# United Stat es Court of Appeals For the First C ircuit

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. AnthonyP. Nicastro , with whom Peter D. Keisler , Assistant Attorney General, Civil Division, Barry J. P ettina to , Senior Litigation Counsel, and Anthony C. Payne , Attorney, Office of Immigration Litigation, Civil Division, UnitedStates Department of Justice, were on brief, for respondent.

January 5, 20051 8 C.F.R. § 124 5.1(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, Circu i t Judge . This immigration case presents legal issues overlapping with those resolvedby 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 andthen placed in removal proceedings. Pursuant to a regulation, 8 C.F.R. § 1245.1(c)(8), saying arriving ali ens in removal proceedings coul d not apply for adjustment of status, she was deniedan 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 apply ing fo r adjustment of status. Succar held that the Attorney General's discretion as to wheth er to grant adjus tment of status did not include the power to redefi n e eligibilityto apply for adjus tment of status for paroled aliens who were statutorily granted eligibility pursuant to 8 U .S. C. § 1 255(a). We now remand this case to the Board of Immigratio n Appeals (BIA) for consideration in light of our holding in Succar .2 In March 2003, t he relevant functions of the INS were

transferredto 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).

3 Advance 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, Riv era produced an INS processing sheet written up before she left the country (dated January 2, 1997), d uring an interview dealing with her first adjustment of sta tu s application. This sheet had a notation stating: "I-512 -- warned." I-512 is the advanc e parole form. 8 C.F.R. § 212.5(f). In response to a request from this court, the government produced a -3- I. San ta Rodriguez de Rivera, a native and citizen of th e 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. 3sworn affidavit from the interviewer who wrote the notation. He

statedthat the notation merely reflected his standardpractice of warning Rivera that she could not leave the country while her adjustment of statu s 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 deferredinspection 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 respondedto 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 concludedthat "[Rivera] may renew [her] application for status as a permanent resident in any deportation proceeding."

On the same date as the issuance of the deni al of he r adjustment of status application, the INS sent Rivera a Notice to4 Rivera points out that if she were forced to leave the country

and apply for a permanent resident visa from abroad, she would be barredfrom 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 note d that she "has no jurisdiction to he ar 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 foundthat removability was proven byclear and convincing evidence and orderedRivera 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 BIAaffirmed a ll rulings. The BIA held that the IJ5 The BIA also cited In re Castro-Padron , 21 I&N Dec. 379, 380

(BIA1996), for the proposition that "[t]he [agency] may review and act o n [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 R ivera. As we explained in Succar , under 8 C.F.R. § 1245.1(c)(8), once an arriving alie n h ad been placed in removal pr oceedings, neither the IJ nor the district director of t h e immigration agency could act on any application for adjustment of stat us; the alien thus had no venue in which to applyfo r adjustment in the United States. In re Castro-Padr on wa s 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 parol e befo re leaving the United States and traveling to the Dominican Republic. Finally, the BIA noted that the IJ correctlyrefused to terminate or administratively close the

remova l 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, bu t 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 close d, o r continued the removal proceedings so that Ri ver a 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 sustainedon the stated grounds, t he app ropriate remedy is to

rema ndto 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

con sideration after determining that "the grounds upon which t h e agencyacted 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 f or a djustment of status is somehow number-6 Similarly, there has been no holding fr om the IJ or BIA or

argument from the government that R ivera is ineligible under the statutoryrequirements 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- barredbecause 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 suggestedthat 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 BIAfor further proceedings consistent with Succar v. Ashcroft , No. 03-2445, released this same day. So ordered.