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

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No. 05-1405

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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.

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Submitted: September 15, 2005 

 Filed: March 3, 2006

________________

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges. 

________________

GRUENDER, Circuit Judge.

1
2

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 States District Judge for the District

of Minnesota.

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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 entered the United States pursuant to advance parole. Throughout

his administrative hearings, Geach was denied the opportunity to apply for suspension

of deportation pursuant to 8 U.S.C. § 1254 (repealed 1996).2

 After he was ordered

excluded and had exhausted his administrative appeals, the district court3

 denied his

petition for habeas corpus relief. On appeal, Geach argues that 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 the 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 resident. During the pendency of his application,

Geach traveled to England on three occasions: in 1985, 1986, and 1991. Before each

trip, he obtained a grant of advance parole from the former Immigration and

Naturalization Service (“INS”) that permitted him to travel outside the United States

with the assurance that he would be allowed 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 order of exclusion has been made . . . may

obtain judicial review of such order by habeas corpus proceedings and not otherwise.”

8 U.S.C. § 1105a (repealed 1996).

-3-

In 1992, the INS denied Geach’s application 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 States 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 proceedings so he could apply for suspension

of deportation. The INS appealed this 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 district 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 give
5

The Government argues that the IIRIRA’s “stop-time” rule precludes Geach

from obtaining his desired ultimate relief, 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 federal 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 Immigrant Reform and Immigration Responsibility Act

(IIRIRA) and, therefore, apply the provisions 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 general rule is the concept of “parole.”

Aliens who are physically present in the United States pursuant 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 General 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 consequence of advance parole, however, is

mandatory placement in exclusion proceedings. “If the application [for adjustment

of status] of an individual granted advance parole is subsequently 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 suspension 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 ultra vires to the suspension of deportation

statute because the Attorney General’s ability to suspend deportation is discretionary.

8 U.S.C. § 1254 (“the Attorney General may, in his discretion, suspend deportation

and adjust the status to that of an alien lawfully admitted for permanent residence”

(emphasis added)). Given this broad discretion Congress granted to the Attorney

General with regard to suspension of deportation, the Attorney General’s decision to

categorically exclude aliens under advance 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 United 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 principle forbidding an

administrator, vested with discretionary power, to determine by appropriate

rulemaking that he will not use it in favor of a particular class on a case-by-case basis
6

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. . . .” 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 categorically denied suspension of deportation

when they otherwise satisfy the statutory prerequisites of § 1254. These arguments

fail, however, because they rest on a false premise. Aliens are not automatically

eligible for suspension of deportation just because they could satisfy the prerequisites

if allowed to apply. Geach overlooks the fact that the inquiry into an alien’s eligibility

for suspension of deportation is subordinate to the Attorney General’s overriding

discretion to determine who is eligible 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 warned Geach that his travel to England could result in

exclusion proceedings, and he was placed in those 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 treatment 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 Government argues 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 alien
7

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 presented in such prior proceeding.” 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 aliens’ unexhausted constitutional claims unless

the claims concern procedural errors correctable 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 administrative proceedings because the BIA has no

jurisdiction to adjudicate constitutional issues). 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 situated to aliens who reenter the United States

without advance parole and that the Government failed to provide a rational basis for

allowing those aliens to seek suspension of deportation but not allowing 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 without advance parole and are allowed to

apply for suspension of deportation are aliens 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 situated to 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 retention 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 legislature’s actual rationale for the distinction; rather, we

will uphold the statute if ‘there are plausible 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 the legality of their

reentries. For example, it would be rational to place paroled aliens in exclusion

proceedings to offset the administrative burdens 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 government resources is a rational basis for

differing procedures for aliens in exclusion 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 in the United States. Geach does not adequately
8

Geach raised more detailed due process arguments in earlier proceedings and

in his reply brief. However, he abandoned 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 violation of due process, an alien must

demonstrate both a fundamental procedural error and that the error resulted in

prejudice.”). However, we agree with the 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 procedure 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 Process 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 (4th 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 this 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 residency. His application

remained pending for eight years. During 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 taxes, 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 his parents, he would

have a good opportunity of remaining here. 

Let me explain. 

When Geach obtained permission from the Attorney General to visit his parents

in England, he received advance parole travel documents that permitted him to return

to this country. However, under the INS’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 denied Geach’s adjustment application and placed him in

exclusion proceedings because, before coming to this country, Geach incurred two

convictions for possessing marijuana as a young man in his twenties. See 8 U.S.C.

§ 1182(a)(2)(A)(i) (excluding aliens with two or more controlled substance

convictions from admission into the United States). Suppose Geach had not traveled

to visit his parents, then he would have been placed in deportation proceedings

because he entered this country under a visa in 1984. See Succar v. Ashcroft, 394 F.3d

8, 12-13, 15-16 (1st Cir. 2005) (explaining that before 1996 immigration reform,

aliens who made an entry into the United States were subject to deportation
9

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 England were “brief, casual

and innocent.” Add. at 67-68. The Board of Immigration Appeals reversed and

ordered that Geach be placed back in exclusion proceedings without the opportunity

of suspension of deportation in accordance with the terms of the advance parole

regulation. Add. at 62-64.

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proceedings while aliens who had not made an entry were subject to exclusion

proceedings, and aliens paroled into the United States were treated as aliens who had

not entered and therefore subject to exclusion proceedings). In deportation

proceedings, Geach would have an opportunity to remain in this country despite his

prior marijuana convictions by applying for 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 deportation 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 support 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 citizen 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 and is invalid as applied to Geach. The
10The 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 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

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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 discretion 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 immigration relief. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987),

discussed the concept of discretion granted the Attorney General in certain

immigration matters. The Court commented:

This vesting of discretion in the Attorney 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 restrict its 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 crafted a narrower definition, it chose to authorize

the Attorney General to determine which, 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 General’s delegated authority under the adjustment of status

statute, 8 U.S.C. § 1255.10 The statute included aliens paroled into this country among
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. 

Succar, 394 F.3d at 24. 

11In 1996, “Congress . . . eliminated deportation and exclusion proceedings and

replaced them with removal proceedings . . . .” Id. at 13.

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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 contrary 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] the regulation, arguing that 8 U.S.C. §

1255(a) expressly states that the decision to grant 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 disagreed 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 application does not by itself give the

Attorney General the discretion to define eligibility for such relief. . . .

[T]he statute is not silent – it defines 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 Congress’s careful balancing of the

country’s security needs against the national interests Congress wished

to advance through adjustment of status proceedings. The regulation

upsets the balance Congress created. 

Checking our construction of the statute against the legislative

history of section 1255, we find the regulation to be inconsistent with the

intent expressed in the statute. In 1960, when Congress included paroled

aliens as aliens who are eligible for 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 this statute, the Attorney General

cannot categorically refuse to exercise discretion favorably for classes

deemed eligible by the statute. 

Id. at 29 n.28. 

Succar is good authority to grant relief to Geach. Rather than follow Succar,

the majority in this case 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 in removal 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 (as we conclude it does not), then it makes

little sense to invalidate 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 relief should be granted to the Attorney

General’s discretion. . . . Administrators vested 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 eligible 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 directly contrary to this Congressional 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 conclusion that the regulation is contrary to

the statute, but on the ground that “the regulation is not based 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 regulations, and that this discretion

may include some power to regulate eligibility to adjust status. But the

Attorney General’s power is not unlimited, and must be exercised

consistently with the intent of the statute. Because the statute allows

paroled aliens to apply for adjustment 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 that in the present case. The

Mouelles overstayed their nonimmigrant visas. 416 F.3d at 924. The Mouelles later

filed an application for asylum and withholding 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 proceedings following their return to this

country. Id. The immigration judge denied the 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 determined they were considered arriving

aliens. Id. at 926-27. The court noted that 8 C.F.R. § 1245.1(c)(8) made ineligible for

adjustment of status “[a]ny arriving alien who is in removal 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 General could by regulation deny relief 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 statute 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 ineligible 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 present in the United States
12Section 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 described in section 1251(a)(4)(D) of this title)

who applies to the Attorney General for suspension of deportation and–

(1) is deportable under any law of the United States except the provisions

specified in paragraph (2) of this subsection; 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;

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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 travel abroad during the seven-year

period would make an alien ineligible for suspension of deportation. Congress

responded, amending the statute to add: “An 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 with respect 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, casual, and innocent’ departure from the U.S.”).

Further, the suspension of deportation statute reveals a carefully drafted legislative

scheme consisting of specific eligibility criteria and exceptions to those criteria.12
and is a person whose deportation would, 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 considered to have failed to maintain

continuous physical presence in the United States under paragraphs (1)

and (2) of subsection (a) if the absence from the United States was brief,

casual, and innocent and did not meaningfully interrupt the continuous

physical presence.

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Congress did not give the Attorney 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 for 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 permissible because it “granted Geach the

benefit of making those trips without abandoning 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 deportation 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 ineligible for relief. Geach traveled using
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advance parole and the regulation placed him in exclusion proceedings on rejection

of his adjustment application. See Slip Op. at 5. Alternatively, if Geach had traveled

without advance parole and presented himself for inspection on his return from

England, he still would have been placed in exclusion proceedings. See Slip Op. at

8. Thus, the regulation assured that the only way Geach could preserve his right to a

suspension of deportation hearing was if he did 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 statute to alleviate the extreme 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 intent of Congress that an alien could take

a brief, casual, and innocent trip abroad and 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 advance 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 requires 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 foreign 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 suspension of deportation statute, 8 U.S.C. § 1254.
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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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