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Sabri I. Samirah v. Erich. Holder

December 3, 2010

SABRI I. SAMIRAH, PLAINTIFF-APPELLEE,
v.
ERICH. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 1298-James B. Moran, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.

ARGUED SEPTEMBER 8, 2010

Before POSNER, MANION, and HAMILTON, Circuit Judges.

In the more than seven years that have elapsed since our first decision in this seemingly interminable immigration case, Samirah v. O'Connell, 335 F.3d 545 (7th Cir. 2003), the issues presented to us have changed, requiring us to conduct a fresh analysis. The government insists that our first decision, reversing the grant of a preliminary injunction to the plaintiff, is dispositive of the present appeal. That isn't true. The issues are different. The central issue in the first appeal-the reviewability of revocation of "advance parole"-has dropped out, and the relief sought in the present appeal (mandamus) is different from that sought unsuccessfully in the prior one (habeas corpus). We'll see that an immigration regulation entitled the plaintiff, upon the revocation of his advance parole, to the restoration of his pre-parole status, that of an applicant to adjust his status from nonlawful resident to lawful resident. But to pursue his application, he had, by law, to be physically present in the United States. The government, in violation of the regulation, refused to let him return to the United States. He is entitled to a writ of mandamus directing the Attorney General to enable him to return. That is the case in a nutshell, but the complexity of immigration law will require an unavoidably tedious elaboration of our analysis. The issues presented by this appeal have not been briefed and argued as carefully as we would like, perhaps because of that complexity; but we think we can see our way clear to a sound result.

The plaintiff, a citizen of Jordan, first came to the United States 23 years ago on a student visa. Although the visa expired at some point, he remained in the United States. He didn't become a lawful resident, but he obtained a Ph.D., married, had three children, was continuously employed, and had never been placed in deportation (now called removal) proceedings. Twice he applied to adjust his status to that of a lawful resident and both times he was turned down, the first time because he had accepted employment without the immigration service's authorization and the second time because a religious-worker visa obtained on his behalf by the American Middle Eastern League was determined to be invalid. In the course of the second rejection the im-migration service cited two media reports which suggested that the plaintiff was affiliated with political groups that either supported Hamas or endorsed its views. The government has not repeated these shadowy accusations in the present proceeding, and the plaintiff has never been placed in removal proceedings.

In 2002, the year after the denial of his second application for adjustment of status, the plaintiff learned that his mother, who lives in Jordan, was ill. He hadn't seen her for years and wanted to visit her. But he also wanted to preserve the opportunity to adjust his status, so he filed a third application and at the same time asked the immigration authorities for what is called "advance parole." Advance parole authorizes an applicant for adjustment of status to travel outside the United States without prejudice to his application, and to return-even though he isn't a lawful resident and doesn't have a visa-to prosecute it. 8 C.F.R. § 212.5(f); Brito v. Mukasey, 521 F.3d 160, 162 n. 1 (2d Cir. 2008). The regulation that authorizes parole (and does not distinguish between advance parole, which lets an alien leave the country without jeopardizing his immigration status, and parole granted to an alien outside the country to allow him to enter without his thereby obtaining the status of a lawfully admitted alien) also provides that "upon accomplishment of the purpose for which parole was auth- orized or when in the opinion of one of [designated] officials . . . neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be restored to the status that he or she had at the time of parole." 8 C.F.R. § 212.5(e)(2)(i). The meaning of "restored to the status that he or she had at the time of parole" is the central issue presented by the appeal.

In December 2002 the immigration service granted the plaintiff advance parole (it didn't have to, but it did), and having done so sent him a travel document (Form I-512L) authorizing "a transportation line to accept the named bearer on board for travel to the United States without liability . . . for bringing an alien who does not have a visa." The form, which thus is a substitute for a visa, goes on to explain that its purpose is to enable the bearer to return to the United States "to await the adjudication of his application for adjustment of status." An application for adjustment of status cannot be filed by someone who is not in the United States, 8 U.S.C. § 1255(i); 8 C.F.R. § 245.1(a), and the application is deemed abandoned if the applicant leaves the country without having been granted advance parole. 8 C.F.R. §§ 245.2(a)(4)(ii)(A)-(B).

Nevertheless, when, his visit completed, the plaintiff tried to return to the United States, the immigration service informed him that his advance parole had been revoked, and it refused to let him enter the country despite the fact that he was carrying his unex-pired Form I-512L. Although the form does say that the bearer may be denied re-entry to the United States if he is "inadmissible," 8 U.S.C. § 1182, the plaintiff has never been determined to be inadmissible.

The government argues that the revocation of his ad-vance parole made him inadmissible because it left him without an entry document, as required by 8 U.S.C. § 1182(a)(7)(A)(i)(I) for admission to the United States. The government is wrong. Form I-512L is a travel document, a substitute for a visa (it says so), the purpose of which is to tell immigration officers that the bearer is entitled to enter the United States. The government argues that the alien needs a fresh grant of parole, after his advance parole terminates, to be readmitted. To require the alien to obtain a fresh grant of parole would contradict both the regulation and the form-the form because it is the equivalent of a visa, and the regulation because it requires that the bearer's status as of when advance parole was granted be restored when the parole ends. That status includes being present in the United States. One of the statutory qualifications for an adjustment of status that is applicable to the class of aliens to which the plaintiff belongs is, as we said, that the alien be in the United States. The status the plaintiff enjoyed before he received advance parole, and hence the status he reacquired by virtue of the regulation upon the termination of his advance parole, was that of an alien eligible for an adjustment of status and therefore, among other things, physically present in the United States. Restoration of his status thus requires his return to this country. So if the revocation of advance parole canceled the plaintiff's Form I-512L travel document, the government was required-subject to exceptions discussed later in this opinion-to issue him another one, or admit him without documentation, in order to honor the promise in the parole regulation to restore an alien whose parole is canceled to his prior status.

It is true that Palmer v. INS, 4 F.3d 482, 484 (7th Cir. 1993), says that "an alien seeking to adjust his status to that of a lawful permanent resident is assimilated to the position of an applicant for entry into the United States." But that was said in a case in which the alien was in the United States and so could pursue his application for adjustment of status. When the applicant is outside the United States, the restoration of his status as an applicant for adjustment of entry requires that he be allowed to return to this country. Of course, so far as entitlement to such an adjustment is concerned, the applicant has no greater rights than that of an applicant who is already in the United States.

Had the plaintiff, instead of trying to fly back to the United States, flown to Canada or Mexico and then smuggled himself into this country without being detected and apprehended, he would have been subject to removal like any other nonlawful resident. But that would not have prevented him from pressing his application for adjustment of status. The status sought is that of lawful resident; the seeker by definition is not a lawful resident. Not being a lawful resident of the United States, the plaintiff was subject to removal before he left the country on advance parole. Yet no such proceeding had ever been brought against him, or, so far as we know, had ever been contemplated. By whatever means or route he got back to the United States, even if it was in a coffin in the cargo hold of an airliner, disguised as Count Dracula (cf. Love at First Bite), he could have continued to seek to adjust his status to that of a lawful resident, until and unless he was removed.

And likewise if the plaintiff had flown directly to the United States from Jordan. But his flight happened to make a stop at Ireland's Shannon Airport. Congress has authorized the establishment of U.S. immigration checkpoints at foreign airports in order to prevent unauthorized persons from flying into the United States, 8 U.S.C. § 1225a; 8 C.F.R. § 235.5; A. James Vazquez-Azpiri & Daniel C. Horne, "The Doorkeeper of Homeland Security: Proposals for the Visa Waiver Program," 16 Stan. L. & Policy Rev. 513, 545-47 (2005), and one of these checkpoints is at Shannon. (There was no checkpoint at Jordan's international airport when the plaintiff flew to Shannon.) Upon entering the Shannon checkpoint the plaintiff was handed a letter from a U.S. immigration official in Chicago informing him that his advance parole had been revoked because he was a "security risk" and he would not be permitted to enter the United States. He flew back to Jordan and has not returned to the United States since; we assume that either before or after being turned away at Shannon he was placed on the U.S. "no fly" list and is thus unable to fly to the United States from any airport. The government has made clear its unwillingness to issue him a visa or other entry document, contends that he has no legal remedy against permanent exclusion from the United States, and deems his application for adjustment of status abandoned because he is outside the country.

Revocation of parole, because it is an exercise of discretionary authority by the immigration authorities, 8 U.S.C. § 1182(d)(5)(A), is not judicially reviewable, as we held in our first decision. Samirah v. O'Connell, supra, 335 F.3d at 548-49; see 8 U.S.C. § 1252(a)(2)(B)(ii); Kucana v. Holder, 130 S. Ct. 827, 836-37 (2010). What we have now to decide is the consequence of revocation. That was not an issue in the previous appeal. The plaintiff had raised it in the district court, but it was not discussed or resolved in our opinion, and so in the further proceedings that followed our reversal of the grant of a preliminary injunction the district court assumed not unreasonably that the issue remained for resolution.

Recall that the parole regulation (8 C.F.R. § 212.5(c)) states that upon revocation of parole the alien is restored to his status before he was paroled. It's true that it also says that parole shall be revoked "upon accomplishment of the purpose for which parole was authorized or when in the opinion of one of [designated] officials . . . neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States." But to read this to mean that when parole is revoked the alien is excluded would make the regulation incoherent, because the alien's pre-existing status as an applicant for an adjustment of status, which termination of parole restores, includes presence in the United States. The meaning rather is that someone whose parole is revoked has no right to remain in the United States, as he is not a lawful resident and is subject therefore to removal, but that if he had applied for an adjustment of status when he was here he can return to the United States so that he can pursue his application. What happens to him after he returns-whether for example he is placed in removal proceedings, and perhaps removed before his application for adjustment of status is acted on-is not determined by his having been restored to his status as a seeker of an adjustment of status. This interpretation is confirmed by Form I-512L, which tells immigration officers to readmit the bearer of the form even though he has no visa.

The government's lawyer told us at argument that being present in the United States and seeking an adjustment of status do not constitute a "status" within the meaning of the regulation. We don't agree, as we explained earlier in distinguishing this case from Palmer. The statute governing adjustment of status sets forth in detail who may seek to adjust his status to that of an alien lawfully admitted for permanent residence. It defines, in other words, the status seeker's status.

Circumstances might, despite the regulation, justify the government in refusing to allow the return of someone whose advance parole had been revoked; for remember that Form I-512L warns the bearer that he won't be readmitted if he's "inadmissible." See, e.g., In re G-A-C-, 22 I. & N. Dec. 83, 88-89 (BIA 1998) (en banc). The only ground of inadmissibility mentioned in the Form I-512 that was given to the plaintiff-8 U.S.C. § 1182(a)(9)(B)(i)-appears (as implied by the section's caption) to affect only aliens who have previously been removed from the United States, and the plaintiff hadn't been; in any event the government has not argued that he was inadmissible under that section.

The statute governing admissibility also authorizes the exclusion of aliens who are believed to endanger national security, 8 U.S.C. § 1182(a)(3), and we shall assume that this provision applies to returning parolees even though it's not mentioned in Form I-512L. Yet even though the letter from the immigration official in Chicago said that the plaintiff was being barred from returning to the United States because he was a "security risk," the government does not invoke section 1182(a)(3) in its appeal and we can't determine from the record whether the plaintiff is a security risk in a relevant sense. The government will not disclose the basis of its supposal that he is one or even the criteria that the immigration official who declared the plaintiff a security risk used in making that determination. And as far as we know there was no internal review in the Justice Department or the Department of Homeland Security of the determination; it was made by DHS and we don't even know whether the Justice Department, while representing DHS in this litigation, agrees with it.

Moreover, except in the case of an "arriving alien"-and for purposes of removal an alien granted advance parole is not deemed to be one upon his return to the United States, see 8 C.F.R. ยง 1.1(q)-inadmissibility must be determined by an immigration judge, ...


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