- 1 - 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, Peti tioner,
versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent.

__________________________________________________

Peti tion 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 peti

tion fo r review of an order of the Board of Im migration Appeals (“BIA”), P etiti oner contends that hi s 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 Peti tioner, Amin Memanji Mom in (“Momin”), is a native and cit izen of India. He first entered the United States in March 1996 as a non-immigrant on a student visa. Mom in t emporarily left the Unit ed States and reentered as a parolee in December 2000 to pursue a family-based visa application1 The family-based application fo r Mom in’s visa and Momin’s application for adjustment of status were denied because Mom in failed to attend his fingerprint ing appoi nt ment fo r his status adj ustment application. The INS deemed the application abandoned. Momin divorced his U.S.- cit izen 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 fo r an alien who is ineligible to apply fo r adjustment of status under paragraph (b) or (c) of th is section, may apply for adjustment of status to that of a lawful permanent resident of the Unit ed States i f t he applicant is eligible to receive an immigrant visa and an immigrant visa is immediat ely available at th e ti me of filing o f the application.

. . . (c) Ineligible aliens. The following categories o f aliens are ineligible to apply fo r adjustment of status to that of a lawful permanent resident alien under section 245 of the Act:

. . . (8) Any arri

ving alien who is in removal proceedings pursuant

- 2 - filed by his U.S.-ci

tizen wife and his application fo r adjustment of st atus; Mom in so ught lawful permanent resident (“ LPR”) status. The Im migration and Naturalization Service (“INS”) denied Mom in’s family-based application fo r a visa and his application fo r 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 immigrat io n judg e (“IJ”), Mom in co nceded the charges, i .e. , that he was an arri ving alien and not in possession of proper immigrat io n documentation. During the hearing, however, Mom

in indicated that he int ended to file an employment -based application in support of his adjustment of status application and asked fo r a six-week con tinuance. The IJ granted the conti nuance. Two days after the hearing, the INS filed a motion to pretermit Momin’s application fo r adjustment of status. In its motion, the INS contended that, under 8 C.F.R. § 1245.1(c)(8), 2 anto 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 t he Department of Homeland Security (“DHS”) and §1245.1 applies to the Executive Office for Im migration Review in the Department of Justice. In March 2003, the relevant functions of the INS were transferred to the DHS. Regardless, the functions and t he regulation in question remain the same; fo r 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). - 3 - arri ving alien is ineligible to apply fo r an adjustment of status. Mom in did not oppose the motion and,
on May 12, 2003, the IJ ordered that th e INS’s mo tion to preterm it Mom in’s application fo r adjustment of status be granted. A mo nt h lat er, Mom

in filed a mo tion to reconsider the IJ’s order. Mom in co nt ended that he
was not an arri

ving alien: According to Momin, he met the exception to the definition of an arriving alien because he “was granted advance parole . . . i n t he United States prior to [his] departure from and return to the Unit ed 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 app licat io n fo r adjustment of status af

ter substi tuti ng his employment-based visa application for his family-based application. Mom

in’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 th e application, th e application fo r 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 peti tions only when the peti tion has not been adjudicated. Where the application has been considered but denied, the INS argued, the applicant was limit ed to renewing the application as filed. The INS urged the IJ to consider the employment-based application as a new application.- 4 -

The IJ agreed wit h t he INS and, on July 10, 2003, issued an order denying the motion to reconsider and directing that Mom in be removed. The IJ addressed Momin’s argument: “[Momin] seeks to have a second application fo r adjustment of status, based on an employment-based visa peti tion, reviewed and approved by the Court in the instant proceedings. However, nothing in the regulations allo ws an alien to substitute an application wit h another [visa] peti tioner.” Based on its determ inat io n that Mom

in was an arri

ving alien and that the original adjustment of status application had not been renewed, the IJ cit ed, inter alia , 8 C.F.R. § 245.1(c)(8) fo r the proposi tion that Mom

in was “ineligible fo r 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 correctl

y determ ined that, under 8 C.F.R. § 245.1(c)(8), Mom in was not eligible for an adjustment of status. The BIA agreed with the INS, adopted the IJ’s July 10, 2003, order, and dismissed Mom

in’s appeal. In addition, the BIA made th e fo llo wing express findings: (1) Mom in was ineligible fo r adjustment of status under 8 C.F.R. § 245.1(c)(8); (2) Mom in was not within the exception to the definit io n of “arriving alien” fo r one who has bee n paroled; and (3) Mom in’s employee-based application was different from, not a renewal of , his family-based applicati on for adjustment of status and, therefore, he was ineligible to adjust status under 8 C.F.R. § 245.2(a)(1). Mom in did not seek judicial review of the BIA’s decision. On December 9, 2004, Mom in filed a mo tion to reconsider th e BIA’s decision, which the INS opposed. Mom

in asserted that he was not an arriving alien, based on the definit io n 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 Immigration3 This court granted Mom in’s mo tion to supplement the record wit h his supplemental mo tion pursuant to F ED . R. APP . P. 16(b). - 5 - and Nationality Act (“INA”) § 235(b)(1)(A)(i). Mom in was not in an expedited removal proceeding; rather, Mom

in’s removal proceeding was pursuant to 8 U.S.C. § 1229a, codi fying INA § 240. Accordingl

y, th e INS con

ti nued, Momin was an arriving alien and, as such, ineligible to apply for adjustment of status to LPR. By o rder 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 it s order denying Mom in’s mo tion to reconsider, Mom

in mailed a pleading ti

tled “Supplement to th e Respondent’s Motion to Reconsider the Board’s Decision” to the BIA. In this supplemental mo tion, Mom in urged the BIA to consider the First Circuit’s opi

nio n in Succar v. Ashcroft , 394 F.3d 8, 36 (1st Cir. 2005), which concluded that 8 C.F.R. § 245.1(c)(8) was inco nsist ent wit h 8 U.S.C. § 1255(a) and, th erefore, could not be relied
on to support a removal order. The INS maintains that it did not receive Mo min’s supplemental
mo tion in ti

me to consider it and did not include it in th e administ rati ve record. 3 Mom

in now peti tions 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 mo tion fo r reconsideration fo r 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 com pell ed to conclude to th e contrary .’” Z hang v. Gonzales , 432 F.3d 339, 344 (5th Cir. 2005) (quoti ng 8 U.S.C. § 1252(b)(4)(B) and noti ng that the provision codified the substantial evidence test established in INS v. Elias-Zacarias , 502 U.S. 478,4 Under Che vron , 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.

5 Because no other aspects of Mom in’s arguments before the BIA and IJ are br iefed in his peti tion for review, Momin has waived them. Salazar-Regino , 415 F.3d at 452 & n.28. - 6 - 481 (1992)). Wit h respect to pure questions of law, legal concl usions are reviewed de novo. A lw an v. Ashcroft , 388 F.3d 507, 510 (5th Cir. 2004). But, where appropriate under C hevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842–43 (1984), the BIA’s int erpretation of
an ambiguous provision of the INA is entitled to deference. 4 Singh v. Gonzales , 436 F.3d 484, 487 (5th Cir. 2006). C

hevron deference is also appropri ate where th e BIA int erprets it s own regulations. Id . (ci ti ng Navarro-Miranda v. Ashcroft , 330 F.3d 672, 675 (5th Cir. 2003)). III. DISCUSSION T he sole question presented in Momin’s petition for review, and the only argument under consideration, 5 is the argument addressed in his January 24 supplemental mo tion. Mom in co nt ends that 8 C.F.R. § 245.1(c)(8), which deems arri ving aliens, who are in removal proceedings, ineligible to ap ply fo r adjustment of status to LPR, is invalid. According to Momin, because the regulation conflicts wit h the underlying statute, 8 U.S.C. § 1255(a), it cannot be used to bar his application fo r adjustment of status. If Momin’s status adjustment application is valid, the argument continues, Mom in is not subject to removal. Mom in’s entire argument turns on the regulation’s validity. Before addressing the merit s of his claim, we must fir st consider the INS’s posi tion that Mom

in waived his argument by failing to present it timely to the BIA.6 We assume that the BIA did not have Mom in’s supp lement al mo tion when it denied his mo tion for reconsideration. - 7 - A. Failure to Raise the Argument with the BIA The INS argues in it s brief that the BIA’s decision was fo rmed wit hout th e benefit of Mom in’s supplemental argume nt and that, because he did not timely raise the argument with the BIA, it is waived. 6 We have addressed the failure of a petitio ner to seek relief befo re the BIA: “When a peti tioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the peti tioner must raise the issue in a mo tion to reopen prior to re s orti

ng to review by the courts.” G oonsuw an v. Ashcroft , 252 F.3d 383, 390 (5th Cir. 2001). Mom

in co nt ends that there are no “adequate mechanisms to address and remedy” his claim before the BIA because the BIA lacks jurisdiction to consider th e validit y of regulations prom ulgated under the INA. The BIA has stated that regulations prom ulgated 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 fo llo w Succar because th e regional court of appeals had not adopted the Succar reasoni ng and the BIA remained bound by the regulations. S

ee, 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 mat ter of law. Under our waiver jurisprudence, the failure to raise such an issue belo w does not necessarily subject it to waiver: This court may exercise its7 We describe arri ving aliens as a sub-class of applicants fo r admission because th e regulation defines arriving aliens as applicants for admission and then narrows the class by designat ing exceptions not perti

nent to this analysis. S

ee 8 C .F.R. § 1.1(q). For our purposes, the terms are int erchangeable. - 8 - discretion to consider pure issues of law not raised belo w. F reudensprung v. Offshore Technical Servs., Inc. , 379 F.3d 327, 338 n.5 (5th Cir. 2004). S ee also Atl. Mut. Ins. Co. v. Truck Ins. Exch. , 797 F.2d 1288, 1293 (5th Cir. 1986) (“An issue raised fo r the fir st ti me on appeal generally is not considered unless it invo lves a purel y legal question or failure to consider it would result in a miscarriage of

justice.”). Accordingly, we will consider this pure legal issue—the validity of 8 C.F.R. § 245.1(c)(8). B. Validit y o f 8 C.F.R. § 245.1(c)(8)

1. Statutory and Regulatory Framework Mom in co nt ends that 8 C.F.R. § 245.2(c)(8) conflicts with 8 U.S.C. § 1255(a). Before we fo cus 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: admit ted aliens and applicants for admission. The former class is composed of only those aliens who lawfully entered the Unit ed States af ter i nspection and authorization by an immigrat io n of

ficer. S ee 8 U.S.C. § 1101(a)(13)(A). The latter class includes those aliens who are present in the Unit ed States but have not been admit ted. S ee 8 U.S.C. § 1225(a)(1). By regulation, the At torney General created a sub-class of applicants fo r admission, the arri ving alien. 7 S

ee 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- 9 -

fo r admission who has been permitted tem porarily int o the Unit ed States by an exercise of the At torney Gene ral’s discretion. S ee 8 U.S.C. § 1182(d)(5)(A). Alt hough a parolee is permitted physically to enter the Unit ed States, fo r the purposes of his immigrant status the parolee remains an applicant fo r admission and, if parole is revoked, is subject to whatever actions might be appropri ate fo r any other applicant fo r admission. S ee id. ; 8 U.S.C. § 1101(a)(13)(B) (“An alien who is paroled

. . . shall not be considered to have been admit ted.”). Moreover, an arriving alien remains an arriving alien, even if paroled int o the Unit ed States. S ee 8 C.F.R. § 1.1(q). An alien who arri ves in t he Unit ed States on advance parole, as did Mom in, is nevertheless an arri

ving alien. S

ee id. See also In

re Oseiw usu , 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. Ano ther piece of th e statutory framework is the concept of removal. For an applicant for admission, “if the examining immigrat io n of ficer determ

ines that an alien seeking a dmissio n is not clearly and beyo nd a doubt entitled to be admit ted, th e alien shall be detained for a [removal] proceeding.” 8 U.S.C. § 1225(b)(2). All aliens—admit ted aliens and applicants for admission—could be subject to removal. S ee 8 U.S.C. §§ 1182(a) (list ing classes of aliens ineligible fo r visas or admission and, therefore, subject to removal), 1227(a) (list ing classes of deportable aliens subject to removal). Being subject to removal does not necessarily result in removal; t he 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 of status. As a general rule, though subject to numerous exceptions, aliens have immigrant status. S ee 8 U.S.C. § 1101(a)(15) (list ing many class es of non-immigrant aliens). Non-immigrants are those aliens who seek admit tance fo r purposes other than immigrat io n. I d
. An alien who has been “lawfully accorded- 10 -

the pri vilege of residing permanently in th e Unit ed 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 immigrat io n laws unless the alien” vio lat es th e conditions of th e status. 8 U.S.C. § 1101(a)(13)(c).

Armed wit h 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 th e discretion of, and pursuant to regulations promulgated by, the Attorney General:

The status of an alien who was inspected and admit ted or paroled int o the Unit ed States
. . . may be adjusted by th e At torney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admit ted fo r permanent r esidence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to recei ve an immigrant visa and is admissible to the United Stat es for permanent residence, and (3) an immigrant vis a is i mmediat ely available t o him at the time his application is filed. 8 U.S.C. § 1255(a). Under this statutory provision, the class of admitted aliens and t he class of parole d 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” (i ncluding thos e paroled into the United States) and in removal proceedings—from the class of parol ees eligible for adjustment of status to LPR. Under the regulation, this sub-class of aliens is ineligible to apply fo r status adjustment. S ee 8 C.F.R. § 245.1(c)(8). Mom in challenges the validity of the regulation as contrary to the statutory framework.- 11 - 2. Si ster Circuits’ Jurisprudence We do not consider this question in a vacuum. The parties briefed the First Circuit’s holding in Succar
. Si

nce the First Circuit first spoke, the Third Circuit, the Ninth Circuit, two panels from the Eighth Circuit, and, mo st recently, the Eleventh Circuit have had occasion to address th e question
we consider. The five circuits t o address the issue have reached dissimilar results with even more dissimilar reasoning. And while t hese 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 th e statutory text and the context of the statutory scheme to determ ine that Congress had spoken clearly to aliens’ eligibilit y fo r status adjustment and that th e regulation’s additional limit ation on the eligible class was “inco nsist ent wit h that congressional determ inat io n.” 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 it s plain-language review of the statute, the Succar panel fo und that Congress had “defined certai n categories of aliens who were eligible to apply for adjustment of status, .
. . and refined the definit io n by specifically excluding certai n aliens from eligibilit y. ” I d
. at 24. Because of the express pronouncement s in § 1255 regardi ng eligibilit y fo r status adj ustment, the First Circuit held that “Congress unambiguously reserved to it self the determ inat io n of who is eligib le to appl y fo r adjustment of status relief.” I d
. The regulation’s limitation on parolees’ eligibility conflicts with the statute’s plain language, according to the Succar court. When the First Circuit considered th e con text of the statutory scheme, it drew two conclusions. The S

uccar court fir st determ ined that “t he exclusion of parolees in removal- 12 -

proceedings renders ineligible mo st of the class that Congress rendered eligible by inclu ding parolees.” I

d
. at 26. Second, the court stated that “the congressional choice t o del egate to the At torney General some circumscribed discretion over the ult imat e decision of who is granted adjustment of status is not authorization fo r discretion in oth er areas.” I d
. (footnote om

it ted). These conclusions compelled the court to deem the regulation invalid. The fir st conclusion was based, in part, on th e court’s factual und erstanding that “m ost arri ving alien parolees are placed in removal proceedings.” I d
. at 18. This representation was made to the court and not di sputed by the Attorney General. I d
. at 21. Also , the court noted that an applicant fo r admission who cannot demonstrate admissibilit y “clearly and beyo nd a doubt” must be placed in removal proceedings. Id . at 27 (di scussing 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 eligibilit y 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 At torney General may exercise his discretion by rulemaking rather than case-by-case adjudication pursuant to Lopez v. Davis , 531 U.S. 230 (2001). In L opez , the Supreme Court upheld a regulation of th e Bureau of Pri sons (the “Bureau”) categorically denying early release fo r certai

n pri soners as an appropri ate exercise of the Bureau’s discretion. 531 U.S. at 233. The authorizing statute in question in Lopez eliminat ed a class of pri soners from eligibilit y fo r early release and left the release determ inat io n of oth er pri soners to th e discretion of the Bureau. I d
. at 238–41 (di scussing 18 U.S.C. § 3621(e)(2)(B)). The Court determ ined that, aside from excluding
a class of pri soners from eligibilit y fo r the reduction in sentence, “Congress ha[d] not identified any- 13 -

further circumstance in which the Bureau eit her must grant the reduction, or is fo rbidden 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 wit hin it s authori ty to exclude categor ically classes of pri soners by rule: “The Bureau is not required continually to revisit ‘issues that may be established fairly and efficient ly in a single rulemaking proceeding.’” I d. at 244 (quoti

ng H eckler v. Campbell , 461 U.S. 458, 467 (1983)). The First Circuit distinguished L opez , asserting that, in th e statute at issue in Lopez , Congress had been silent and that was not the case wit h respect to th e INA. S uccar , 394 F.3d at 29. Accordingly, the S uccar court deemed the At torney General’s resort to rulemaking contrary to the plain language of the statute. Id
. Having concluded that the text and statutory structure conf lict ed wi th th e regulation, the Succar court reviewed the INA’s legislat ive hist ory . Congress, the First Circuit determined, intended to eliminat e unnecessary tri ps out of the Unit ed States in order to be eligible to apply fo r admission. Id
. at 33–34 (di scussing S. REP . No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3125). Based on this review of the legislat ive hist ory, the First Circuit concluded that th e regulation actually recreated a problem that Congress int ended to eliminat e when enacting the statute because, under the regulation, parolees subject to removal would have to leave the country to become eligible to adjust status. I d. 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. I d
. at 34, 36. The Ninth Circuit, in B ona 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 invalidat ed 8 C.F.R. § 245.1(c)(8) but did so under Chevron step two.- 14 -

Zheng v. Gonzales , 422 F.3d 98, 120 (3d Cir. 2005). The Third Circuit disagreed wit h the First Circuit’s conclusion that Lopez did not govern the Chevron step one result. I d
. at 116. The Z

heng court, applying Lopez , state d that “[t]he fact that Congress declared some categories of aliens i neligible 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 th e regulation was to survive, it would have to be both “‘reasonable in light of the legislature’s reve aled design’” and “‘based on a permi ssible construction of the statute.’” I d
. (quoti ng 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). Looki ng to the operation of the INA as a whole the Zheng court determ ined “t hat virtually all parolees will be in removal proceedings.” Id . at 117. In addition to considering Succar , the Zheng court f ound that the statutory structure was such that “parolees will, by default, be in removal proceedings.” I d
. Based on this understanding of the INA’s operation, th e Third Circui t determined “that Congress int ended that the mere fact of removal proceedings would not render an alien ineligible to apply fo r 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 Unit ed States ineligible to apply fo r adjustment of status.” I d
. Alt hough 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. Ult imat ely, t he Z heng court stated that “[f]or all practical purposes, . . . 8 C.F.R. § [245.1(c)(8)] renders paroled aliens ineligible to apply fo r adjustment of status.” I d
. Based
on it s practical understanding of the statute’s function and the effect of the regulation, the Z heng- 15 -

court concl

uded that “[t]he conflict between regulation and statute i s clear and unmistakable.” Id
. As such, the regulation, which, accordi ng to th e Third Cir cuit, “essenti ally 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), fo llo wed the Zheng court’s reasoning and held 8 C.F.R. § 245.1(c)(8) invalid. The Eleventh Circuit adhered to L opez and held that the At torney General may exercise his discretion by rulemaking in lieu of adjudication. S cheerer , 2006 WL 947680, at *7. The S cheerer 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 opi

nio ns; each opi

nio n drew a dissent arguing i n favor of i

nvalidating the regulation. See Mouelle v. Gonzales , 416 F.3d 923, 930 (8th Cir. 2005); G each 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 , fo llo wed th e Supreme Court’s directive in Lopez and recognized that the At torney General’s use of rulemaking was “no t invalid as contrary to th e statute.” 416 F.3d at 930. Having sati sfied it self wit h the manner of regulation, the Mouelle court fo llo wed Lopez and inquired whether t he gap-filling regulation was “‘reasonable in light of the legislature’s revealed design.’” Id
. (quoti

ng Lopez , 531 U.S. at 242). At this point, the Eight h Circuit ref erred to the At torney General’s com

ment ary in prom

ulgating the regulation, which indicated that the regulation- 16 -

responded to congressional int ent 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) (i

nt erim rule wit h request fo r com ment s) (“Interim Rule”)). The M ouelle court noted the broad discretion granted the At torney General in th e statute and determ ined that th e fact that an arri ving alien is in a removal proceeding “is a characteri stic that i s a reasonably sound basis for choosing not to grant relief under 8 U.S.C. § 1255[(a)].” I d. To the contention in S uccar (and the
same contention lat er in Zheng , Bona , and Scheerer ) that the regulation renders an entire class of aliens—int ended by Congress to be eligible for status adjustment—ineligible for status adjustment, the Mouelle court responded:

The court i n Succar opi ned that th e relevant characteristic—placeme nt in removal pro ceedings—effectively barred mo st aliens who had been paroled from adjusting status because mo st paroled aliens were in removal proceedi ngs. Thus, the court concluded, the regulation was contrary to 8 U.S.C. § 1255(a) because paroled aliens were amo ng th ose eligible t o adj ust status under the statute. As an evidentiary matter, we cannot conclude that the regulation bars mo st paroled aliens from adjusting status. Unlike the co urt in Succar , we have not been “informed,” of that fact. And in this case the At torney General cit es DHS stati stics suggesting that only about two to th

ree percent of parolees who entered th e Unit ed States in 2003 have been placed in removal proceedings. In fact, the INS did not init iat e removal proceedi ngs agai nst the Mouelles until April 15, 1998, over ten mo nt hs aft er th e Mouelles were paroled int o the Unit ed States. Moreover, even if we assumed that mo st aliens paroled int o the Unit ed States were placed in removal proceedings, 8 U.S.C. § 1255 does not show a congressional intent to vest a few, mo st, or all paroled aliens wit h th e right to adj ust their status. Relief remains discretionary. Id
. at 930 n.9 (i

nt ernal cit ations om

it ted). Because the regulation was, acco rding to the Eighth Circuit, a valid exercise of expressly-granted discretion, the court upheld 8 C.F.R. § 245.1(c)(8).

3. Analysis- 17 -

We agree wit h th e Ei ghth Circuit that 8 C.F.R. § 245.1(c)(8) is a valid exercise of the discretion granted by Congress to the At torney General. For the reasons that follow, we respectfully disagree wit h both the Succa r and Zheng lines of reasoning. In determining the validity of the regulation, we m

ust answer two questions: (1) whether the Attorney General was entitled to implement a rule rather than adjudicate s t atus adjustments on a case-by-case base; and, (2) if so, whether the rule prom

ulgated was arbitrary, capricious, or manifest ly contrary to th e statute. In sum,
we hold that the At torney 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, th e Thir d, Eighth, and Eleventh Circuits all agree, as do we, that the At torney General may exercise his discretion by rulemaking rather than caseby-case adjudication. Congress identified classes of aliens that may have their status adjusted at the At torney General’s discretion, see 8 U.S.C. § 1255(a), and Congress also identified various subclasses of aliens that are ineligible fo r status adjustments, see, e.g., 8 U.S.C. § 1255(c). The First and Nint h Circuits found these tandem congressional mandates sufficient to conclude that “Congress unambiguously reserved to it self the determ inat io n of who is eligible to apply fo r adjustment of status 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 int ent to wit hhold the Attorney General’s authori ty to resol ve matters of general applicabilit y th rough rulemaking. Absent such an exclusion, resort to- 18 -

rulemaking is wit hin the discretion affo rded th e At torney General. S ee Am. Hosp. Ass'n v. N.L.R.B. , 499 U.S. 606, 612 (1991) (noti ng that resort to rulemaking is proper even where the statute requires the agency to make a determ inat io n “i n 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 At torney General, the At torney General canno t opt to e xercise the discretion and exclude other classes by regulation. A ccord 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 com pels this conclusion: We als o rej ect [the] argument . . . that the agency must not make categorical exclusions, but may rely only on case-by-case assessments. “[E]ven if a statutory scheme requires i ndividualized determ inat io ns,” which this scheme does not, “t he decisionmaker has the authori

ty to rely on rulemaking to resol ve certai n issues of general applicabilit y unless Congress clearly expresses an intent to withhold that authori

ty .” The approach pressed by Lopez—case-by-case dec isionmaking in thousands of cases each year—could invite favoritism, disunity, and inconsistency. The [agency] is not required conti nually to re visit “issues that may be established fairly and efficient ly in a single rulemaking proceeding.” 531 U.S. at 243–44 (i

nt ernal cit ations om

it ted). S ee also Mourning v. Family Publ’ns. Serv., Inc. , 411 U.S. 356, 372 (1973) (rej ecti ng a similar argument and commenting that “[t]o accept [the] argument would undermine the flexibilit y sought in vesting broad rulemaking auth ori ty in an administ rati

ve agency”). In any event, we need not guess at the Attorney General’s motivation. The Attorney General’s com

ment ary accompanying the rule as prom ulgated makes clear th at the regulation is a categorical exercise of discretion: “Adjustment of status is granted in the discretion of the Attorney General.
. . . [T]he At torney General has determined that she will not favorably exercise her- 19 -

discretion to adjust the status of arri ving aliens who are . . . placed in removal proceedi ngs.” Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444, 452 (Jan. 3, 1997) (proposed rule) (“Proposed Rule”). S

ee also Interi

m Rule, 62 Fed. Reg. at 10,327 (“In response to th e com ment ers who suggested this policy exceeded the At torney General’s statutory authori ty, it is noted that section 245 of the Act clearly and unambiguously states that adjustment of status is a discretionary decision, subject to such regulatory limit ations as the Attorney General may prescribe.”). The Attorney General’s approach is entirely consiste nt wi th that taken by the agency—and approved of by the Court—i n Lopez . We follow Lopez and conclude that, because 8 U.S.C. § 1255(a) is silent on the
manner in which the At torney General is to exercise his discretion, the At torney General can exercise his discretion th

rough rulemaking in mat ters of general applicabilit y. 531 U.S. at 244. A ccord 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 authori

ty to make specific policy determ inat io ns, courts must give the agency’s decision controlling weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’” A BF Freight Sys., Inc. v. N.L.R.B. , 510 U.S. 317, 324 (1994) (quoti ng Chevron , 46 7 U.S. at 844). Alt hough 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 fo r such limit ing language in th e statute. See 8 U.S.C. § 1255(a) (providing that the status of an alien “may be adjusted [to LPR] by the At torney General, in his discretion and under such regulations as he may prescribe”). The Supreme- 20 -

Court has noted that “express congressional authorizations to engage in the process of rulemaking or adj udication that produces regulations or rulings for which deference is claimed” is indicative of
an entitlement to deferential treatment by reviewing courts. U nited States v. Mead Corp. , 533 U.S. 218, 229 (2001). The statute clearly vest s in t he Attorney General such authority to promulgate regulations. S

ee 8 U.S.C. § 1255(a). Additionally, the Supreme Court has “recognized that judicial deference to the Executive Branch is especially appropri ate in th e immigrat io n context where of ficials ‘exercise especially sensitive polit ical functions that implicat e questions of fo reign relations.’” I .N.S. v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999) (quoti ng I.N.S. v. Abudu , 485 U.S. 94, 110 (1988)).

The courts that deem 8 C.F.R. § 245.1(c)(8) invalid all share a com mo n trai t; th ey equate the entire class of parolees wit h the sub-class of parolees who are subject to removal proceedings. See Succar , 394 F.3d at 21, 26 (basing it s unders t anding on an uncontested peti tioner’s statement); Zheng , 422 F.3d at 117–18 (basing it s belief on Succar and th e statutory structure); Bona , 425 F.3d at 670 (basing it s understanding on Succar and the court’s view of th e “practical effect” of the regulation); Scheerer , 2006 WL 947680, at *7–8 (basing it s belief o n Succar and the statutory structure). Because the regulation makes the latter class ineligible for relief and the statute makes the fo rmer class eligible fo r relief (though subject to the At torney General’s discretion), th ose circuits understand the regulation to be in conflict wit h the statute and overall statutory design. S ee Succar , 394 F.3d at 21, 26 (“[T]he exclusion of parolees in removal proceedings renders ineligible mo st of the class that Congress rendered eligible by including parolees.”); Zheng , 422 F.3d at 119 (“We are th us faced wit h 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 at8 We note that, in Mouelle , the court was provided wit h stati stics indicating that, in 2003, only

two to th ree percent of parolees entering the Unit ed 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 suppo rt the understanding that all parolees are subject to removal proceedings: The Mouelles were paroled for ten mo nt hs before being subject to removal proceedings, see Mouelle , 416 F.3d at 925; Zheng was paroled fo r over six years before he was charged as removable, see Zheng , 422 F.3d at 103–04; Bona was paroled fo r over eight years before being placed in removal proceedings, see Bona , 425 F.3d at 664; Geach was on parole fo r seven years before being placed in exclusion proceedings, see Geach , 2006 WL 508101, at *1; and Scheerer was a parolee fo r eight months before receiving a notice to appear fo r removal proceedings, 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. - 21 - 670 (“By entirely excluding a category of aliens from the abilit y to apply fo r adj ustment, who by statute are eligible to apply fo r such relief, the regulation [i s 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 fo r an adjustment of status, the regulation, 8 C.F.R. § [245.1(c)(8)], excludes the same class from eligibilit y. ”). This estimation
as to the practical effect of the regulation and the statutory context forms the core of th e rationale fo r finding the regulation invalid. Like the Eighth Circuit, we have no evidentiary basis to reach th e 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. , admit ted aliens and parolees, is coterminous with the class identified in 8 C.F.R. § 245.1(c)(8), i.e. , arri

ving aliens (i

ncluding parolees) in removal proceedings. Indeed, the limited facts before us do not bear out thi s relationship. 8 Mom in 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 fo r status adj ustment was denied. Without data, it is impo ssible fo r this court to opi ne on th e likeliho od that th e vast majority of (or, fo r that mat ter, many) arri

ving aliens are placed immediat ely int o removal proceedings. It would be wholly9 Contra S uccar , 394 F.3d at 27 (“Congress purposefully classified paroled individuals as ‘inadmissible,’ and it also determ ined that they should generally be placed in removal proceedings.”); Zheng , 422 F.3d at 117 (stati ng that “any parolee—that is, any alien who has been inspected but not admit ted—will necessarily be in removal proceedings”); Bona , 425 F.3d at 670 (equating parolees generally wit h parolees subject to removal proceedings); Scheerer , 2006 WL 947680, at *7 (“It is clear from the statut ory text, therefore, that Congress int ended fo r virtually all parolees to be in removal proceedings.”). - 22 - 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 th e two classes
are so similar as to find the regulation to be manifest ly contrary to th e statute. The INA and its regulations clearly provide that at least some parolees will not be placed into removal proceedings. And nowhere does the INA mandate that parolees must be placed int o removal proceedings. Because this court is not sati sfied that parolees necessari ly are subject to removal proceedings, we cannot conclude that the regulation is manifest ly contrary to the statute. 9 Respectfully, we disagree with the reasoning of the Succar and Zheng lines o f cases. Absent this assumed-but-not-proved conflict, we have been presented wit h no reason to hold the regulation invalid. In light of the stated reasons for the regulation, s ee Mouelle , 416 F.3d 930 (di scussing Proposed Rule, 62 Fed. Reg. at 452, and Interi m Rule, 62 Fed. Reg. at 10,326–27), the At torney General did not act arbitrarily, capriciously, or manifest ly contrary to the statute in opti ng to decline t o 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 At torney General’s discretion under 8 U.S.C. § 1255(a). IV. CONCLUSION The petition for review is DENIED.