United States Court of Appeals

For the First Circuit

No. 04-1060

SANTA RODRIGUEZ DE RIVERA,

Petitioner,

v.

JOHN ASHCROFT, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Robert M. Warren for petitioner.

Anthony P. Nicastro, with whom Peter D. Keisler, Assistant

Attorney General, Civil Division, Barry J. Pettinato, Senior

Litigation Counsel, and Anthony C. Payne, Attorney, Office of

Immigration Litigation, Civil Division, United States Department of

Justice, were on brief, for respondent. 

January 5, 2005
18 C.F.R. § 1245.1(c)(8) is identical to 8 C.F.R. §

245.1(c)(8), which is the provision cited in the parties' briefs.

§ 245.1(c)(8) applies to the immigration agencies in the Department

of Homeland Security. § 1245.1(c)(8) applies to the Executive

Office for Immigration Review in the Department of Justice, which

includes the Immigration Judge and the Board of Immigration

Appeals. 

-2-

LYNCH, Circuit Judge. This immigration case presents

legal issues overlapping with those resolved by Succar v. Ashcroft,

No. 03-2445, released this same day. The petitioner is the wife of

an American citizen and is also an arriving alien who was paroled

and then placed in removal proceedings. Pursuant to a regulation,

8 C.F.R. § 1245.1(c)(8), saying arriving aliens in removal

proceedings could not apply for adjustment of status, she was

denied an opportunity (in her case, a second opportunity) to apply

for adjustment of status. 

Succar held 8 C.F.R. § 1245.1(c)(8)1 to be invalid as

inconsistent with the relevant statute, 8 U.S.C. § 1255, to the

extent that the regulation barred paroled aliens in removal

proceedings from applying for adjustment of status. Succar held

that the Attorney General's discretion as to whether to grant

adjustment of status did not include the power to redefine

eligibility to apply for adjustment of status for paroled aliens

who were statutorily granted eligibility pursuant to 8 U.S.C. §

1255(a). We now remand this case to the Board of Immigration

Appeals (BIA) for consideration in light of our holding in Succar.
2In March 2003, the relevant functions of the INS were

transferred to the Department of Homeland Security and reorganized

into the Bureau of Immigration and Customs Enforcement. We refer

to the immigration agency throughout as the INS. Mukamusoni v.

Ashcroft, 390 F.3d 110, 113 n.1 (1st Cir. 2004).

3Advance parole is pre-authorization to enter the country. See

8 C.F.R. § 212.5(f). It can be granted, as here, to an alien who

is currently in the United States, but who wants assurance that,

when she leaves the country, she will be able to return. Samirah

v. O'Connell, 335 F.3d 545, 548 (7th Cir. 2003).

At oral argument, Rivera produced an INS processing sheet

written up before she left the country (dated January 2, 1997),

during an interview dealing with her first adjustment of status

application. This sheet had a notation stating: "I-512 -- warned."

I-512 is the advance parole form. 8 C.F.R. § 212.5(f). In

response to a request from this court, the government produced a

-3-

I.

Santa Rodriguez de Rivera, a native and citizen of the

Dominican Republic, entered the United States without inspection in

1990 and lived here illegally. She married a United States citizen

in 1993 and first applied for adjustment of status, with the

Immigration and Naturalization Services's (INS)2 District Director,

on September 26, 1996, after her husband had filed an I-130

Petition for Alien Relative that had been approved by the INS.

Rivera was eligible to apply for adjustment of status under 8

U.S.C. § 1255(i) (the Life Act amendments). 

While the decision on her 1996 application for adjustment

of status was pending, Rivera left the United States to travel to

the Dominican Republic. She claims that she was granted advance

parole by the INS before leaving, but the government denies this;

she has, at any rate, not produced evidence of the advance parole.3
sworn affidavit from the interviewer who wrote the notation. He

stated that the notation merely reflected his standard practice of

warning Rivera that she could not leave the country while her

adjustment of status application was pending without receiving

advance parole and that there was no evidence in the administrative

file that Rivera ever asked for or received advance parole.

-4-

Rivera returned to the United States on January 17, 1998, via New

York City, and was paroled at that time for deferred inspection in

Boston on February 26, 1998. Rivera reported for inspection in

Boston on February 26 and on March 12, 1998, but no inspector was

available on either date. Finally, she was inspected and paroled

on April 10, 1998. Her parole at that time had an indefinite

expiration and was for the purposes of pursuing her initial

adjustment of status application. 

Her first adjustment of status application -- the one

filed prior to her departure and reentry -- was denied on October

23, 2000. The INS District Director cited "lack of prosecution

(abandonment)" as the reason, elaborating that two forms had been

sent to Rivera after her adjustment interview and that she had not

responded to these forms with "extensive, material documentation."

Incomplete responses were sent on the first form, and nothing at

all on the second. Nonetheless, the notice denying her application

concluded that "[Rivera] may renew [her] application for status as

a permanent resident in any deportation proceeding." 

On the same date as the issuance of the denial of her

adjustment of status application, the INS sent Rivera a Notice to
4Rivera points out that if she were forced to leave the country

and apply for a permanent resident visa from abroad, she would be

barred from reentering the United States for ten years because she

had accrued more than one year of unlawful presence in the United

States. 8 U.S.C. § 1182(a)(9)(B)(i). Waiver of this bar is in the

absolute discretion of the Attorney General. 8 U.S.C. §

1182(a)(9)(B)(v).

-5-

Appear ordering her to appear at removal proceedings in front of an

Immigration Judge (IJ) in Boston. The Notice charged her as

subject to removal. It said nothing about her parole status. 

In removal proceedings before the IJ, Rivera moved to

terminate, administratively close, or continue the removal

proceedings so that she could again apply for adjustment of status

before the District Director. She also sought to have the IJ hear

her adjustment application during the course of the removal

proceedings. All of these motions were denied by the IJ in his

oral decision of June 18, 2002. The IJ noted that she "has no

jurisdiction to hear the adjustment case" because Rivera "is an

arriving alien." 8 C.F.R. § 1245.1(c)(8). The IJ also refused to

terminate the case, given that the INS opposed the motion. Rivera

also contested removability, but the IJ found that removability was

proven by clear and convincing evidence and ordered Rivera removed

to the Dominican Republic. The IJ concluded that Rivera would have

to apply for a permanent resident visa from abroad rather than

adjust her status from inside the United States.4 

Rivera filed a timely appeal with the BIA on July 11,

2002. The BIA affirmed all rulings. The BIA held that the IJ
5The BIA also cited In re Castro-Padron, 21 I&N Dec. 379, 380

(BIA 1996), for the proposition that "[t]he [agency] may review and

act on [Rivera's] application for adjustment of status

independently." We are puzzled by this statement, which amounts to

a misunderstanding of the relevant regulations and was misleading

to Rivera. As we explained in Succar, under 8 C.F.R. §

1245.1(c)(8), once an arriving alien had been placed in removal

proceedings, neither the IJ nor the district director of the

immigration agency could act on any application for adjustment of

status; the alien thus had no venue in which to apply for

adjustment in the United States. In re Castro-Padron was a 1996

case; 8 C.F.R. § 1245.1(c)(8) was promulgated in 1997.

-6-

correctly determined that Rivera was an arriving alien and that by

regulation, arriving aliens in removal proceedings are ineligible

to apply for adjustment of status anywhere. The BIA cited 8 C.F.R.

§ 1245.1(c)(8), the exact regulation invalidated by this court in

Succar. The BIA also noted that the "narrow exception" from §

1245.1(c)(8) for some arriving aliens who received advance parole

was inapplicable because Rivera "has not offered any evidence" that

she received advance parole before leaving the United States and

traveling to the Dominican Republic. Finally, the BIA noted that

the IJ correctly refused to terminate or administratively close the

removal proceedings because "once the [agency] has initiated

removal proceedings, neither we nor the [IJ] has the authority to

terminate proceedings unless the [agency] fails to establish that

the alien is removable as charged."5

Rivera timely appealed the BIA's decision to this court.

She does not contest removability, but only appeals the BIA's

determination that the IJ could not hear Rivera's application for
-7-

adjustment of status and that the IJ could not have terminated,

administratively closed, or continued the removal proceedings so

that Rivera could file her application for adjustment of status

with the District Director. 

II.

The IJ and BIA both denied Rivera's motions to hear the

adjustment application within the removal proceeding, or in the

alternative, to terminate, administratively close, or continue the

removal hearing so that adjustment could be pursued in some other

forum, on the sole basis of 8 C.F.R. § 1245.1(c)(8), the regulation

preventing an "arriving alien" in removal proceedings from applying

for adjustment of status. In addition, the government's brief to

this court focused only on the validity of the regulation. 

Since the agency action, under Succar, cannot be

sustained on the stated grounds, the appropriate remedy is to

remand to the BIA for further proceedings consistent with the

holding in Succar. We do not address any other issues. See INS v.

Ventura, 537 U.S. 12, 16-17 (2002) (per curiam); SEC v. Chenery

Corp., 318 U.S. 80, 95 (1943) (remanding case to agency for further

consideration after determining that "the grounds upon which the

agency acted in exercising its powers were not those upon which its

action can be sustained").

We do not, for example, address the issue of whether

Rivera's application for adjustment of status is somehow number-
6Similarly, there has been no holding from the IJ or BIA or

argument from the government that Rivera is ineligible under the

statutory requirements to apply for adjustment of status under both

of the two possible routes, 8 U.S.C. § 1255(a) and 8 U.S.C. §

1255(i).

-8-

barred because she already filed one earlier application, which was

denied. None of the IJ, the BIA, or the government in its brief to

this court have suggested that any such number bar exists. Indeed,

the District Director's notice of denial to Rivera indicated that

the agency is normally willing to accept a second application for

adjustment of status in the course of removal proceedings, absent

the effect of 8 C.F.R. § 1245.1(c)(8).6

Similarly, we do not address Rivera's arguments aimed at

finding a way around 8 C.F.R. § 1245.1(c)(8). She argues that she

is not an "arriving alien" for purposes of that regulation because

of the type of parole she received, and she argues that adjustment

of status under 8 U.S.C. § 1255(i) (as opposed to adjustment under

8 U.S.C. § 1255(a)) is not barred by the regulation.

We vacate the removal order and remand the case to the

BIA for further proceedings consistent with Succar v. Ashcroft, No.

03-2445, released this same day. So ordered.