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United States Court of Appeals

Fifth Circuit

FILED

April 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 05-60119

_________________________

AMIN MEMANJI MOMIN,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

__________________________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

__________________________________________________

Before REAVLEY, CLEMENT, and PRADO, Circuit Judges. 

EDITH BROWN CLEMENT, Circuit Judge. 

In this petition for review of an order of the Board of Immigration Appeals (“BIA”),

Petitioner contends that his application for adjustment of status was denied pursuant to an invalid

regulation. For the reasons that follow, the petition for review is denied. 

I. FACTS AND PROCEEDINGS

Petitioner, AminMemanjiMomin (“Momin”), is a native and citizen ofIndia. He first entered

the United States in March 1996 as a non-immigrant on a student visa. Momin temporarily left the

United States and reentered as a parolee in December 2000 to pursue a family-based visa application
1The family-based application for Momin’s visa and Momin’s application for adjustment of

status were denied because Momin failed to attend his fingerprinting appointment for his status

adjustment application. The INS deemed the application abandoned. Momin divorced his U.S.-

citizen wife in July 2002. 

2

8 C.F.R. § 245.1 provides: 

(a) General. Any alien who is physically present in the United

States, except for an alien who is ineligible to apply for adjustment of

status under paragraph (b) or (c) of this section, may apply for

adjustment of status to that of a lawful permanent resident of the

United States if the applicant is eligible to receive an immigrant visa

and an immigrant visa is immediately available at the time of filing of

the application. 

. . . 

(c) Ineligible aliens. The following categories of aliens are

ineligible to apply for adjustment of status to that of a lawful

permanent resident alien under section 245 of the Act: 

. . . 

(8) Any arriving alien who isin removal proceedings pursuant

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filed by his U.S.-citizen wife and his application for adjustment of status; Momin sought lawful

permanent resident (“LPR”) status. The Immigration and Naturalization Service (“INS”) denied

Momin’s family-based application for a visa and his application for adjustment of status on October

16, 2002.1 On October 24, 2002, Momin was charged as being removable, pursuant to 8 U.S.C. §

1182(a)(7)(A)(i)(I), because he did not possess a valid entry document. 

Before the immigration judge (“IJ”), Momin conceded the charges, i.e., that he was an

arriving alien and not in possession of proper immigration documentation. During the hearing,

however, Momin indicated that he intended to file an employment-based application in support of his

adjustment of status application and asked for a six-week continuance. The IJ granted the

continuance. Two days after the hearing, the INS filed a motion to pretermit Momin’s application

for adjustment of status. In its motion, the INS contended that, under 8 C.F.R. § 1245.1(c)(8),2an
to section 235(b)(1) or section 240 of the Act. . . . 

8 C.F.R. § 245.1. 

8 C.F.R. § 245.1 is identical to § 1245.1. Section 245.1 applies to the immigration agencies

in the Department of Homeland Security (“DHS”) and §1245.1 applies to the Executive Office for

Immigration Review in the Department ofJustice. In March 2003, the relevant functions of the INS

were transferred to the DHS. Regardless, the functions and the regulation in question remain the

same; for the sake of clarity, we refer to the regulation as 8 C.F.R. § 245.1 and the immigration

agency as the INS throughout. See Lopez v. Henley, 416 F.3d 455, 456 n.1 (5th Cir. 2005). 

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arriving alien isineligible to apply for an adjustment ofstatus. Momin did not oppose the motion and,

on May 12, 2003, the IJ ordered that the INS’s motion to pretermit Momin’s application for

adjustment of status be granted. 

A month later, Momin filed a motion to reconsider the IJ’s order. Momin contended that he

was not an arriving alien: According to Momin, he met the exception to the definition of an arriving

alien because he “was granted advance parole . . . in the United States prior to [his] departure from

and return to the United States.” 8 C.F.R. § 1.1(q) (defining “arriving alien”). Momin further argued

that, under 8 C.F.R. § 245.2(a)(1)(i) and (ii), he should be permitted to renew his application for

adjustment of status after substituting his employment-based visa application for his family-based

application. Momin’s argument focused on the facts that, (1) regardless of the type of visa petition

(i.e., family-based or employment-based) used to support the application, the application for

adjustment of status remained largely the same, and (2) the regulation permitted the renewal of the

“adjustment application,” not a particular visa petition. 

The INS responded by asserting that an applicant may substitute visa petitions only when the

petition has not been adjudicated. Where the application has been considered but denied, the INS

argued, the applicant was limited to renewing the application as filed. The INS urged the IJ to

consider the employment-based application as a new application. 
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The IJ agreed with the INS and, on July 10, 2003, issued an order denying the motion to

reconsider and directing that Momin be removed. The IJ addressed Momin’s argument: “[Momin]

seeks to have a second application for adjustment of status, based on an employment-based visa

petition, reviewed and approved by the Court in the instant proceedings. However, nothing in the

regulations allows an alien to substitute an application with another [visa] petitioner.” Based on its

determination that Momin was an arriving alien and that the original adjustment ofstatus application

had not been renewed, the IJ cited, inter alia, 8 C.F.R. § 245.1(c)(8) for the proposition that Momin

was “ineligible for adjustment of status in these removal proceedings.” 

On July 1, 2004, Momin appealed the IJ’s order to the BIA and asserted basically the same

application renewal argument. In response, the INS moved for summary affirmance, arguing that the

IJ had correctly determined that, under 8 C.F.R. § 245.1(c)(8), Momin was not eligible for an

adjustment of status. The BIA agreed with the INS, adopted the IJ’s July 10, 2003, order, and

dismissed Momin’s appeal. In addition, the BIA made the following express findings: (1) Momin

was ineligible for adjustment of status under 8 C.F.R. § 245.1(c)(8); (2) Momin was not within the

exception to the definition of “arriving alien” for one who has been paroled; and (3) Momin’s

employee-based application was different from, not a renewal of, his family-based application for

adjustment of status and, therefore, he was ineligible to adjust status under 8 C.F.R. § 245.2(a)(1).

Momin did not seek judicial review of the BIA’s decision. 

On December 9, 2004, Momin filed a motion to reconsider the BIA’s decision, which the INS

opposed. Momin asserted that he was not an arriving alien, based on the definition of that term in

8 C.F.R. § 1.1(q). The INS pointed out that the exception Momin relied on applied only to paroled

aliens in expedited removal proceedings under 8 U.S.C. § 1225(b)(1)(A)(i), codifying Immigration
3This court granted Momin’s motion to supplement the record with his supplemental motion

pursuant to FED. R. APP. P. 16(b). 

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and NationalityAct (“INA”) § 235(b)(1)(A)(i). Momin was not in an expedited removal proceeding;

rather, Momin’s removal proceeding was pursuant to 8 U.S.C. § 1229a, codifying INA § 240.

Accordingly, the INS continued, Momin was an arriving alien and, as such, ineligible to apply for

adjustment ofstatusto LPR. By order dated January 26, 2005, the BIA denied Momin’s motion for

reconsideration. The BIA held, in accord with 8 C.F.R. § 245.1(c)(8), that Momin was an arriving

alien and barred from adjustment of status because of the pending removal proceedings. 

On January 24, 2005, two days before the BIA issued its order denying Momin’s motion to

reconsider, Momin mailed a pleading titled “Supplement to the Respondent’s Motion to Reconsider

the Board’s Decision” to the BIA. In this supplemental motion, Momin urged the BIA to consider

the First Circuit’s opinion in Succar v. Ashcroft, 394 F.3d 8, 36 (1st Cir. 2005), which concluded that

8 C.F.R. § 245.1(c)(8) was inconsistent with 8 U.S.C. § 1255(a) and, therefore, could not be relied

on to support a removal order. The INS maintains that it did not receive Momin’s supplemental

motion in time to consider it and did not include it in the administrative record.3 Momin now

petitions this court to review the BIA’s denial of his motion for reconsideration. 

II. STANDARD OF REVIEW

This court reviews the BIA’s denial of a motion for reconsideration for abuse of discretion.

Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005). The BIA’s “‘findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Zhang v.

Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B) and noting that the

provision codified the substantial evidence test established in INS v. Elias-Zacarias, 502 U.S. 478,
4Under Chevron, clear congressional directives bind the court and agency alike.

Salazar-Regino v. Trominski, 415 F.3d 436, 443 (5th Cir. 2005). “If, however, the court determines

Congress has not directly addressed the precise question at issue,” a measure of deference, termed

Chevron deference, is afforded the agency, and “the question for the court is whether the agency’s

answer is based on a permissible construction of the statute.” Id.

5Because no other aspects of Momin’s arguments before the BIA and IJ are briefed in his

petition for review, Momin has waived them. Salazar-Regino, 415 F.3d at 452 & n.28. 

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481 (1992)). 

With respect to pure questions of law, legal conclusions are reviewed de novo. Alwan v.

Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004). But, where appropriate under Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984), the BIA’sinterpretation of

an ambiguous provision of the INA is entitled to deference.4Singh v. Gonzales, 436 F.3d 484, 487

(5th Cir. 2006). Chevron deference is also appropriate where the BIA interpretsits own regulations.

Id. (citing Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675 (5th Cir. 2003)). 

III. DISCUSSION

The sole question presented in Momin’s petition for review, and the only argument under

consideration,5is the argument addressed in his January 24 supplemental motion. Momin contends

that 8 C.F.R. § 245.1(c)(8), which deems arriving aliens, who are in removal proceedings, ineligible

to apply for adjustment of status to LPR, is invalid. According to Momin, because the regulation

conflicts with the underlying statute, 8 U.S.C. § 1255(a), it cannot be used to bar his application for

adjustment of status. If Momin’s status adjustment application is valid, the argument continues,

Momin is not subject to removal. Momin’s entire argument turns on the regulation’s validity. Before

addressing the merits of his claim, we must first consider the INS’s position that Momin waived his

argument by failing to present it timely to the BIA. 
6We assume that the BIA did not have Momin’s supplemental motion when it denied his

motion for reconsideration. 

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A. Failure to Raise the Argument with the BIA

The INS arguesin its briefthat theBIA’s decisionwasformed without the benefit ofMomin’s

supplemental argument and that, because he did not timely raise the argument with the BIA, it is

waived.6 We have addressed the failure of a petitioner to seek relief before the BIA: “When a

petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has

adequate mechanismsto address and remedy, the petitioner must raise the issue in a motion to reopen

prior to resorting to review by the courts.” Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir.

2001). Momin contends that there are no “adequate mechanisms to address and remedy” his claim

before the BIA because the BIA lacksjurisdiction to consider the validity ofregulations promulgated

under the INA. 

The BIA has stated that regulations promulgated under the INA “have the force and effect

of law as to [the BIA] and the Immigration Judges.” In re Shanu, 23 I. & N. Dec. 754, 758 (BIA

2005) (citing In re Fede, 20 I. & N. Dec. 35, 36 (BIA 1989)). Momin’s argument is supported by

several unpublished BIA decisions in which the BIA declined to follow Succar because the regional

court of appeals had not adopted the Succar reasoning and the BIA remained bound by the

regulations. See, e.g., In re Toussaint, No. A96 001 425, 2006 WL 211046 (BIA 2006)

(unpublished); In re Meza-Cota, No. A76 030 224, 2005 WL 3802109 (BIA 2005) (unpublished);

In re Cheng, No. A70 583 458, 2005 WL 698333 (BIA 2005) (unpublished). 

The question presented is purely a matter of law. Under our waiver jurisprudence, the failure

to raise such an issue below does not necessarily subject it to waiver: This court may exercise its
7We describe arriving aliens as a sub-class of applicants for admission because the regulation

defines arriving aliens as applicants for admission and then narrows the class by designating

exceptions not pertinent to this analysis. See 8 C.F.R. § 1.1(q). For our purposes, the terms are

interchangeable. 

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discretion to consider pure issues of law not raised below. Freudensprung v. Offshore Technical

Servs., Inc., 379 F.3d 327, 338 n.5 (5th Cir. 2004). See also Atl. Mut. Ins. Co. v. Truck Ins. Exch.,

797 F.2d 1288, 1293 (5th Cir. 1986) (“An issue raised for the first time on appeal generally is not

considered unless it involves a purely legal question or failure to consider it would result in a

miscarriage ofjustice.”). Accordingly, we will consider this pure legal issue—the validity of 8 C.F.R.

§ 245.1(c)(8). 

B. Validity of 8 C.F.R. § 245.1(c)(8)

1. Statutory and Regulatory Framework

Momin contends that 8 C.F.R. § 245.2(c)(8) conflicts with 8 U.S.C. § 1255(a). Before we

focus on the contested regulation, however, a broader perspective of the INA and its statutory and

regulatory framework is required. Under the now-existing version of the INA, aliens fall into one of

two classes: admitted aliens and applicants for admission. The former class is composed of only

those aliens who lawfully entered the United States after inspection and authorization by an

immigration officer. See 8 U.S.C. § 1101(a)(13)(A). The latter class includes those aliens who are

present in the United States but have not been admitted. See 8 U.S.C. § 1225(a)(1). By regulation,

the AttorneyGeneral created a sub-class of applicantsfor admission, the arriving alien.7See 8 C.F.R.

§ 1.1(q). For the purposes of our analysis, an arriving alien is the same as an applicant for admission.

See id. 

Parolees constitute another sub-class of applicants for admission: A parolee is an applicant
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for admission who has been permitted temporarily into the United States by an exercise of the

Attorney General’s discretion. See 8 U.S.C. § 1182(d)(5)(A). Although a parolee is permitted

physically to enter the United States, for the purposes of his immigrant status the parolee remains an

applicant for admission and, if parole is revoked, is subject to whatever actions might be appropriate

for any other applicant for admission. See id.; 8 U.S.C. § 1101(a)(13)(B) (“An alien who is paroled

. . . shall not be considered to have been admitted.”). Moreover, an arriving alien remains an arriving

alien, even if paroled into the United States. See 8 C.F.R. § 1.1(q). An alien who arrives in the

United States on advance parole, as did Momin, is nevertheless an arriving alien. See id. See also In

re Oseiwusu, 22 I. & N. Dec. 19 (BIA 1998). Accordingly, parole allows an alien physically to enter

the United States but does not affect the alien’s status within the immigration framework. 

Another piece of the statutory framework is the concept of removal. For an applicant for

admission, “if the examining immigration officer determines that an alien seeking admission is not

clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal]

proceeding.” 8 U.S.C. § 1225(b)(2). All aliens—admitted aliens and applicants for

admission—could be subject to removal. See 8 U.S.C. §§ 1182(a) (listing classes of aliens ineligible

for visas or admission and, therefore,subject to removal), 1227(a) (listing classes of deportable aliens

subject to removal). Being subject to removal does not necessarily result in removal; the removal

proceeding is simply the mechanism by which the question of admissibility is adjudicated. 

The final noteworthy piece of the statutory framework is the concept ofstatus. As a general

rule, though subject to numerous exceptions, aliens have immigrant status. See 8 U.S.C. §

1101(a)(15) (listing many classes of non-immigrant aliens). Non-immigrants are those aliens who

seek admittance for purposes other than immigration. Id. An alien who has been “lawfully accorded
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the privilege of residing permanently in the United States” has LPR status. 8 U.S.C. § 1101(a)(20).

An LPR is not “regarded as seeking an admission into the United States for purposes of the

immigration laws unless the alien” violates the conditions of the status. 8 U.S.C. § 1101(a)(13)(c).

Armed with an understanding of the statutory framework, we turn to the statute and

regulation at issue. The underlying concern is Momin’s eligibility to seek an adjustment of status to

LPR. Section 1255(a) provides that the status of an alien who has been paroled into the United

States may be adjusted to LPR status at the discretion of, and pursuant to regulations promulgated

by, the Attorney General: 

The status of an alien who wasinspected 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 (1) the alien

makes an application for such adjustment, (2) the alien is eligible to

receive an immigrant visa and is admissible to the United States for

permanent residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed. 

8 U.S.C. § 1255(a). Under this statutory provision, the class of admitted aliens and the class of

paroled applicants for admission may, at the discretion of the Attorney General, have their status

adjusted to LPR. 

The regulation in question severs a sub-class of aliens—those who are both “arriving aliens”

(including those paroled into the United States) and in removal proceedings—from the class of

parolees eligible for adjustment of status to LPR. Under the regulation, this sub-class of aliens is

ineligible to apply for status adjustment. See 8 C.F.R. § 245.1(c)(8). Momin challenges the validity

of the regulation as contrary to the statutory framework. 
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2. Sister Circuits’ Jurisprudence

We do not consider this question in a vacuum. The parties briefed the First Circuit’s holding

in Succar. Since the First Circuit first spoke, the Third Circuit, the Ninth Circuit, two panels from

the EighthCircuit, and, most recently, the EleventhCircuit have had occasion to addressthe question

we consider. The five circuits to address the issue have reached dissimilar results with even more

dissimilar reasoning. And while these well-reasoned opinions lack uniformity, they provide analysis

and research which we carefully consider. 

a. Invalid under Chevron Step One

In Succar, the First Circuit, performing a Chevron step one analysis, considered the statutory

text and the context of the statutory scheme to determine that Congress had spoken clearly to aliens’

eligibility for status adjustment and that the regulation’s additional limitation on the eligible class was

“inconsistent with that congressional determination.” 394 F.3d at 29. The First Circuit later referred

to the statute’s legislative history to confirm its reading of the statute. Id. at 32. 

In its plain-language review ofthe statute, the Succar panelfound that Congress had “defined

certain categories of aliens who were eligible to apply for adjustment of status, . . . and refined the

definition by specifically excluding certain aliens from eligibility.” Id. at 24. Because of the express

pronouncements in § 1255 regarding eligibility for status adjustment, the First Circuit held that

“Congress unambiguously reserved to itself the determination of who is eligible to apply for

adjustment ofstatus relief.” Id. The regulation’s limitation on parolees’ eligibility conflicts with the

statute’s plain language, according to the Succar court. 

When the First Circuit considered the context of the statutory scheme, it drew two

conclusions. The Succar court first determined that “the exclusion of parolees in removal
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proceedings renders ineligible most of the class that Congress rendered eligible by including

parolees.” Id. at 26. Second, the court stated that “the congressional choice to delegate to the

Attorney General some circumscribed discretion over the ultimate decision of who is granted

adjustment ofstatusis not authorization for discretion in other areas.” Id. (footnote omitted). These

conclusions compelled the court to deem the regulation invalid. 

The first conclusion was based, in part, on the court’s factual understanding that “most

arriving alien parolees are placed in removal proceedings.” Id. at 18. This representation was made

to the court and not disputed by the Attorney General. Id. at 21. Also, the court noted that an

applicant for admission who cannot demonstrate admissibility “clearly and beyond a doubt” must be

placed in removal proceedings. Id. at 27 (discussing 8 U.S.C. § 1225(b)(2)(A)). This view of the

operation of the INA as a whole and of the practical effect of the regulation led the Succar court to

find that the regulation’s carve-out improperly subsumed the congressional grant of eligibility to the

parolee class of aliens. 

The First Circuit’s second conclusion—addressing the Attorney General’s discretion—was

a response to the argument that the AttorneyGeneralmayexercise his discretion byrulemaking rather

than case-by-case adjudication pursuant to Lopez v. Davis, 531 U.S. 230 (2001). In Lopez, the

Supreme Court upheld a regulation of the Bureau of Prisons (the “Bureau”) categorically denying

early release for certain prisoners as an appropriate exercise of the Bureau’s discretion. 531 U.S. at

233. The authorizing statute in question in Lopez eliminated a class of prisoners from eligibility for

early release and left the release determination of other prisoners to the discretion of the Bureau. Id.

at 238–41 (discussing 18 U.S.C. § 3621(e)(2)(B)). The Court determined that, aside from excluding

a class of prisoners from eligibility for the reduction in sentence, “Congress ha[d] not identified any
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further circumstance in which the Bureau either must grant the reduction, or is forbidden to do so.”

Id. at 242. Because the Bureau ultimately was vested with discretion to decide on the prisoners’

release, the Court held that the Bureau was within its authority to exclude categorically classes of

prisoners by rule: “The Bureau is not required continually to revisit ‘issues that may be established

fairly and efficiently in a single rulemaking proceeding.’” Id. at 244 (quoting Heckler v. Campbell,

461 U.S. 458, 467 (1983)). The First Circuit distinguished Lopez, asserting that, in the statute at

issue in Lopez, Congress had been silent and that was not the case with respect to the INA. Succar,

394 F.3d at 29. Accordingly, the Succar court deemed the Attorney General’s resort to rulemaking

contrary to the plain language of the statute. Id. 

Having concluded that the text and statutory structure conflicted with the regulation, the

Succar court reviewed the INA’slegislative history. Congress, the First Circuit determined, intended

to eliminate unnecessary trips out of the United States in order to be eligible to apply for admission.

Id. at 33–34 (discussing S. REP. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3125).

Based on thisreview of the legislative history, the First Circuit concluded that the regulation actually

recreated a problemthat Congressintended to eliminate when enacting the statute because, under the

regulation, parolees subject to removal would have to leave the country to become eligible to adjust

status. Id. at 34. As the legislative history confirmed its understanding of the statute’s language and

context, the First Circuit declared 8 C.F.R. § 245.1(c)(8) invalid under Chevron step one and vacated

the BIA’s removal order. Id. at 34, 36. The Ninth Circuit, in Bona v. Gonzales, 425 F.3d 663, 668

(9th Cir. 2005), expressly adopted and followed Succar. 

b. Invalid under Chevron Step Two

The Third Circuit also invalidated 8 C.F.R. § 245.1(c)(8) but did so under Chevron step two.
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Zheng v. Gonzales, 422 F.3d 98, 120 (3d Cir. 2005). The Third Circuit disagreed with the First

Circuit’s conclusion that Lopez did not govern the Chevron step one result. Id. at 116. The Zheng

court, applying Lopez, stated that “[t]he fact that Congress declared some categories of aliens

ineligible for adjustment by statute does not in itself conclusively prove that the Attorney General

cannot declare other categories ineligible by regulation.” Id. 

Moving to the second step of Chevron, the Zheng court noted that if the regulation was to

survive, it would have to be both “‘reasonable in light of the legislature’s revealed design’” and

“‘based on a permissible construction of the statute.’” Id. (quoting NationsBank of N.C., N.A. v.

Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995), and Chevron, 467 U.S. at 843). Looking

to the operation of the INA as a whole the Zheng court determined “that virtually all parolees will

be in removal proceedings.” Id. at 117. In addition to considering Succar, the Zheng court found

that the statutory structure was such that “parolees will, by default, be in removal proceedings.” Id.

Based on this understanding of the INA’s operation, the Third Circuit determined “that Congress

intended that the mere fact of removal proceedings would not render an alien ineligible to apply for

adjustment of status.” Id. at 118. 

According to the Zheng court, 8 C.F.R. § 245.1(c)(8) “rendered most aliens paroled into the

United Statesineligible to apply for adjustment ofstatus.” Id. Although the Government contended

that some aliens in removal proceedings might be eligible to adjust status, the Third Circuit deemed

the exception too narrow to capture congressional intent that parolees be able to apply for status

adjustment. Id. at 119. Ultimately, the Zheng court stated that “[f]or all practical purposes, . . . 8

C.F.R. § [245.1(c)(8)] renders paroled aliensineligible to apply for adjustment ofstatus.” Id. Based

on its practical understanding of the statute’s function and the effect of the regulation, the Zheng
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court concluded that “[t]he conflict between regulation and statute is clear and unmistakable.” Id.

As such, the regulation, which, according to the Third Circuit, “essentially reverses the eligibility

structure set out by Congress,” was held invalid under Chevron step two. Id. at 120. 

Recently, the Eleventh Circuit, in Scheerer v. U.S. Attorney General, — F.3d —, Nos. 04-

16231 & 05-11303, 2006 WL 947680, at *7 (11th Cir. Apr. 13, 2006), followed the Zheng court’s

reasoning and held 8 C.F.R. § 245.1(c)(8) invalid. The Eleventh Circuit adhered to Lopez and held

that the AttorneyGeneralmay exercise his discretion byrulemaking in lieu of adjudication. Scheerer,

2006 WL 947680, at *7. The Scheerer court, like Succar, Bona, and Zheng, based its conclusion

on an understanding that “[t]he vast majority of aliens paroled into the United States will . . . be in

removal proceedings by virtue of the statutory scheme.” Id. at *7. 

c. Valid under Chevron

The Eighth Circuit is the only circuit court to deem 8 C.F.R. § 245.1(c)(8) valid, and it has

done so in a pair of opinions; each opinion drew a dissent arguing in favor of invalidating the

regulation. See Mouelle v. Gonzales, 416 F.3d 923, 930 (8th Cir. 2005); Geach v. Chertoff, — F.3d

—, No. 05-1405, 2006 WL 508101, at *2–3 (8th Cir. Mar. 3, 2006) (following Mouelle). The

Mouelle court, like both Zheng and Scheerer, followed the Supreme Court’s directive in Lopez and

recognized that the AttorneyGeneral’s use ofrulemaking was “not invalid as contrary to the statute.”

416 F.3d at 930. 

Having satisfied itself with the manner of regulation, the Mouelle court followed Lopez and

inquired whether the gap-filling regulation was “‘reasonable in light of the legislature’s revealed

design.’” Id. (quoting Lopez, 531 U.S. at 242). At this point, the Eighth Circuit referred to the

Attorney General’s commentary in promulgating the regulation, which indicated that the regulation
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responded to congressional intent to expedite removal and avoid lengthening removal proceedings.

Id. (citing Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,312–13, 10,326–27

(Mar. 6, 1997) (interimrule with request for comments) (“InterimRule”)). The Mouelle court noted

the broad discretion granted the Attorney General in the statute and determined that the fact that an

arriving alien is in a removal proceeding “is a characteristic that is a reasonably sound basis for

choosing not to grant relief under 8 U.S.C. § 1255[(a)].” Id. To the contention in Succar (and the

same contention later in Zheng, Bona, and Scheerer) that the regulation renders an entire class of

aliens—intended by Congress to be eligible for status adjustment—ineligible for status adjustment,

the Mouelle court responded: 

The court in Succar opined that the relevant

characteristic—placement in removal proceedings—effectively barred

most aliens who had been paroled from adjusting status because most

paroled aliens were in removal proceedings. Thus, the court

concluded, the regulation was contrary to 8 U.S.C. § 1255(a) because

paroled aliens were among those eligible to adjust status under the

statute. As an evidentiary matter, we cannot conclude that the

regulation bars most paroled aliens from adjusting status. Unlike the

court in Succar, we have not been “informed,” of that fact. And in

this case the Attorney General cites DHS statistics suggesting that

only about two to three percent of parolees who entered the United

States in 2003 have been placed in removal proceedings. In fact, the

INS did not initiate removal proceedings against the Mouelles until

April 15, 1998, over ten months after the Mouelles were paroled into

the United States. Moreover, even if we assumed that most aliens

paroled into the United States were placed in removal proceedings, 8

U.S.C. § 1255 does not show a congressional intent to vest a few,

most, or all paroled aliens with the right to adjust their status. Relief

remains discretionary.

Id. at 930 n.9 (internal citations omitted). Because the regulation was, according to the Eighth

Circuit, a valid exercise of expressly-granted discretion, the court upheld 8 C.F.R. § 245.1(c)(8). 

3. Analysis
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We agree with the Eighth Circuit that 8 C.F.R. § 245.1(c)(8) is a valid exercise of the

discretion granted byCongressto the Attorney General. For the reasons that follow, we respectfully

disagree with both the Succar and Zheng lines of reasoning. In determining the validity of the

regulation, we must answer two questions: (1) whether the Attorney General was entitled to

implement a rule rather than adjudicate status adjustments on a case-by-case base; and, (2) if so,

whether the rule promulgated was arbitrary, capricious, or manifestly contrary to the statute. In sum,

we hold that the Attorney General may choose to exercise his discretion favorably or unfavorably by

rulemaking rather than adjudication. Moreover, we hold that the categorical exclusion expressed in

8 C.F.R. § 245.1(c)(8) is a valid exercise of the Attorney General’s congressionally-granted

discretion. 

a. Exercise of Discretion by Rulemaking

Of the courts of appeals to consider this issue, the Third, Eighth, and Eleventh Circuits all

agree, as do we, that the AttorneyGeneralmayexercise his discretion by rulemaking rather than caseby-case adjudication. Congress identified classes of aliens that may have their status adjusted at the

Attorney General’s discretion, see 8 U.S.C. § 1255(a), and Congress also identified various subclasses of aliensthat are ineligible forstatus adjustments,see, e.g., 8 U.S.C. § 1255(c). The First and

Ninth Circuits found these tandem congressional mandates sufficient to conclude that “Congress

unambiguously reserved to itselfthe determination of who is eligible to apply for adjustment ofstatus

relief,” and that an additional rule-based limitation on an alien’s eligibility to apply was contrary to

that clear statement of intent. Succar, 394 F.3d at 24. See also Bona, 425 F.3d at 670. 

But Congress did not clearly express an intent to withhold the Attorney General’s authority

to resolve matters of general applicability through rulemaking. Absent such an exclusion, resort to
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rulemaking is within the discretion afforded the Attorney General. See Am. Hosp. Ass'n v. N.L.R.B.,

499 U.S. 606, 612 (1991) (noting that resort to rulemaking is proper even where the statute requires

the agency to make a determination “in each case”). Moreover, the fact that Congress chose to

exclude certain classes of aliens from eligibility does not mean that, where complete discretion to

grant relief is vested in the Attorney General, the Attorney General cannot opt to exercise the

discretion and exclude other classes by regulation. Accord Mouelle, 416 F.3d at 928–29; Zheng, 422

F.3d at 116; Geach, 2006 WL 508101, at *3; Scheerer, 2006 WL 947680, at *7. 

Indeed, the Supreme Court’s holding in Lopez compels this conclusion: 

We also reject [the] argument . . . that the agency must not make

categoricalexclusions, but mayrelyonlyoncase-by-case assessments.

“[E]ven if a statutory scheme requires individualized 

determinations,” which this scheme does not, “the decisionmaker has

the authority to rely on rulemaking to resolve certain issues of general

applicability unless Congress clearly expresses an intent to withhold

that authority.” The approach pressed by Lopez—case-by-case

decisionmaking in thousands of cases each year—could invite

favoritism, disunity, and inconsistency. The [agency] is not required

continually to revisit “issues that may be established fairly and

efficiently in a single rulemaking proceeding.” 

531 U.S. at 243–44 (internal citations omitted). See also Mourning v. Family Publ’ns. Serv., Inc.,

411 U.S. 356, 372 (1973) (rejecting a similar argument and commenting that “[t]o accept [the]

argument would undermine the flexibility sought in vesting broad rulemaking authority in an

administrative agency”). 

In any event, we need not guess at the Attorney General’s motivation. The Attorney

General’s commentary accompanying the rule as promulgated makes clear that the regulation is a

categorical exercise of discretion: “Adjustment of status is granted in the discretion of the Attorney

General. . . . [T]he Attorney General has determined that she will not favorably exercise her
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discretion to adjust the status of arriving aliens who are . . . placed in removal proceedings.”

Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 452 (Jan. 3, 1997) (proposed rule)

(“Proposed Rule”). See also Interim Rule, 62 Fed. Reg. at 10,327 (“In response to the commenters

who suggested this policyexceeded the AttorneyGeneral’sstatutoryauthority, it is noted thatsection

245 of the Act clearly and unambiguously states that adjustment ofstatusis a discretionary decision,

subject to such regulatory limitations as the Attorney General may prescribe.”). The Attorney

General’s approach is entirely consistent with that taken by the agency—and approved of by the

Court—in Lopez. We follow Lopez and conclude that, because 8 U.S.C. § 1255(a) is silent on the

manner in which the AttorneyGeneral isto exercise his discretion, the Attorney General can exercise

his discretion through rulemaking in matters of general applicability. 531 U.S. at 244. Accord

Mouelle, 416 F.3d at 928–29; Zheng, 422 F.3d at 116; Geach, 2006 WL 508101, at *3; Scheerer,

2006 WL 947680, at *7. 

b. Exclusion of Arriving Aliens in Removal Proceedings

Having concluded that the Attorney General validly exercised his discretion by rulemaking,

we now turn to the substance of the rule. “When Congress expressly delegates to an administrative

agency the authority to make specific policy determinations, courts must give the agency’s decision

controlling weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’” ABF

Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 324 (1994) (quoting Chevron, 467 U.S. at 844).

Although one of the discussed cases characterizes the discretion vested in the Attorney General as

“circumscribed,” Succar, 394 F.3d at 26, we find no support forsuch limiting language in the statute.

See 8 U.S.C. § 1255(a) (providing that the status of an alien “may be adjusted [to LPR] by the

Attorney General, in his discretion and under such regulations as he may prescribe”). The Supreme
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Court has noted that “express congressional authorizations to engage in the process of rulemaking

or adjudication that produces regulations or rulings for which deference is claimed” is indicative of

an entitlement to deferential treatment by reviewing courts. United States v. Mead Corp., 533 U.S.

218, 229 (2001). The statute clearly vests in the Attorney General such authority to promulgate

regulations. See 8 U.S.C. § 1255(a). Additionally, the Supreme Court has “recognized that judicial

deference to the ExecutiveBranch is especiallyappropriate in the immigration context where officials

‘exercise especially sensitive politicalfunctionsthat implicate questions of foreign relations.’” I.N.S.

v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting I.N.S. v. Abudu, 485 U.S. 94, 110 (1988)).

The courts that deem 8 C.F.R. § 245.1(c)(8) invalid allshare a common trait; they equate the

entire class of parolees with the sub-class of parolees who are subject to removal proceedings. See

Succar, 394 F.3d at 21, 26 (basing its understanding on an uncontested petitioner’s statement);

Zheng, 422 F.3d at 117–18 (basing its belief on Succar and the statutory structure); Bona, 425 F.3d

at 670 (basing its understanding on Succar and the court’s view of the “practical effect” of the

regulation); Scheerer, 2006 WL 947680, at *7–8 (basing its belief on Succar and the statutory

structure). Because the regulation makes the latter class ineligible for relief and the statute makes the

former class eligible for relief (though subject to the Attorney General’s discretion), those circuits

understand the regulation to be in conflict with the statute and overallstatutory design. See Succar,

394 F.3d at 21, 26 (“[T]he exclusion of parolees in removal proceedings renders ineligible most of

the class that Congress rendered eligible by including parolees.”); Zheng, 422 F.3d at 119 (“We are

thus faced with a statute providing that, in general, aliens paroled into the United States may apply

to adjust their status, and a regulation providing that, in general, they may not.”); Bona, 425 F.3d at
8We note that, in Mouelle, the court was provided with statisticsindicating that, in 2003, only

two to three percent of parolees entering the United States were placed in removal proceedings. 416

F.3d at 930 n.9. Further, we note that the facts of the cases discussed do little to support the

understanding that all parolees are subject to removal proceedings: The Mouelles were paroled for

ten months before being subject to removal proceedings, see Mouelle, 416 F.3d at 925; Zheng was

paroled for oversix years before he was charged asremovable, see Zheng, 422 F.3d at 103–04;Bona

was paroled for over eight years before being placed in removal proceedings, see Bona, 425 F.3d at

664; Geach was on parole for seven years before being placed in exclusion proceedings, see Geach,

2006 WL 508101, at *1; and Scheerer was a parolee for eight months before receiving a notice to

appearfor removalproceedings,see Scheerer, 2006 WL 947680, at *1. Only Succar appears to have

been paroled and placed in removal proceedings simultaneously. See Succar, 394 F.3d at 11. 

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670 (“By entirely excluding a category of aliens from the ability to apply for adjustment, who by

statute are eligible to apply for such relief, the regulation [is invalid].”); Scheerer, 2006 WL 947680,

at *8 (“Thus, whereas the statute, § 1255, contemplates that parolees—arriving aliens, virtually all

of whom are placed in removal proceedings—should be eligible to apply for an adjustment ofstatus,

the regulation, 8 C.F.R. § [245.1(c)(8)], excludes the same class from eligibility.”). This estimation

as to the practical effect of the regulation and the statutory context forms the core of the rationale

for finding the regulation invalid. 

Like the Eighth Circuit, we have no evidentiary basis to reach the conclusion drawn by these

other circuits. Neither party has asserted, much less shown, that the class identified in 8 U.S.C. §

1255(a), i.e., admitted aliens and parolees, is coterminous with the class identified in 8 C.F.R. §

245.1(c)(8), i.e., arriving aliens(including parolees) in removalproceedings. Indeed, the limited facts

before us do not bear out this relationship.8 Momin had been in the United States as a parolee for

over two years before he was charged as removable. He obtained advance parole and was charged

as removable only when his original application for status adjustment was denied. Without data, it

is impossible for this court to opine on the likelihood that the vast majority of (or, for that matter,

many) arriving aliens are placed immediately into removal proceedings. It would be wholly
9Contra Succar, 394 F.3d at 27 (“Congress purposefully classified paroled individuals as

‘inadmissible,’ and it also determined that they should generally be placed in removal proceedings.”);

Zheng, 422 F.3d at 117 (stating that “any parolee—that is, any alien who has been inspected but not

admitted—will necessarily be in removal proceedings”); Bona, 425 F.3d at 670 (equating parolees

generally with parolees subject to removal proceedings); Scheerer, 2006 WL 947680, at *7 (“It is

clear from the statutory text, therefore, that Congress intended for virtually all parolees to be in

removal proceedings.”). 

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inappropriate for a reviewing court to hold a regulation invalid on the basis such an assumption. 

Nor does our understanding of the statutory structure lead us to believe that the two classes

are so similar as to find the regulation to be manifestly contrary to the statute. The INA and its

regulations clearly provide that at least some parolees will not be placed into removal proceedings.

And nowhere doesthe INAmandate that parolees must be placed into removalproceedings. Because

this court is not satisfied that parolees necessarily are subject to removal proceedings, we cannot

conclude that the regulation is manifestly contrary to the statute.9 Respectfully, we disagree with the

reasoning of the Succar and Zheng lines of cases. 

Absent this assumed-but-not-proved conflict, we have been presented with no reason to hold

the regulation invalid. In light of the stated reasons for the regulation, see Mouelle, 416 F.3d 930

(discussing Proposed Rule, 62 Fed. Reg. at 452, and Interim Rule, 62 Fed. Reg. at 10,326–27), the

Attorney General did not act arbitrarily, capriciously, or manifestly contrary to the statute in opting

to decline to exercise his discretion favorably for parolees that are subject to removal proceedings.

Accordingly, 8 C.F.R. § 245.1(c)(8) is a valid exercise of the Attorney General’s discretion under 8

U.S.C. § 1255(a). 

IV. CONCLUSION

The petition for review is DENIED.