Lawyers Hail Decision On Alien's Status Adjustment

Immigration lawyers say they are encouraged by a recent decision by the 1st U.S. Circuit Court of Appeals that allows arriving aliens to adjust their status to lawful permanent residents without leaving the country — even if they have been placed in removal proceedings.

In Succar v. Ashcroft, an immigration judge had denied the adjustment application of an asylum-seeker who had been "paroled" into the country and had subsequently married a U.S. citizen under a 1997 regulation promulgated by the U.S. attorney general that barred arriving aliens in removal proceedings from adjusting their immigration status. The Board of Immigration Appeals affirmed the judge's ruling.

But Judge Sandra L. Lynch, writing on behalf of the 1st Circuit, struck down the regulation as inconsistent with the language and intent of 8 U.S.C. Sect. 1255(a), which explicitly identified parolees as eligible for adjustment of status.

In the face of the comprehensive statutory scheme provided by Congress, Lynch found that the U.S. attorney general's discretion to make individual determinations on adjustment applications did not include the authority to adopt a regulation that barred adjustment to a category of individuals who were statutorily granted eligibility.

Mary A. Kenney, senior attorney at the American Immigration Law Foundation, noted the 1st Circuit is the first court in the country to have ruled on the validity of 8 CFR Sect. 245.1(c)(8), the regulation in question.

"For the court to have found that the regulation violates the statute is extremely significant, because we had thought all along that the regulation undermined what Congress intended," she stated.

Saher J. Macarius of Framingham, who represented the petitioner, said the decision is also of broader significance in that it serves as a warning to governmental agencies against "overreaching." Observing that the opinion outlines the perimeters of an agency's discretion and authority, he anticipated that the effects of the ruling will be felt beyond the field of immigration.

"It will enhance the practice of the executive branch in enacting regulations," Macarius commented.

Iris D. Gomez of the Massachusetts Law Reform Institute, which submitted an amicus curiae brief, agreed that the case demonstrates the importance of judicial review in the immigration arena.

"Even though there have been tremendous legislative efforts to curtail immigrants' ability to have their day in court, this kind of situation illustrates how important it is for there to be some outside scrutiny of agency actions," she remarked.

Kerry E. Doyle of Boston, chair of the American Immigration Lawyers Association's New England chapter added: "It brings some rationality back into the system and, even more importantly, it helps ensure family unity."

The full text of Succar, Lawyers Weekly No. 01-003-05, can be found on our website, www.masslawyersweekly.com. The opinion digest for the decision appeared in the Jan. 10 issue of Lawyers Weekly.

Status Quo?

The petitioner, William Succar, a Lebanese citizen, requested political asylum on Oct. 21, 1998, when his flight from Lebanon to Panama stopped in Miami International Airport. After a pre-screening officer determined that he had a credible fear of persecution based on his involvement with Christian militias in Lebanon, he was placed in removal proceedings and paroled into the United States on Nov. 30, 1998.

In February 2001, while he was paroled and while the appeal of his application for asylum and withholding of removal was pending before the BIA, the petitioner married a U.S. citizen. The petitioner's wife filed an immigrant visa petition on his behalf, which was approved.

Believing he met the statutory eligibility requirements, the petitioner filed a motion to remand the proceedings to an immigration judge for consideration of his application for adjustment of status under 8 U.S.C. Sect. 1255(a).

But the immigration judge determined that under 8 CFR Sect. 245.1, he did not have the authority to adjust the status of an arriving alien, so he denied the petitioner's adjustment application as a matter of law. The judge also reaffirmed the earlier order of removal to Lebanon.

On appeal, the BIA affirmed the immigration judge's determination in full. The petitioner timely appealed.

Having determined that the issue was one of statutory interpretation and that, consequently, the validity of the agency's regulation was not beyond judicial review, Lynch stated that "[t]he mere fact that a statute gives the Attorney General discretion as to whether to grant relief after application does not by itself give the Attorney General the discretion to define eligibility for such relief."

She noted that Congress unambiguously reserved to itself the determination of who is eligible for adjustment of status relief and that when it desired to limit or open up eligibility, it had done so explicitly.

Despite numerous amendments to 8 U.S.C. Sect. 1255 since 1960, Lynch added that Congress had not limited the eligibility of paroled aliens under Sect. 1255(a).

Viewing the larger statutory scheme, she observed that Congress was also explicit about where the U.S. attorney general retained discretion and where he did not. By contrast with other areas, Lynch remarked, there was no express grant of discretion to redefine eligibility to apply for adjustment of status of parolees.

"The statutory scheme reflects Congress's careful balancing of the country's security needs against the national interests Congress wished to advance through adjustment of status proceedings," she stated. "The regulation upsets the balance Congress created."

Checking this interpretation of the statute against its legislative history, Lynch found the regulation to be inconsistent with the statute's intent of eliminating the burden on paroled aliens and their American relatives of having to leave the country and apply from a consular office abroad, as well as the burden on the government caused by the large number of private bills seeking adjustment of status for named individuals.

"The effect of the regulation before us … will predictably be to re-institute the very problems which Congress attempted to eliminate in 1960," she concluded.

In response to the U.S. attorney general's argument that the 1996 enactment of the Illegal Immigration Reform and Immigrant Responsibility Act justified the 1997 regulation, Lynch observed that that act left untouched the language of Sect. 1255, as enacted in 1960, on the matter in question.

"Finally, the purported policy justifications of expediting removal of aliens and administrative ease must give way to clear congressional intent," she stated.

Judges' Flexibility Reestablished

Macarius, the petitioner's lawyer, observed that the decision returned to immigration judges the discretion and flexibility to make determinations as to whether individual immigrants should be granted legal permanent residency.

He noted that the impact of the ruling will be felt by anyone arriving at an airport without a visa. Primarily affected are non-citizens whose immigrant visas are being sponsored by a U.S. employer or a U.S. spouse.

"The longer you're in this country, waiting for other immigration applications to be processed, the greater the likelihood that you will develop ties that bind you," Gomez commented.

Kenney added that "[t]his far-reaching decision will help thousands of American families [and] law-abiding immigrants who now may get their green cards and stabilize their lives."

Doyle agreed that the change will have a significant impact on many lives.

"We're talking about people who are already eligible for green cards — and they were forcing families to be separated, essentially for as long as 10 years," she said, referring to statutory bars that prevent non-citizens from reentering the U.S. for three years if they were unlawfully present in the country for more than 180 days, and 10 years if they were unlawfully present for more than one year.

Furthermore, Macarius remarked, non-citizens who have not yet been admitted to the U.S. are ineligible for voluntary departure. Since parolees have not, by definition, been admitted, Macarius noted that had his client left the country, he would have been subject to the five-year ban imposed after any involuntary departure.

Both Macarius and Gomez pointed to the difficulties faced by asylum-seekers obliged to return to their country of residence to apply through the consular process.

"Even though the conditions in their home country were dangerous to return to, the effect of the regulation would have been to require them to return to those conditions in order to permanently immigrate with their U.S. spouse," stated Gomez, who noted that Massachusetts has historically been a haven for refugees from around the world.

Referring to the dangerous conditions created around the Indian Ocean by the recent tsunami, she added that "counties affected by natural catastrophes are another good example of why you want to have the flexibility to let judges decide whether individuals should be granted permanent status, as opposed to sending them abroad for that determination."

The hardships created by the regulation would have been mitigated by allowing individuals to choose the country through which to process their immigrant visa, Macarius noted.

"It would have been a lot easier and cheaper for my client and his wife to just take a year off and go live in Brazil," he said. "But you need a nexus to the country that you are trying to apply through. I cannot send someone from Lebanon to Brazil to adjust status."

Far-Reaching Effects?

The ruling applies only to removal cases pending or decided within the 1st Circuit. However, lawyers speculated that other courts might be influenced to reach the same conclusion in the future.

Noting that similar challenges remain pending in other jurisdictions, Kenney remarked that "Judge Lynch's decision was very detailed and so clearly supported, it should have an impact."

Macarius agreed, noting the opinion makes for "easy work" for anyone wishing to examine the validity of the regulation in other circuits.

"They have a thorough, well-written decision — they can cite every word," he said.

Doyle reported rumors that the government is considering filing a motion for a rehearing en banc. "But it's such a well-written, well thought-out decision, I think there's less likelihood of it being overturned," she continued.

Doyle also expressed hope that the ruling might have an influence on the incoming U.S. attorney general and secretary of the Department of Homeland Security.

"Maybe it will encourage them, rather than fight it, to rethink their policy," she remarked.

Questions or comments may be directed to the writer at lbruno@lawyersweekly.com.

Click here for the full text of the decision.