443 F. App'x 692
3rd Cir.2011Background
- Mamo, an Albanian national, entered the United States in 1998 without inspection and was found removable; he sought asylum, withholding, and CAT relief but was denied in 1999 as not credible.
- While his appeal was pending, Mamo married a U.S. citizen and sought adjustment of status based on his spouse's petition, leading to a remand to the IJ in 2003 which he did not attend, resulting in an in absentia removal order.
- ICE detained Mamo in 2004; he posted bond in December 2004 and was released in January 2007 to pursue adjustment under INA § 245(a).
- The IJ denied adjustment, concluding Mamo was not ins inspected and admitted or paroled, because release on bond did not prove parole into the United States.
- The BIA adopted the IJ’s decision, holding that release on bond does not constitute “parole into the United States” for purposes of § 245(a).
- The Government filed a motion for summary action, and the court ultimately granted it, denying Mamo’s petition for review based on Delgado-Sobalvarro foreclosing his arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bond release counts as parole for §245(a) eligibility. | Mamo argued release on bond was conditional parole under §236(a)(2)(B). | The BIA/agency concluded bond release is not conditional parole and thus does not qualify as parole under §212(d)(5). | No; conditional parole under §236(a)(2)(B) is not parole into the U.S. for §245(a) purposes. |
| Whether Delgado-Sobalvarro forecloses Mamo's §245(a) eligibility argument. | Delgado-Sobalvarro should not apply retroactively to bar relief. | Delgado-Sobalvarro forecloses the argument that bond release constitutes parole for §245(a). | Foreclosed; summary action warranted to deny petition. |
Key Cases Cited
- Delgado-Sobalvarro v. Attorney General, 625 F.3d 782 (3d Cir. 2010) (parole under §212(d)(5)(A) vs conditional parole under §236(a)(2)(B) restricts §245(a) eligibility)
- Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) (plenary review over BIA’s statutory interpretations)
- Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007) (INS guidance not binding; distinctions between parole types)