1 Pursuant to Fed. R. App. P. 43(c)(2), Michael Chertoff is substituted for Tom Ridge. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 05-1405

________________ Charles Geach, Appellant,

v. Michael Chertoff, 1 Director of the Department of Homeland Security; Mark Cangemi, District Director of the Bureau of Customs and Immigration Enforcement; Alberto Gonzales, United States Attorney General, Department of Justice, Appellees. *
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* Appeal from the United States District Court for the District of Minnesota.

________________ Submitted: September 15, 2005 Filed: March 3, 2006

________________ Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.

________________ GRUENDER, Circuit Judge. 12 We use the statute as it existed in 1994, the year of Geach’s first exclusion proceeding. See discussion infra Section II.B.

3 The Honorable Joan N. Ericksen, United St ates District Judge for the District of Minnesota.

-2- Charles Geach (“Geach”), a citizen of the United Kingdom, was charged as inadmissible due to two foreign convictions . He was placed in exclusion proceedings because he last had entere d the United States pursuant to advance parole. Throughout his administrative hearings, Geach was deni ed the opportunity to apply for suspension of deportation pursuant to 8 U.S.C. § 1254 (repealed 1996). 2After he was ordered excluded and had exhausted his administ rative appeals, the district court 3 denied his petition for habeas corpus relief. On appeal, Geach argues th at the district court erred in this denial because the advance parole regulation that precludes him from applying for suspension of deportation is ultra vires to § 1254 and violates his right to due process and equal protection. For th e reasons discussed below, we affirm.

I. BACKGROUND

Geach came to the United States for the first time in 1984 on a B-2 visitor visa. He married a United States citizen eight days after his arrival and filed an application to adjust his status to permanent reside nt. During the pendency of his application, Geach traveled to England on three o ccasions: in 1985, 1986, and 1991. Before each trip, he obtained a grant of advance parole from the former Immigration and Naturalization Service (“INS”) that permitte d him to travel outside the United States with the assurance that he would be allo wed to reenter and not be deemed to have abandoned his application for adjustment of status. The advance parole documents issued to Geach for his second and third trips included the following warning: “if your application for adjustment of status is denied, you will be subject to exclusion proceedings.”4 Geach properly sought habeas corpus instead of directly appealing his exclusion: “any alien against whom a final or der of exclusion has been made . . . may obtain judicial review of such order by hab eas corpus proceedings and not otherwise.” 8 U.S.C. § 1105a (repealed 1996).

-3- In 1992, the INS denied Geach’s appli cation for permanent residency because he had two foreign convictions for possession of marijuana prior to his arrival in 1984. See 8 U.S.C. § 1182(a)(2)(A)(i). The INS placed Geach in exclusion proceedings because he last reentered the United St ates under a 1991 grant of advance parole associated with his third trip to England.

In 1994, the Immigration Judge (“IJ”) at Geach’s first exclusion hearing granted Geach’s request to terminate exclusion pro ceedings so he could apply for suspension of deportation. The INS appealed th is decision, however, and the Board of Immigration Appeals (“BIA”) reinstated Geach’s placement in exclusion proceedings because of his advance parole status. In 1999, the matter was remanded to the IJ, who excluded Geach and denied his request to seek suspension of deportation. The BIA affirmed these rulings.

In 2003, Geach petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 4 He argued that the regulation preventing him from seeking suspension of deportation was ultra vires to the suspension of deportation statute and that his placement in exclusion proceedings violated his constitutional right to due process and equal protection. The di strict court denied Geach’s petition.

II. DISCUSSION

A. Standard of Review

This Court reviews de novo a question of law in a denial of a habeas petition, Grove v. Fed. Bureau of Prisons , 245 F.3d 743, 746 (8th Cir. 2001), but must give5 The Government argues that the IIR IRA’s “stop-time” rule precludes Geach from obtaining his desired ultimate re lief, suspension of deportation. See 8 U.S.C. § 1229b(d)(1); Afolayan v. INS , 219 F.3d 784, 787-89 (8th Cir. 2000). Because we affirm the district court on other grounds, we do not address the question of whether the stop-time rule precludes such relief.

-4- substantial deference to the INS’s interpretation of federa l statutes and regulations, see INS v. Aguirre-Aguirre , 526 U.S. 415, 424 (1999).

B. Applicable Law

Because proceedings in this case began prior to April 1, 1997, we apply the transitional rules of the Illegal Immigran t Reform and Immigration Responsibility Act (IIRIRA) and, therefore, apply the provi sions of the former Immigration and Naturalization Act (INA) to the merits of this case. 5 See, e.g. , Sol v. INS , 274 F.3d 648, 650 (2d Cir. 2001); see generally 8 U.S.C. § 1101.

C. Ultra Vires

Geach argues that the advance parole regulation, 8 C.F. R. § 245.2(a)(4)(ii) (1991) (amended 1996), is ultra vires to the statute that establishes suspension of deportation, 8 U.S.C. § 1254, because the advance parole regulation denies suspension of deportation to aliens admitted on advance parole who otherwise meet the statutory requirements of § 1254. We disagree.

Under the INA, aliens who arrive at the United States border are subject to exclusion proceedings while aliens who are physically present in the United States are subject to deportation proceedings. See 8 U.S.C. § 1251(a) (1991) (current version at 8 U.S.C. § 1226). One exception to this ge neral rule is the concept of “parole.” Aliens who are physically pres ent in the United States pur suant to a grant of parole are not considered “admitted” for purposes of deportation proceeding eligibility. 8-5- U.S.C. § 1182(d)(5)(A). The Attorney Gene ral created “advance parole” to allow aliens who are present in the United States and have applied for an adjustment of status to travel outside the United States without abandoning their applications. 8 C.F.R. § 245.2(a)(4)(ii). A potential cons equence of advance parole, however, is mandatory placement in exclusion proceedings . “If the application [for adjustment of status] of an individual gr anted advance parole is subse quently denied, the applicant will be subject to the exclusion provisions of . . . the Act. No alien granted advance parole and inspected upon return shall be entitled to a deportation hearing.” 8 C.F.R. § 245.2(a)(4)(ii). Thus, a consequence of placement in exclusion proceedings is the inability to apply for susp ension of deportation. Leng May Ma v. Barber , 357 U.S. 185, 187 (1958); see also Sherifi v. INS , 260 F.3d 737, 740 (7th Cir. 2001) (recognizing the “longstanding principle that persons in exclusion proceedings prior to April 1, 1997 are ineligible to apply for suspension of deportation”).

The advance parole regulation is not ultr a vires to the suspension of deportation statute because the Attorney General’s ability to suspend deportati on is discretionary. 8 U.S.C. § 1254 (“the Attorney General may, in his discretion , suspend deportation and adjust the status to that of an alie n lawfully admitted for permanent residence” (emphasis added)). Given this broad discretion C ongress granted to the Attorney General with regard to susp ension of deportation, the A ttorney General’s decision to categorically exclude aliens under advan ce parole from suspension of deportation relief is not outside the scope of § 1254. See Leng May Ma , 357 U.S. at 186 (holding that aliens who are paroled into the Un ited States are not entitled to deportation proceedings, only exclusion proceedings); Barney v. Rogers , 83 F.3d 318, 321 (9th Cir. 1996) (holding that an alien with a pending adjustment application was placed properly in exclusion proceedings following a grant of advance parole). “We are unable to understand why there should be any general prin ciple forbidding an administrator, vested with discreti onary power, to determine by appropriate rulemaking that he will not use it in favor of a particular class on a case-by-case basis6

-6- . . . .” Mouelle v. Gonzalez , 416 F.3d 923, 929 (8th Cir. 2005) (quoting Fook Hong Mak v. INS , 435 F.2d 728, 730 (2d Cir. 1970)).

Geach raises a number of ultra vires arguments on appeal to establish that Congress did not intend for aliens to be cat egorically denied suspension of deportation when they otherwise satisfy the statutory prerequisites of § 1254. These arguments fail, however, because they rest on a fals e premise. Aliens are not automatically eligible for suspension of deportation just b ecause they could satisfy the prerequisites if allowed to apply. Geach overlooks the factthat the inquiry into an alien’s eligibility for suspension of deportation is subordinate to the Attorney General’s overriding discretion to determine who is e ligible for such suspension. See Patel v. McElroy , 143 F.3d 56, 58 (2d Cir. 1998) (holding that an alien in exclusion proceedings is not entitled to apply for suspension of deportation).-7- onsistent with the advance parole regulation, the advance parole document warn ed Geach that his travel to England could result in exclusion proceedings, and he was placed inthose exclusion proceedings when his application for adjustment was denied. Geach’s resultant inability to apply for suspension of deportation was not ultra vires to the Attorney General’s broad statutory discretion with respect to suspension of deportation.

D. Equal Protection

Geach argues that his inability to seek suspension of deportation violates his right to equal protection. See Plyler v. Doe , 457 U.S. 202, 210 (1982) (holding that aliens are protected by the Fifth Amendment’s equal protection guarantee). To establish an equal protection violation, Geach must identify a class of similarly situated persons who are treated dissimilarly. See Anderson v. Cass County, Mo. , 367 F.3d 741, 747 (8th Cir. 2004). Disparate treatme nt of similarly situated aliens will be upheld, however, if the Government has a rational basis for its classifications. See, e.g. , Vasquez-Velezmoro v. INS , 281 F.3d 693, 697 (8th Cir. 2002).

As a threshold matter, the Governmentargues that we do not have subjectmatter jurisdiction over this constitutional issue because Geach failed to exhaust administrative remedies on this issue. This is an issue of first impression for this Court. We are prohibited from exercising subject-matter jurisdiction when an alien7 In earlier proceedings, Geach argued that he was similarly situated to aliens who apply for status adjustments and do not depart the United States during the pendency of their application. Geach abandoned this argument on appeal. His fleeting reference to “aliens who failed to depart” in the last sentence of the argument section in his opening brief is insufficient to constitute an appellate “argument.” See Fed. R. App. P. 28(a)(9)(A ) (requiring appellants’ briefs to contain arguments “with citations to the authorities and parts of the record on which the appellant relies”); United States v. Zavala , 427 F.3d 562, 565 (8th Cir. 2005) (holding an argument abandoned despite a brief mention of the issue in appellant’s brief).

-8- fails to exhaust administrative remedies “unless the petition presents grounds which the court finds could not have been presen ted in such prior pr oceeding.” 8 U.S.C. § 1105a(c). We agree with the circuits that have considered this issue and hold that we have subject-matter jurisdiction over alie ns’ unexhausted constitutional claims unless the claims concern procedural errors co rrectable by the administrative tribunal. See, e.g. , Castaneda-Suarez v. INS , 993 F.2d 142, 144 (7th Cir. 1993); Ravindran v. INS , 976 F.2d 754, 762-63 (1st Cir. 1992); Bagues-Valles v. INS , 779 F.2d 483, 484 (9th Cir. 1985) (holding that aliens are not precluded from raising due process claims on appeal that were not raised during admini strative proceedings because the BIA has no jurisdiction to adjudicate constitutional issu es). Geach’s equal protection claim does not concern a procedural error. See Ravindran , 976 F.2d at 762-63 (suggesting that “challenging the constitutionality of . . . statutes [or] regulations” is not a procedural error). Therefore, we consider the merits.

Geach argues that he is similarly situatedto aliens who reenter the United States without advance parole and th at the Government failed to provide a rational basis for allowing those aliens to seek suspension of deportation but not a llowing him to apply. 7 Aliens who attempt to legally reenter the United States without advance parole are treated as applicants for admission, 8 U.S.C. § 1225(a), thereby subjecting them to exclusion proceedings and rendering them ineligible for suspension of deportation. Therefore, the only aliens who reenter w ithout advance parole and are allowed to apply for suspension of deportation are alie ns who illegally reenter the United States.-9- Geach is not similarly situated to these illegal aliens because they are subject to criminal charges and other adverse consequences. See, e.g. , 8 U.S.C. § 1326 (establishing fines and imprisonment for illegal reentry); 8 C.F.R. 245.2(a)(4)(ii) (deeming aliens who reenter illegally to have abandoned their applications for adjustment of status); cf. Dimenski v. INS , 275 F.3d 574, 578 (7th Cir. 2001) (listing benefits of advance parole).

Even if Geach was similarly situatedto aliens who reenter illegally, any difference in treatment of these aliens is justified by the government’s rational basis of “efficient administration of the immigration laws at the border.” Landon v. Plasencia , 459 U.S. 21, 34 (1982). “The authority of Congress and the executive branch to regulate the admission and retenti on of aliens is virtually unrestricted.” Francis v. INS , 532 F.2d 269, 273 (2d Cir. 1976). “Rational basis review does not require us to identify the le gislature’s actual rationale for the distinction; rather, we will uphold the statute if ‘there are plau sible reasons for Congress’ action.’” Hamama v. INS , 78 F.3d 233, 237 (6th Cir. 1996) (quoting United States R.R. Retirement Bd. v. Fritz , 449 U.S. 166, 179 (1980)). There are plausible reasons for establishing different administrative procedures for aliens depending on th e legality of their reentries. For example, it would be rati onal to place paroled a liens in exclusion proceedings to offset the administrative bur dens created by their departures during the pendency of their adjustment applications. Cf. Skelly v. INS , 168 F.3d 88, 91-92 (2d Cir. 1999) (holding that conservation of gove rnment resources is a rational basis for differing procedures for aliens in exclus ion proceedings and aliens in deportation proceedings).

E. Due Process

Geach alleges generally that his inability to apply for suspension of deportation violates due process because his long-time residency in the United States creates a liberty interest in continuing to reside inthe United States. Geach does not adequately8 Geach raised more detailed due proce ss arguments in earlier proceedings and in his reply brief. However, he aba ndoned such arguments on appeal by failing to raise them in his opening brief. See Fed. R. App. P. 28(a)(9); supra note 6.

-10- develop a due process argument in his brief. 8 See Lopez v. Heinauer , 332 F.3d 507, 512 (8th Cir. 2003) (“To demonstrate a vi olation of due pro cess, an alien must demonstrate both a fundamental procedural error and that the error resulted in prejudice.”). However, we agree with th e district court that Geach’s placement in exclusion proceedings satisfies due process. See Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 212 (1953); United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 544 (1950) (“Whatever the proce dure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”); Borrero v. Aljets , 325 F.3d 1003, 1007 (8th Cir. 2003) (holding that regulations governing the parole of aliens do not violate the Fifth Amendment’s Due Proce ss Clause). Geach is entitled to adequate notice and a fair hearing. Woodby v. INS , 385 U.S. 276, 286 (1966). He received both. See Nwandu v. Crocetti , 8 Fed. Appx. 162, 165-66 (4 th Cir. 2001) (unpublished per curiam) (holding that advance-parole form provides adequate notice of possible placement in exclusion proceedings). His placement in an exclusion hearing rather than a deportation hearing does not violate due process.

III. CONCLUSION

For the reasons set forth above, we affirm.

BRIGHT, Circuit Judge, dissenting.

It has been said that there are ten million illegal aliens residing in this country as of 2004. GAO, Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts , at *1 (Aug. 2005), available at www.gao.gov/new.items/d05813.pdf. That is a sad state of affairs and something needs to be done to resolve th is problem. However, Charles Geach is not part of the-11- problem. Geach entered this country in 1984 on a visitor visa, married an American, and filed an application to adjust his status to permanent residenc y. His application remained pending for eight years. Duri ng that time, Geach had three American children with his American wife, worked to support his family, paid taxes, and followed the laws of this country. Today, Geach has lived in this country for over twenty-one years, has a fourth American child, and owns a home with his wife. He continues to work, pay ta xes, and obey the law. Geach, however, has lost the opportunity to remain in this country for a questionable reason. Geach made brief visits to see his parents in England in 1985, 1986, and 1991, with each of the three visits lasting less than thirty days. Because of those visits coupled with a prior, very minor, criminal record in his youth, Geach finds himself banned from remaining with his wife and children in this country. Yet had he not visited hi s parents, he would have a good opportunity of remaining here.

Let me explain.

When Geach obtained permission from the A ttorney General to visit his parents in England, he received advance parole tr avel documents that permitted him to return to this country. However, under the IN S’s advance parole regulation, 8 C.F.R. § 245.2(a)(4)(ii), an alien who travels under advance parole is placed in exclusion proceedings when the INS denies the alien’s adjustment application. See Slip Op. at 5-6. In 1992, the INS deni ed Geach’s adjustment application and placed him in exclusion proceedings because, before co ming to this country, Geach incurred two convictions for possessing marijuan a as a young man in his twenties. See 8 U.S.C. § 1182(a)(2)(A)(i) (excluding aliens withtwo or more controlled substance convictions from admission into the United States). Suppose Geach had not traveled to visit his parents, then he would ha ve been placed in deportation proceedings because he entered this c ountry under a visa in 1984. See Succar v. Ashcroft , 394 F.3d 8, 12-13, 15-16 (1st Cir. 2005) (explaining that before 1996 i mmigration reform, aliens who made an entry into the Un ited States were subject to deportation9 In fact, the immigration judge initially terminated exclusion proceedings “to allow Mr. Geach the opportunity to make an application for suspension of deportation,” reasoning that his trips to see his parents in Engla nd were “brief, casual and innocent.” Add. at 67-68. The Boar d of Immigration Appeals reversed and ordered that Geach be placedback in exclusion proceedings without the opportunity of suspension of deportation in accordance with the terms of the advance parole regulation. Add. at 62-64.

-12- proceedings while aliens who had not madean entry were subject to exclusion proceedings, and aliens paroled into the Unite d States were treated as aliens who had not entered and therefore subject to ex clusion proceedings). In deportation proceedings, Geach would have an opportunity to remain in this country despite his prior marijuana convictions by applying fo r suspension of deportation under 8 U.S.C. § 1254. 9

Congress passed the suspension of deportation statute to afford some aliens relief based on the hardship that deportati on would cause to their families in the United States, but made this relief available only in deportation proceedings. To qualify for this relief, Geach would need to show his deportation would cause extreme hardship to his American wife and children. He would also need to show good moral character in this country for at least seven years. See infra n.4 (setting forth the eligibility criteria for suspension of deportation applicable to Geach, § 1254(a)(1), (b)(2)). Favorable factors that would s upport the Attorney General’s grant of an indefinite stay include: Geach’s age (fifty-two), his long duration in the United States (twenty-one years), his strong and continuing marriage to his United States citizen wife (Elizabeth), his four United States c itizen children (Christopher, James, Lucy, and Emma), his steady employment to support his family, and his following the laws of this country for over twenty-one years.

As I explain below, the regulation placing Geach in exclusion proceedings conflicts with the intent of Congress a nd is invalid as applied to Geach. The10 The court quoted the applicable text of Section 1255(a):

The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under suchregulations as he may prescribe, to that of an alien lawfully admitted for perman ent residence if (1) the alien makes an application for such adjustment, (2 ) the alien is eligible to receive an

-13- suspension of deportation statute gives the Attorney General discretion in deciding which, if any, aliens satisfying the statutory eligibility criteria should nonetheless be denied suspension of deportation. See infra n.4 (setting forth the text of § 1254(a)). However, the Attorney General’s discreti on under this statute is not without limits. The statutory structure of setting forth eligibility criteria and giving the Attorney General discretion to grant or deny relief to qualifying aliens is common to many forms of immi gration relief. INS v. Cardoza-Fonseca , 480 U.S. 421 (1987), discussed the concept of discretion gr anted the Attorney General in certain immigration matters. The Court commented:

This vesting of discretion in the Atto rney General is quite typical in the immigration area, see, e.g., INS v. Jong Ha Wang , 450 U.S. 139, 101 S. Ct. 1027, 67 L.Ed.2d 123 (1981). If anything is anomalous, it is that the Government now asks us to restrictits discretion to a narrow class of aliens. Congress has assigned to the Attorney General and his delegates the task of making these hard individualized decisions; although Congress could have craf ted a narrower definition, it chose to authorize the Attorney General to determine whic h, if any, eligible refugees should be denied asylum.

Id. at 444-45.

In Succar v. Ashcroft , 394 F.3d 8 (1st Cir. 2005), the First Circuit considered the scope of the Attorney Ge neral’s delegated authority unde r the adjustment of status statute, 8 U.S.C. § 1255. 10The statute included aliens paroled into this country amongimmigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately av ailable to him at the time his application is filed.

Succar , 394 F.3d at 24.

11 In 1996, “Congress . . . eliminated deportation and exclusion proceedings and replaced them with removal proceedings . . . .” Id. at 13.

-14- the class of aliens eligible for adjustment of status. Id. at 14. However, the INS later promulgated a regulation, 8 C.F. R. § 245.1(c)(8), that made “ [a]ny arriving alien who is in removal proceedings ” ineligible for adjustment of status. 11 Id. at 17. The appellant argued that the regulation was c ontrary to Section 1255(a) because it would have the effect of denying adjustment of status to most paroled aliens. Id. at 18, 21. The court’s opinion further explained that “Parolees, although they are physically present in the United States, are treated as if they were at the border seeking admission. . . . [Thus, as] arriving aliens, parolees are subject to removal proceedings[] ‘if the examining officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted . . . .’ 8 U.S.C. § 1225(b)(2)(A).” Id. at 16.

“The Attorney General defend[ed] th e regulation, arguing that 8 U.S.C. § 1255(a) expressly states that the decision to gr ant adjustment of status is subject to the Attorney General’s discretion and that the regulation is no more than a valid exercise of that discretion.” Id. at 21. The First Circuit disagr eed and held “that the regulation is contrary to the language and intent of the statute, 8 U.S.C. § 1255(a).” Id. at 9. Significantly, the court reasoned:

The mere fact that a statute gives the Attorney General discretion as to whether to grant relief after app lication does not by itself give the Attorney General the disc retion to define eligibility for such relief. . . . [T]he statute is not silent – it define s persons who have parole status as-15- eligible for adjustment of status and does not carve out an exception for parolees who are in removal proceedings.

. . . . The statutory scheme reflects Congr ess’s careful balancing of the country’s security needs against th e national interests Congress wished to advance through adjustment of st atus proceedings. The regulation upsets the balance Congress created. Checking our construction of the statute against the legislative history of section 1255, we find the regul ation to be inconsistent with the intent expressed in the statute. In 1960, when Congress included paroled aliens as aliens who are eligible fo r adjustment of status relief through section 1255, it did so to solve certain problems . . . . The effect of the regulation is to re-institute the problems Congress wished to solve. Further, until the 1997 promulgation of the regulation, the Attorney General had consistently interpreted section 1255 in a manner consistent with the statute and the legislative history and inconsistent with the 1997 regulation.

Id. at 10.

[B]ecause eligibility is explicit in th is statute, the Attorney General cannot categorically refuse to exerci se discretion favorably for classes deemed eligible by the statute.

Id. at 29 n.28.

Succar is good authority to grant relie f to Geach. Rather than follow Succar , the majority in this cas e follows the reasoning of Mouelle v. Gonzales , 416 F.3d 923, 927-30 (8th Cir. 2005), which expressly disagreed with Succar . Confronted with a similar question as the First Circuit, a majority in Mouelle concluded that the Attorney General’s discretion included the authority to make classes of aliens ineligible even if they are eligible under the statutory criteria. See id. at 929. (“If the Attorney-16- General decided that arriving aliens inremoval proceedings will not be given adjustment-of-status relief (as she clearly did in promulgating this rule), and if that decision does not contravene the statute (a s we conclude it does not), then it makes little sense to i nvalidate this regulation simply because it speaks in terms of eligibility.”). “While Congress surely did speak to eligibility in the statute, it left the question whether adjustment-of-status re lief should be granted to the Attorney General’s discretion. . . . Administrators ve sted with such discretion may exercise that discretion by rule or on a case-by-case basis.” Id. at 928. Judge Bye dissented in Mouelle “for the reasons articulated in Succar . . . .” Id. at 931.

Since the Mouelle decision, two other circuits have considered a similar issue. In Bona v. Gonzales , 425 F.3d 663, 668 (9th Cir. 2005), the Ninth Circuit “agree[d] with the analysis and holding of Succar [, stating] that because the ‘regulation redefines certain aliens as ineligible to apply for adjustment of status . . . whom a statute, 8 U.S.C. § 1255(a), defines as eligib le to apply[,]’ the regulation is invalid.” (quoting Succar , 394 F.3d at 9). “[W]e agree with the First Circuit that Congress has spoken to the precise issue of who is eligible to apply for adjustment of status and that 8 C.F.R. § 245.1(c)(8) is dir ectly contrary to this C ongressional determination.” Id. at 670-71. “[W]e find the reasoning of Succar more persuasive and therefore reject the approach taken by the Mouelle court.” Id. at 668 n.6.

The Third Circuit also reached the conclu sion that the regulation is contrary to the statute, but on the ground that “the regulation is not ba sed on a permissible statutory reading.” Zheng v. Gonzales , 422 F.3d 98, 103, 119-20 (3d Cir. 2005).

We concur with the government that the statute grants the Attorney General broad discretion to issue re gulations, and thatthis discretion may include some power to regulate e ligibility to adjust status. But the Attorney General’s power is not unlimited, and must be exercised consistently with the intent of th e statute. Because the statute allows paroled aliens to apply for adjustme nt of status, whereas the regulation-17- forecloses this statutory eligibility, the regulation is not based on a permissible statutory reading.

Id.

The background in Mouelle is quite different than thatin the present case. The Mouelles overstayed their nonimmigrant visas. 416 F.3d at 924. The Mouelles later filed an application for asylum and withholdi ng of removal, then left the United States on advance parole and did not have proper documents to reenter the United States. Id. at 924-25. The INS commenced removal pr oceedings following their return to this country. Id. The immigration judge denied th e Mouelles’ claims for asylum and withholding of removal, and the BIA affirmed. Id. The Mouelles then sought to reopen their removal proceedings and remand to the immigration judge so that they might apply for adjustment of status, which the BIA denied. Id. at 926. On appeal to this court, the Mouelles, among other things, argued that the BIA improperly denied their motion to reopen because the BIA dete rmined they were considered arriving aliens. Id. at 926-27. The court noted that 8 C. F.R. § 1245.1(c)(8) ma de ineligible for adjustment of status “[a]ny arriving alien who is in re moval proceedings pursuant to . . . section 240 of the Act [8 U.S.C. § 1229a].” Id. at 927. The court asserted that, because the statute granted full discretion to the Attorney General to grant or deny relief, the Attorney Genera l could by regulation deny relie f by rule, as well as case-bycase adjustment. Id. at 928-30. However, Mouelle is different on its facts and does not interpret the same statut e and regulation as in the present case. Thus, if its reasoning is subject to question, its rational need not bind this panel.

The advance parole regulation, 8 C.F.R. § 245.2(a)(4)(ii), is contrary to the suspension of deportation statute, 8 U.S .C. § 1254. Section 1254 shows Congress’s intent that aliens would not become ine ligible for suspension of deportation based on “brief, casual, and innocent” trips abroad. To be eligible under the suspension of deportation statute, an alien must “ha[ve] been physically presen t in the United States12 Section 1254 read: (a) Adjustment of status for permanent residence; contents As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien (other than an alien describe d in section 1251(a)(4)(D) of this title) who applies to the Attorney Genera l for suspension of deportation and– (1) is deportable under any law of th e United States except the provisions specified in paragraph (2) of this s ubsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character;

-18- for a continuous period of not less than seven years immediately preceding the date of such application . . . .” § 1254(a). The Supreme Court decided in INS v. Phinpathya , 464 U.S. 183, 196 (1984), that any trav el abroad during the seven-year period would make an alien ineligible fo r suspension of deportation. Congress responded, amending the statute to add: “A n alien shall not be considered to have failed to maintain continuous physical presence in the United States . . . if the absence from the United States was brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence.” § 1254(b)(2). The legislative history to the amendment also evinces Congress’s intent. See H.R. Rep. No. 99-682(I), at 78, reprinted in 1986 U.S.C.C.A.N. 5649, 5682 (“The Committee Amendment relaxes the recent Supreme Court interpretation withrespect to the seven year ‘continuous physical’ residence requirement to qualify for suspension of deportation . . . . That decision [ INS v. Phinpathya , 464 U.S. 183 (1984)] held that any departure from the U.S. during the seven year period was interruptive of the residence requirement, thus making the alien ineligible for relief. This Amendment relaxes the residence requirement in the case of a ‘brief, casua l, and innocent’ departure from the U.S.”). Further, the suspension of deportation statut e reveals a carefully drafted legislative scheme consisting of specific eligibility criteria and exceptions to those criteria. 12and is a person whose deportation woul d, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence; (2) is deportable under paragraph (2), (3), or (4) of section 1251(a) of this title; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves . . . .

. . . . (b) . . . (2) An alien shall not be c onsidered to have failed to maintain continuous physical presence in the United States under paragraphs (1) and (2) of subsection (a) if the abse nce from the United States was brief, casual, and innocent and did not m eaningfully interrupt the continuous physical presence.

-19- Congress did not give the Atto rney General the discretion to undo this scheme and the criteria determining eligibility.

The majority concedes the regulation would directly contravene § 1254 if it “den[ied] Geach an opportunity to apply fo r suspension of deportation merely because of his brief trips abroad . . . .” Slip Op. at 6. In the majority’s view, however, the advance parole regulation is permi ssible because it “granted Geach the

benefit of making those trips without ab andoning his application for adjustment of status to permanent resident . . . .” Id.

I disagree with this analysis. In my view, the advance parole regulation made Geach ineligible for suspension of deportati on based on his brief, casual, and innocent trips to England. Congress, in amending the suspension statute, intended that travel of this character would not make an alien in eligible for relief. Geach traveled using-20- advance parole and the regulation placed hi m in exclusion proceedings on rejection of his adjustment application. See Slip Op. at 5. Alterna tively, if Geach had traveled without advance parole and presented hi mself for inspection on his return from England, he still would have been pl aced in exclusion proceedings. See Slip Op. at 8. Thus, the regulation assured that the onl y way Geach could preserve his right to a suspension of deportation hearing was if hedid not visit his parents during the eight years his adjustment application remained pending before the INS.

No individual discretion exists as to those aliens who have traveled abroad under advance parole, such as Geach. The advance parole regulation frustrates the purpose of the suspension of deportation statut e to alleviate the ex treme hardships that can be created by deporting an alien whose family and whole life is here in the United States. The regulation also frustrates the in tent of Congress that an alien could take a brief, casual, and innocent trip abroadand remain eligible for suspension of deportation.

I note that the regulation could have been written to avoid this result. Under a prior version of the advance parole regulation, the Fourth Circuit concluded that an alien returning under advan ce parole should have been placed in deportation proceedings after his return to this country and entitled to a suspension of deportation hearing. Joshi v. INS , 720 F.2d 799, 803-04 (4th Cir. 1983) . The Fourth Circuit also explained that the parole statute, 8 U.S.C . § 1182(d)(5), which re quires that an alien admitted under parole leaves his legal status at the border and upon which the INS conceived advanced parole, was intended “to allow the applicant entry ‘for emergent reasons or for reasons deemed strictly in the public interest[]’ . . . [and] does not purport to deal with authorization for fore ign travel or with readmittance to the country to resume prosecution of a pending motion.” Id. at 803-04.

I would hold the advance parole regulation, 8 C.F.R. § 245.2(a)(4)(ii), invalid in this case as inconsistent with the su spension of deportation statute, 8 U.S.C. § 1254.-21- See Succar v. Ashcroft , 394 F.3d 8, 9-10, 36 (1st Cir. 2005); Bona v. Gonzales , 425 F.3d 663, 668 (9th Cir. 2005); Zheng v. Gonzales , 422 F.3d 98, 103, 119-20 (3d Cir. 2005). Accordingly, I dissent.

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