Yan Zhu Zheng v. Attorney General of the United States

Citation: 313 F. App'x 518Docket: No. 06-4681

Court: Court of Appeals for the Third Circuit; February 10, 2009; Federal Appellate Court

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Yan Zhu Yang petitioned for review of a Board of Immigration Appeals (BIA) order that dismissed her motion to reconsider its ruling on her ineligibility for adjustment of status as an arriving alien in removal proceedings. Yang, a native of China, entered the U.S. in January 2000 and was paroled to pursue her asylum claim. She received a Notice to Appear (NTA) alleging misrepresentation of identity and lack of a valid entry document. In April 2001, Yang conceded the charges and sought various forms of relief, including asylum and adjustment of status based on her marriage to Zhou Xian Ni, but failed to provide proof of the marriage or related immigration documentation. 

The Immigration Judge (IJ) denied her adjustment request in November 2003, citing her ineligibility as a matter of law, and the BIA affirmed this decision in January 2005. Yang's subsequent motion to reconsider, based on the case Succar v. Ashcroft, was denied by the BIA, which did not view Succar as controlling precedent. While her review petition was pending, the court ruled in Zheng v. Gonzales that the regulation rendering parolees ineligible for adjustment of status was invalid, making Yang eligible to apply. The case was remanded for further consideration, and the government requested a remand for the BIA to reconsider Yang's motion in light of this new ruling. By the time of the remand, interim regulations had been established, allowing arriving aliens like Yang to apply for adjustment of status under specific conditions.

On October 4, 2006, the Board of Immigration Appeals (BIA) denied Zheng’s motion to reconsider, stating that her case did not meet the exception allowing for adjustment of status before an Immigration Judge (IJ) under existing interim regulations. The BIA required Zheng to file her adjustment of status application directly with the U.S. Citizenship and Immigration Services (USCIS). Subsequently, Zheng filed a timely petition for review and a motion for a stay of removal, which the court granted on November 17, 2007, with the government indicating no opposition.

Zheng presents two arguments for her petition. Firstly, she contends that the amended regulation preventing paroled aliens from applying for adjustment of status before an IJ is ultra vires and contrary to Congressional intent. The BIA previously found her ineligible for adjustment of status due to former 8 C.F.R. § 1245.1(c)(8), which barred arriving aliens in removal proceedings from such status adjustments. However, this regulation was deemed invalid in previous case law, including Zheng, 422 F.3d at 111-121, as it conflicted with the Immigration and Nationality Act (INA) § 245(a). This section allows for the adjustment of status for aliens inspected and admitted or paroled into the U.S., provided they meet certain conditions.

In reaction to judicial decisions questioning the validity of the former regulation, the Attorney General rescinded 8 C.F.R. § 1245.1(c)(8) and introduced a new interim regulatory framework in May 2006. Under this revised scheme, the USCIS generally has the authority to adjudicate adjustment of status applications, unless an IJ has jurisdiction under 8 C.F.R. § 1245.2(a)(1). The amended regulation specifies the limited circumstances under which an IJ can adjudicate applications from arriving aliens placed in removal proceedings, primarily focusing on the alien's previous filings with USCIS and the conditions of their removal proceedings.

The BIA denied Zheng’s motion to reconsider regarding her adjustment of status application, citing interim regulations that require her to file directly with USCIS as she does not qualify for an exception under 8 C.F.R. § 1245.2(a)(1)(ii)(A)-(D). Zheng argues that these regulations are ultra vires, as they effectively bar her eligibility for adjustment of status, contradicting the intent of INA § 245(a), which allows for adjustment for aliens who have been admitted or paroled into the U.S. She claims the lengthy processing times at USCIS prevent her from having her application adjudicated before her removal due to INA § 241(a)(1)(A)'s mandate for removal within 90 days of a final order. However, the BIA noted that Zheng has administrative options to stay her removal, such as filing for an administrative stay or a motion to reopen her proceedings, which she has not pursued. The BIA highlighted that Zheng's situation stems from her failure to apply to USCIS since the regulations were implemented in 2006, despite being informed of the proper procedures. Furthermore, a stay of removal has been in effect since November 2007, providing her ample time to file with USCIS. Zheng’s choice to challenge the regulations rather than follow the existing procedures is viewed as unwarranted. The BIA also stated that it erred by denying the adjustment application instead of remanding it to the IJ or USCIS.

Zheng's case is governed by new Attorney General regulations, which prevent remanding the case to the Immigration Judge (IJ) for adjustment of status. She must instead file her application with USCIS independently of the removal proceedings. The Board of Immigration Appeals (BIA) denied her motion to reconsider, and Zheng argues that the BIA erred by not considering remanding to USCIS or IJ for adjournment or termination of her proceedings. However, she fails to provide legal authority supporting her claim that the BIA could remand to either entity. While she cites a previous case suggesting BIA might have such authority, it relied on an outdated regulation that has since been amended, clarifying jurisdictional issues. The current regulation, 8 C.F.R. § 1245.2(a)(1), specifies that arriving aliens like Zheng do not qualify for immigration court jurisdiction over adjustment applications. This means the BIA cannot remand to the IJ or USCIS, as such remands are not permitted under the amended regulations and would not fall within the BIA's jurisdiction after a decision from USCIS. The precedent cited further supports the BIA’s position that it does not have the discretion to extend proceedings for USCIS adjudication.

If the Board of Immigration Appeals (BIA) remands a case to the USCIS or an Immigration Judge (IJ), it would exceed its jurisdictional limits, as established in Matter of Sano, where it was noted that the BIA can only act if explicitly granted jurisdiction by regulations. Recent appellate decisions challenge this stance. In Kalilu v. Mukasey, the Ninth Circuit found the BIA abused its discretion by denying an arriving alien's motion to reopen based solely on jurisdictional grounds, thereby undermining the alien's opportunity to adjust status based on marriage to a U.S. citizen. The court emphasized that without reopening or continuance, the alien risks removal despite having a valid adjustment application pending with USCIS. The BIA’s denial was also inconsistent with its usual practice of favorably granting motions to reopen for unadjudicated I-130 petitions, leading the court to remand the case for reconsideration.

In Ni v. BIA, the Second Circuit reviewed multiple petitions from arriving aliens under removal orders and concluded that the BIA erred in denying motions to reopen based on a lack of jurisdiction for adjustment applications. The BIA's reliance on a regulation barring adjustment applications in removal proceedings was acknowledged, but the court noted that the BIA failed to provide a rational explanation for its decisions. This lack of explanation constituted an error of law, prompting the court to remand the cases for further consideration. The BIA's mere recitation of jurisdictional limits, regardless of accuracy, did not fulfill its obligation to consider the relevant facts and provide a reasoned decision.

The petitioners aimed to reopen their removal proceedings to pursue an adjustment of status under new regulations, specifically intending to present their applications to the USCIS rather than the BIA. The BIA incorrectly assumed the petitioners would continue with their applications in removal proceedings, disregarding petitioners' statements about their intent to file with the USCIS. The motions to reopen likely aimed to lift final orders of removal to facilitate this process. The BIA's denial of the motions based on a lack of jurisdiction was not a rational response to the petitioners' requests.

In contrast, Zheng has not filed a motion to reopen her removal proceedings or an adjustment application with the USCIS, despite being informed by the BIA that such filing was appropriate. Zheng argues that the interim regulations do not apply to her and seeks adjustment of status in removal proceedings, a position deemed meritless as the regulations explicitly prevent this. The BIA correctly denied her motion to reconsider based on jurisdiction since it did not involve a request for reopening or continuance for USCIS filing. There is no error in the BIA's decision, which is not supported by the cases of Kalilu and Ni, and thus her petition for review is denied. Zheng's prior counsel withdrew her asylum application without submitting a subsequent one, and her claim for derivative lawful permanent resident status based on her husband's adjustment is acknowledged, with her status as an 'arriving alien' confirmed.

An arriving alien retains that status even if paroled under section 212(d)(5) of the Act, regardless of whether the parole is later revoked. However, an arriving alien paroled into the U.S. before or after April 1, 1997, under specific advance parole conditions, is not automatically considered an arriving alien for certain legal provisions. Zheng identifies herself as a paroled alien, but it is clarified that a paroled alien is still an arriving alien. 

The concept of "ultra vires" refers to actions beyond the authority of an entity, citing Hollar v. Gov't of the Virgin Islands. While Zheng acknowledges the interim regulations align with INA § 245(a), making it feasible for status adjustment applications to be filed with USCIS, she struggles to contest this consistency. 

The case of Scheerer v. Attorney General illustrates the complexities of an arriving alien's status. After being denied asylum and removal proceedings, Scheerer sought to adjust his status based on marriage to a U.S. citizen. The BIA denied his motion to reopen, interpreting regulations that deemed him ineligible to apply for adjustment. The court of appeals, however, found the BIA's interpretation of the regulations inconsistent with INA § 245(a) and remanded the case, leading to DHS facilitating Scheerer's reentry. 

The Attorney General later enacted interim regulations, which the BIA used to deny Scheerer's subsequent motion to reopen. Scheerer argued that these regulations effectively barred paroled aliens from seeking adjustment, similar to prior regulations. Ultimately, the court upheld the interim regulations, determining they reasonably interpreted the statute, allowing applications for adjustment but requiring them to be filed with USCIS rather than an immigration judge. Zheng has not responded to the implications of this ruling on her own legal situation.