5.                  News From the Courts

Scheerer v. Chertoff, (11th Cir. Jan. 15, 2008)

The Attorney General did not exceed his authority in promulgating 8 CFR §1245.2(a)(1), which bars IJ jurisdiction over most applications for adjustment of status by arriving aliens in removal proceedings and places jurisdiction over such applications with USCIS.

Petitioner, a native and citizen of Germany , entered the U.S. on August 9, 2000 as a conditional parolee and filed an application for asylum and withholding of removal. The immigration judge denied relief and the BIA affirmed. While his petition for review was pending, Petitioner filed a motion to reopen so that he could apply for adjustment of status based on his marriage to a U.S. citizen. Citing 8 CFR §1245.1(c)(8), the BIA denied the motion, concluding that as an arriving alien, Petitioner was ineligible for adjustment of status. A second petition for review was filed and consolidated with the first petition. In November 2005, Petitioner was removed to Germany . On review, the court struck down 8 CFR §1245.1(c)(8) as an impermissible construction of the statute, reversed the denial of Petitioner's motion to reopen and remanded the case to the BIA. Scheerer v. U.S. Att'y Gen. (Scheerer I), 445 F.3d 1311 (11th Cir. 2006).

In response to the court's decision in Scheerer I and similar decisions in other circuits, the Attorney General repealed 8 CFR §1245.1(c)(8) and replaced it with 8 CFR §1245.2(a)(1). Unlike the former regulation, the new provision permits arriving aliens in removal proceedings to apply for adjustment of status, but strips the IJ of jurisdiction over most cases and requires the applications to be filed with and adjudicated by USCIS. The BIA relied on the interim regulation to deny the remanded motion, finding that Petitioner did not fall within the exception permitting IJ adjudication. The BIA also denied Petitioner's subsequent motion to reconsider.

The court first addressed the validity of amended 8 CFR §1245.2(a)(1). Petitioner argued that the amended regulation is substantively identical to the repealed 8 CFR §1245.1(c)(8), in that it bars virtually all parolees from seeking adjustment of status, and therefore, is contrary to the intent of INA §245(a). The court began by applying the first of the familiar two-step test set forth in Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984). In Scheerer I, the court found that INA §245(a) is ambiguous as to whether the Attorney General may regulate eligibility for adjustment of status. 445 F.3d at 1321. The court noted, however, that the precise question at issue in the present case is different because the amended regulation does not alter eligibility for adjustment, but rather "removes a category of applications from the jurisdiction of the immigration courts…." Because Congress did not expressly state whether DHS or the IJ has authority to adjudicate adjustment applications filed by arriving aliens in proceedings, and the statute does not unequivocally authorize the Attorney General to remove such applications outside the jurisdiction of DOJ, the court found that the regulation's validity is more properly analyzed under the second Chevron step. Therefore, the court considered whether the regulation is based on a permissible construction of the statute.

In Scheerer I, the court invalidated 8 CFR §1245.1(c)(8) because it excluded a class of aliens from eligibility for adjustment of status. However, the court noted, unlike the former regulation, 8 CFR §1245.2(a)(1) does not bar arriving aliens in removal proceedings from eligibility for adjustment of status-such persons are eligible for adjustment, but must generally file their applications with USCIS instead of with the IJ. The new regulation therefore, simply delineates the forum in which the applications must be adjudicated. Moreover, the court found the amended regulation to be a reasonable construction of INA §245(a)'s delegation of authority to the Attorney General. The court held that the Attorney General did not exceed his authority in promulgating 8 CFR §1245.2(a)(1) and upheld its validity.

The court also rejected Petitioner's argument that due process required the BIA to review his motion to reopen under the law that existed at the time of remand, rather than under the new regulation. The court explained that 8 CFR §1245.2(a)(1) does not have retroactive effect because statutes and regulations that dictate jurisdiction "speak to the power of the court rather than to the rights or obligations of the parties" and such provisions generally are not considered retroactive. Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994). See also Labojewski v. Gonzales, 407 F.3d 814, 819 (7th Cir. 2005). Furthermore, the court found, Petitioner's due process claim must fail because there is no constitutionally protected liberty interest in either the granting of a motion to reopen or in adjustment of status, both of which are purely discretionary forms of relief. See Garcia v. AG of the United States, 329 F.3d 1217, 1224 (11th Cir. 2003) (per curiam).

Finally, the court rejected the argument that the BIA abused its discretion in denying Petitioner's motions. Specifically, Petitioner argued that the BIA should have granted the motion, thus permitting Petitioner to reenter the U.S. and continue his case until USCIS issued a decision on his adjustment application. Petitioner cited a number of cases where the court found an abuse of discretion in the denial of a continuance where a visa petition was pending and the alien was seeking adjustment of status. See e.g. Haswanee v. United States AG, 471 F.3d 1212, 1218 (11th Cir. 2006) (per curiam); Merchant v. United States AG, 461 F.3d 1375, 1379 (11th Cir. 2006). However, the court found Petitioner's reliance on these cases misplaced because the petitioners were not arriving aliens and were therefore entitled to initiate or renew adjustment applications in proceedings before the IJ. See 8 CFR §§1245.2(a)(1)(i), (a)(5)(ii). The court explained that continuances in those cases were warranted because the IJ would have authority to adjudicate the applications. In the present case, where there was no possibility that Petitioner's application would be adjudicated by the IJ, the BIA did not abuse its discretion in denying the motions. The petition for review was denied.