Scheerer v. U.S. Attorney General

Citations: 513 F.3d 1244; 2008 U.S. App. LEXIS 812Docket: 06-14192, 06-15971

Court: Court of Appeals for the Eleventh Circuit; January 15, 2008; Federal Appellate Court

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Germar Scheerer, a German citizen, petitions for review of the Board of Immigration Appeals (BIA) decisions that denied his motions to reopen removal proceedings and to reconsider. Removed from the U.S. after a conviction for inciting racial hatred, Scheerer entered the U.S. as a conditional parolee in 2000 and subsequently applied for asylum, which was denied. He later sought to adjust his status based on marriage to a U.S. citizen, but the BIA ruled that he was ineligible to apply for adjustment of status during removal proceedings under 8 C.F.R. 1245.1(c)(8). Scheerer argues that this regulation, similar to a previously invalidated regulation, effectively bars most paroled aliens from seeking adjustment of status, contradicting the intent of 8 U.S.C. 1255(a). The court denies Scheerer's petitions, affirming the BIA's discretion in applying the regulation, which it has previously determined conflicts with statutory provisions allowing most paroled aliens to adjust their status.

The denial of Scheerer’s motion to reopen was reversed, and the case was remanded to the Board of Immigration Appeals (BIA). Following this decision, the Department of Homeland Security (DHS) agreed to facilitate Scheerer's reentry into the U.S. to pursue his adjustment application. In response to this and similar circuit court rulings, the Attorney General issued an interim regulation that repealed 8 C.F.R. 1245.1(c)(8) and established a new 8 C.F.R. 1245.2(a)(1), which allows arriving aliens in removal proceedings to apply for adjustment of status but generally removes jurisdiction from immigration judges (IJs) to adjudicate such applications, mandating that they be filed with USCIS instead.

The interim regulation applies to all cases pending review from May 12, 2006. On remand, the BIA denied Scheerer's motion to reopen, ruling that he did not qualify under the narrow exception that allows arriving aliens to apply for adjustment status before an IJ, thus requiring him to apply through USCIS. Scheerer subsequently filed a timely petition for review and a motion to reconsider with the BIA, arguing that the BIA's decision conflicted with the remand order, as he is barred from reentering the U.S. and therefore cannot pursue adjustment with USCIS.

The BIA denied the motion, asserting that the new interim regulation applied to Scheerer's case and that it was binding. The BIA also stated it lacked authority to order DHS to permit Scheerer’s reentry for adjustment purposes. Scheerer consolidated his petitions for review, raising three issues: the validity of the amended regulation, the alleged violation of due process by the BIA, and the claim of abuse of discretion in the BIA's denial of his motions. He contends that the amended regulation effectively produces the same outcome as the prior regulation, barring most paroled aliens from adjustment applications.

The amended regulation is challenged as invalid for contradicting the intent of 8 U.S.C. 1255(a). This case marks a first impression regarding the validity of 8 C.F.R. 1245.2(a)(1) in the courts of appeals. The analysis follows a two-step Chevron framework. First, if Congress has clearly addressed the issue, that interpretation prevails. If the statute is ambiguous, the second step involves assessing whether the agency's regulation is a permissible interpretation of the statute. The agency’s construction does not need to be the only possible interpretation, as long as it reasonably fills any statutory gaps.

In cases where Congress has expressly delegated authority to the agency to clarify a statute, the agency's regulations receive deference unless they are arbitrary or contrary to the statute. This deference is particularly relevant in immigration matters due to the sensitive nature of political functions involved. The governing statute allows the Attorney General to adjust an alien's status under specific conditions. Previous rulings indicated that 8 U.S.C. 1255(a) is ambiguous regarding the Attorney General’s authority to regulate eligibility for status adjustment. However, the current regulation does not change eligibility criteria but instead reallocates certain application jurisdictions from immigration courts to USCIS for adjudication.

Section 1255(a) grants authority to the Attorney General to adjust the status of aliens under prescribed regulations but does not clearly delineate which department has jurisdiction over arriving aliens in removal proceedings. The court applies Chevron step two to assess whether the regulation is a permissible interpretation of the statute. In previous case Scheerer I, the court invalidated a regulation that excluded arriving aliens in removal proceedings from eligibility for adjustment of status, noting that the statute allows for some regulatory standards but not a complete reversal of eligibility. Scheerer contends that an amended regulation similarly affects eligibility, but the court finds that the new regulation (8 C.F.R. 1245.2(a)(1)) does not bar these aliens from applying for adjustment; rather, it specifies that such applications must be filed with USCIS instead of an immigration judge (IJ). This distinction is significant, as the previous regulation imposed an absolute bar, while the amended regulation simply changes the adjudication forum. Scheerer fails to provide evidence that the amended regulation effectively prevents parolees from pursuing adjustment applications, unlike in Scheerer I, where a vast number would be ineligible. The amended regulation is deemed a reasonable interpretation of the statute, consistent with the division of adjudicative responsibilities between DOJ and DHS. Consequently, the court holds that the Attorney General acted within his authority in adopting the amended regulation. 

Scheerer also argues that due process requires the Board of Immigration Appeals (BIA) to consider his motion to reopen based on the law prior to the regulation's amendment, claiming that the BIA's application of the new regulation constitutes retroactive enforcement.

Scheerer and the amicus argue that the BIA's application of the amended regulation contravenes the remand instructions from Scheerer I. The BIA's denial of motions to reopen and reconsider is reviewed for abuse of discretion, while legal determinations are reviewed de novo. The court defers to the BIA's reasonable interpretations of regulations unless they contradict Congress's intent. Scheerer's due process claim is unsupported for two main reasons: first, the amended regulation 8 C.F.R. 1245.2(a)(1) is not retroactive as it does not impair existing rights or increase liabilities; it merely clarifies the jurisdiction of immigration courts relative to USCIS. Second, Scheerer lacks a constitutionally protected interest in discretionary relief forms, as the BIA has broad discretion in granting or denying motions. Therefore, the failure to receive discretionary relief does not constitute a due process violation.

The argument that the BIA violated remand instructions from Scheerer I is rejected, as the instructions did not mandate reopening proceedings or remanding the case for adjudication. Instead, the BIA was directed to conduct further proceedings consistent with the previous opinion. The BIA adhered to this requirement, not relying on the invalidated regulation, and the amended regulation was appropriately applied to cases like Scheerer's, which were pending review post-May 12, 2006. While the prior opinion confirmed that Scheerer could not be deemed ineligible for adjustment of status solely due to removal proceedings, it did not necessitate that his application be adjudicated by an immigration court.

Scheerer and an amicus argue that the BIA abused its discretion by denying motions related to his adjustment application, asserting that the BIA still retained jurisdiction to reopen the case. They reference prior cases where the BIA was found to have abused discretion in similar contexts. However, the reliance on these cases is deemed misplaced as the petitioners in those instances were not arriving aliens and operated under different regulations that allowed for adjustment applications during removal proceedings. In Scheerer's case, the applicable regulations indicate that immigration courts lack jurisdiction over his adjustment application, making it impossible for such an application to be adjudicated in removal proceedings. Consequently, the BIA did not abuse its discretion in denying the motions.

Furthermore, Scheerer and the amicus contend that the BIA's decisions contradict the intent of the amended regulation as outlined in the DOJ's implementation procedures, which suggest favorably granting continuances or motions to reopen under certain conditions. However, due to the regulatory differences in Scheerer's case, the BIA's actions were justified.

The comment referenced does not establish a policy for reopening proceedings when there is no possibility of adjudicating an alien’s adjustment application during those proceedings. The Board of Immigration Appeals (BIA) reasonably interpreted the amended 8 C.F.R. 1245.2(a)(1) to mean that applications like Scheerer's would only be processed by U.S. Citizenship and Immigration Services (USCIS), justifying the denial of Scheerer's motions. The findings indicate no abuse of discretion by the BIA, leading to the denial of the petitions for review. However, the government acknowledges the unique circumstances of the case and suggests that Scheerer may have options for relief, such as filing an adjustment application with USCIS while requesting that any applicable admission bar not hinder his status adjustment, or seeking advance parole to enter the U.S. after his release from prison in Germany. DHS is open to considering these proposals.