Samirah v. Holder
2010 U.S. App. LEXIS 24684
| 7th Cir. | 2010Background
- Samirah, a Jordanian citizen, entered the U.S. on a student visa and remained even after it expired, never becoming a lawful resident but building a long U.S. presence.
- He twice sought adjustment of status and was denied for unauthorized employment and for a religious-worker visa mischaracterization.
- In 2002 he sought advance parole to visit his ill mother while preserving his adjustment opportunity.
- Immigration authorities granted advance parole in December 2002 and issued Form I-512L authorizing return to pursue his adjustment.
- After completing his visit, parole was revoked and he was denied reentry, despite carrying an unexpired I-512L, prompting litigation focused on the consequences of parole revocation.
- The Seventh Circuit ultimately held that restoration of his pre-parole status allowed him to pursue his adjustment application via mandamus, remanding to enable his return for that purpose.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation of advance parole requires restoration of pre-parole status | Samirah seeks return to pursue adjustment | Holder argues revocation bars return or review | Restoration required; mandamus allowed limited return for status press of adjustment |
| Whether Form I-512L and 8 C.F.R. § 212.5(e)(2)(i) support restoration rights | Samirah's pre-parole status includes presence in U.S. | Regulation applies to parole; revocation not reviewable | Regulation unambiguously supports restoration and return to pursue adjustment; revocation violated by government |
| Whether mandamus is available to compel return to press adjustment | Mandamus to restore right to return | No statutory basis for mandamus here | Mandamus available to compel steps enabling return to press adjustment |
| Whether consular nonreviewability bars relief or affects reentry | Court should not be barred from review | Visa denials typically nonreviewable | Consular nonreviewability not dispositive; status restoration permits return for adjustment proceedings |
| Scope of relief on remand; whether removal hearings or alternative remedies are required | Return and removal hearing if necessary | Removal proceedings may be enjoined and may be inappropriate | Remand for mandamus to enable return for adjustment; removal hearing not necessarily mandated at this stage |
Key Cases Cited
- Samirah v. O'Connell, 335 F.3d 545 (7th Cir. 2003) (reversal of preliminary injunction; reviewability of advance parole revocation narrowed; not dispositive of current issue)
- Barney v. Rogers, 83 F.3d 318 (9th Cir. 1996) (advance parole gives right to return to complete adjustment)
- In re G-A-C-, 22 I. & N. Dec. 83, 22 I. & N. Dec. 83 ((BIA 1998)) (advance parole described as a mechanism for return; misnomer about parole)
- Ibragimov v. Gonzales, 476 F.3d 125 (2d Cir. 2007) (describes advance parole as advance authorization of parole; actual parole at port of entry)
- Palmer v. INS, 4 F.3d 482 (7th Cir. 1993) (assimilates parole seekers to entrants for adjustment context)
- Iddir v. INS, 301 F.3d 492 (7th Cir. 2002) (mandamus availability when statutory conditions met)
- Kucana v. Holder, U.S. _, 130 S. Ct. 827 (2010) (addressed scope of judicial review of discretionary determinations)