention that the BIA's refusal to grant a mo tion to reopen under the circumstances presented here threatens to "preclude[] otherwise eligible arriving aliens in removal proceedings from applying for adjust ment of status," Pet. 8 (emphasis deleted), as well as to determine the most appropriate solution in the event that such a problem actually exists.

3. In any event, this case would be a poor vehicle for considering the narrow question upon which petitioner seeks review.

Although the matter does not appear to have been brought to the Board's attention, it appears that the BIA would have lacked authority to grant petitioner's motion to reopen as of the date of its July 26, 2006, deci sion on remand. Section 1003.2(d) of Title 8 of the Code of Federal Regulations provides that "[a]ny departure from the United States, including the deportation or removal of a person who is the subject of exclusion, de portation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion." (empha sis added). As noted above, petitioner was removed to Germany in November 2005, which was before the Board's July 26, 2006, decision that denied petitioner's motion to reopen and that is the subject of the current petition for review.9

In addition, petitioner has failed to show that this Court's review is necessary in order to permit him to obtain any concrete benefit. Petitioner has already been removed from the United States. As a result, there would be no way for him to realize the principal benefit of obtaining lawful permanent residence by way of ad justment of status, i.e., the ability to do so without being required to depart from the United States and pursue lawful permanent resident status from abroad. See Randall v. Meese, 854 F.2d 472, 473-474 (D.C. Cir. 1988) (R.B. Ginsburg, J.), cert. denied, 491 U.S. 904 (1989). Adjustment of status, moreover, is a form of relief that cannot be pursued from outside the United States, see 8 U.S.C. 1255(a), 8 C.F.R. 245.1(a), and petitioner's present incarceration in Germany (see note 3, supra) would prevent him from traveling to the United States at this point in any event.

Once petitioner is released, moreover, he will have avenues for seeking lawful permanent residence in the United States other than an application for adjust ment of status. As noted earlier, see note 2, supra, peti tioner is now the beneficiary of an approved I-130 imme diate relative visa. Accordingly, upon his release from incarceration, petitioner will be eligible to seek an im migrant visa from an overseas consular officer. 8 U.S.C. 1151(b)(2)(A)(i), 1154(a)(1)(A)(i), 1201(g), 1202(a); 8 C.F.R. 204.1(e)(2) and (3). A consular officer who is presented with an approved petition for an immediate relative visa has no discretion to deny an immigrant visa to an alien who is not inadmissible under 8 U.S.C. 1182, see 8 U.S.C. 1201(g); 22 C.F.R. 42.31(a), and the denial of petitioner's motion to reopen his removal proceedings would have no prospective effect on his ability to obtain such a visa.

It is true that, as a result of having been removed from the United States, petitioner is now subject to a period of inadmissibility under 8 U.S.C. 1182(a)(9)(A)(i) and (ii). As the court of appeals emphasized, however, that period may be waived by the Secretary or his designee, USCIS, see 8 U.S.C. 1182(a)(9)(A)(iii), and DHS has indicated its "willing[ness] to entertain" such a request. Pet. App. 20a n.10. The granting of such a request would, of course, be committed to the sound discretion of certain government officials. The same thing, however, is true with respect to the two forms of relief that petitioner states that he prefers to pursue: a motion to reopen with the BIA, see Dada v. Mukasey, 128 S. Ct. 2307, 2315 (2008), and a grant of adjustment of status by USCIS, see Abudu, 485 U.S. at 105; 71 Fed. Reg. at 27,588.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

GREGORY G. GARRE
Acting Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
BRYAN BEIER
JENNIFER PAISNER WILLIAMS
Attorneys

 

AUGUST 2008

 

 

1 8 U.S.C. 1182(d)(5)(A) confers authority to parole from immigra tion custody "any alien applying for admission" who would otherwise be detained until the question of admissibility is resolved. Immigration parole is "simply a device through which needless confinement is avoided while administrative proceedings are conducted"; a paroled alien is "still in theory of law at the boundary line." Leng May Ma v. Barber, 357 U.S. 185, 189, 190 (1958) (quoting Kaplan v. Tod, 267 U.S. 228, 230 (1925)).

2 We have been advised by DHS that the I-130 petition filed by petitioner's wife was approved on October 19, 2005.

3 We have been advised by DHS that German officials have advised that petitioner is currently incarcerated in Germany for violations of German law and is expected to be released in July 2009.

4 Compare Succar v. Ashcroft, 394 F.3d 8, 36 (1st Cir. 2005) (conclud ing that the regulation was invalid), Zheng v. Gonzales, 422 F.3d 98, 119-120 (3d Cir. 2005) (same), and Bona v. Gonzales, 425 F.3d 663, 668- 670 (9th Cir. 2005) (same), with Momin v. Gonzales, 447 F.3d 447, 459- 461 (5th Cir.) (upholding the regulation), opinion vacated, 462 F.3d 497 (5th Cir. 2006), and Mouelle v. Gonzales, 416 F.3d 923, 930 (8th Cir. 2005) (same), cert. granted and judgment vacated, 548 U.S. 901 (2006).

5 In contrast, 8 C.F.R. 1245.2(a)(1)(i)-which was also adopted as part of the Interim Rule, see 71 Fed. Reg. at 27,591-provides that an IJ "has exclusive jurisdiction to adjudicate any application for adjust ment of status" filed by "any alien who has been placed in deportation proceedings or in removal proceedings (other than as an arriving alien)."

6 We have been advised by DHS that petitioner filed an application for adjustment of status with USCIS on February 21, 2008. But see 8 U.S.C. 1255(a) (stating that an alien must be in the United States in order to obtain lawful permanent resident status by way of an applica tion for adjustment of status); 8 C.F.R. 245.1(a) (same).

7 The court of appeals also emphasized that, "[i]n view of the highly unusual circumstances of this case," "there may be avenues of relief still available" to petitioner. Pet. App. 20a n.10. The court noted that the government had stated in its brief that DHS was willing "to 'take steps that would permit [petitioner] to apply for adjustment of status within the applicable regulatory framework,'" and it identified two methods through which petitioner might be able to do so. Ibid.

8 Even in his brief to the court of appeals, petitioner made clear that he envisioned some role for the IJ with respect to his application for adjustment of status. See Pet. C.A. Br. 22-23 ("Once [petitioner's] motion to reopen is properly granted, his application can then be heard by the IJ, or the IJ can transfer jurisdiction to the USCIS to review the application if the IJ so decides.").

9 Indeed, petitioner was removed to Germany before the court of appeals rendered its first decision in this case on April 13, 2006, which reversed the Board's earlier denial of petitioner's motion to reopen on March 3, 2005, and remanded to the Board for further proceedings. See Scheerer I, 445 F.3d at 1322. Thus, by operation of the governing regulation, petitioner's motion to reopen had already been withdrawn before the court of appeals first considered the Board's denial of that motion, and it has remained withdrawn ever since.