*1 Against under the Convention Torture was by MOUELLE; Jean
supported substantial evidence. See Germaine Gonzales, Mompongo Mouelle, v. 406 F.3d Petitioners, (8th Cir.2005) (standard review). Un v. Convention, Menjivar der the must demon GONZALES,1 Attorney Alberto it likely strate that is more than not that States, Respondent. United subjected she would be to torture re Salvador, El turned 8 C.F.R. 03-1760, Nos. 03-3086. 208.16(c)(2), and that such torture would United States Appeals, Court of be inflicted “with the acquies consent or Eighth Circuit. cence of a official.” public 208.18(a)(1). “Acquiescence” at least re Submitted: Oct. 2004. quires prior awareness of the torture and a July Filed: legal responsibility breach of a to inter 208.18(a)(7); vene. 8 C.F.R. Lopez-Soto (4th
v. Cir.
The IJ found that police did not
ignore against Menjivar threats of which prior knowledge, and that did not
police acquiesce” “somehow in the against
commission of crimes her. For above,
the reasons discussed the evidence compel finding
does not El Sal- police acquiesced
vadoran have or would
acquiesce in Moncho’s criminal activities. newspaper articles most demon-
strate that government problem has a
controlling gang activity of it which
aware, compel but this is insufficient to
finding of willful blindness toward the
torture of parties. citizens third
Lopez-Soto,
therefore find substantial evidence
supports the BIA’s determination that
Menjivar was not eligible for relief under
the Convention Against Torture. reasons,
For foregoing petition
for review is denied. Petitioner’s motion suspend ruling on appeal is also denied. appointed Alberto Gonzales has Appellate suant to Federal Rule of Procedure serve as' General of the United 43(c). States, respondent and is pur- substituted as *2 Peterson, argued, St.
Nancy Alaine Paul, Minnesota, petitioners. for Pettinato, Washington, Barry argued, J. (Peter Bernal, Keisler, D. David V. D.C. brief), Paisner, on the and Jennifer respondents. GRUENDER, BYE, BEAM, and
Before Judges. Circuit BEAM, Judge. Circuit Mouelle ask us Jean and Germaine regarding two grant petition a for review (BIA) deci- Immigration Appeals Board of rendered in their removal sions ings. deny petitions.
I. BACKGROUND Mouelle, a native and citizen of the Jean Congo, entered the United Republic exchange visitor so States 1989 as a J-l pursue masters and doctoral de- he could grees University from the of Idaho. His wife, Germaine, also a native and citizen Republic Congo, entered the United exchange an visi- dependent as a tor. The Mouelles did not return nonimmi- Republic Congo when their grant expired. visas May application In filed an Jean removal, asylum withholding of removal, naming dependent.2 withholding Germaine as o'f which appar- asylum May application while their ently yet had not addressed pending, presented Jean was with the immigration INS. The judge set the mat- go opportunity Canada field re- ter for an evidentiary hearing August and to search assist class he was
teaching. Cognizant immigration of their *3 At the evidentiary hearing in August they
status and the likelihood that would 1999, the immigration judge denied the to be able reenter the United asylum Mouelles’ claims for Canada, and they withhold- went to the Mouelles con- ing of removal. Immigration finding tacted the and After Naturalization the applied removable, Service3 and parole, advance Mouelles were the immigration which would allow them to reenter the judge granted them the privilege of volun- granted United States. The INS that re- tary departure long they depart so be- quest. The Mouelles left the United 5, 1999, fore October post and departure 31, 1997, May States on and reentered a bonds. later, 1, 1997, day on Eastport, June appealed Mouelles the immigration
Idaho, pursuant to their advance parole. judge’s ruling to the BIA. The BIA af- 15, 1998, April On the INS commenced firmed the immigration judge’s decision in proceedings against Mouelles, removal February 2003. But because the Mouelles serving them appear with notices to be- posted had not departure bonds, their an immigration judge. fore At the first BIA revoked their privilege voluntary 1998, hearing August removal in the INS departure, making the Mouelles immedi- allegations realized the in contained ately notices to appear were inaccurate. The removable.. Mouelles, however, agreed to allow the During years the three-and-a-half INS to add additional charges. removal appeal their pending, was the Mouelles charges sought Those new removal under sought employment-based visas. Jean 1182(a)(7)(A)(i)(D §§ (B)(i)(II), 8 U.S.C. & an Immigrant filed 1-140 Petition for Alien essentially for the Mouelles’ failure to 28, on April petition Worker 2001. That
present proper they documentation when 2001, was denied in November reentered the in United States June 1997. Jean had not shown that it was in the At the next hearing in October nation’s interest for the 1998, the they Mouelles admitted that job-offer to waive the requirement of 8 were inadmissible under subsection 1153(b)(2)(B). Germaine an (B)(i)(II) they sought when reentry in 1-140 Immigrant Petition for Alien 1997, Work- June immigration judge er filed on her behalf her employer, found were also inadmissible un- (A)(i)(I). Services, der Presbyterian subsection In lieu of remov- Homes Inc. al, Jean renewed request asylum his petition That in approved August 2002 very obtaining Jean also came ability close to law- diversity before his obtain visa had residency ful in 1994 when he won the diver- expired. But, sity lottery. nonimmigrant, visa aas J-l required objection” Jean was to obtain a “no In March the functions of the Immi- Congolese government letter from the in or- gration and Naturalization Service were two-year foreign der to relieve him of the J-l newly Department transferred to the formed residency requirement under 8 U.S.C. (DHS). Security of Homeland See Homeland 1182(e). Though ultimately get Jean did Security seq. §§ Act of 101 et letter, objection" get the "no he did not it 1153(b)(3)(A)(i) (ii) II. or DISCUSSION
under 8 U.S.C. (skilled professionals). or workers Asylum and With- A. No. 03-1760: holding Removal try to their did not The Mouelles the initial BIA deci regard to With on Germaine’s immigration status based 2003, denying their February in sion until March petition approved withholding of re asylum claims immigra- BIA had affirmed after the moval, only that argue the Mouelles March judge’s tion decision. their Fifth judge violated immigration adjust their applications filed Mouelles process due procedural Amendment present under 8 U.S.C. did not immigration statuses The Mouelles rights.5 ap BIA in their issue to the process due 1255(i). May the Mouelles And Thus, reopen. motion to or their peal reopen filed a motion *4 consider it. jurisdiction to we are without to the remand the matter and proceedings INS, 179 F.3d Sayaxing v. they apply could judge so that immigration Cir.1999). (7th And, juris even if we had adjustment of status. for diction, claim process Mouelles’ due the addressed, let they have not fails because BIA the Mo- July the denied established, prejudice alone —“that they reopen, stating to uelles’ motion may well have proceeding of the outcome adjustment ineligible for of status be- “are process the due viola been different had in they ‘arriving aliens’ cause are occurred.” Ismail v. tion not notwithstanding approved proceedings, (8th Cir.2005). 970, 975 396 F.3d petition.” visa [1-140] Adjustment of B. No. 03-3086: Sta- were scheduled to be re- The Mouelles tus 7,May from the States on moved United remaining ar All of the Mouelles’ removal, stayed have their 2003. We July the BIA’s 2003 deni guments address petitions the resolution of their pending the removal reopen al of their motion to for review. for apply to allow them to proceedings adjustment of status under 8 U.S.C. pending petitions have two The Mouelles 1255(i). jurisdiction § have to review ‘We consolidated for review that have been reopen to the BIA’s denial of the motion 03-1760, first, The No. concerns here. Sidikhouya v. for abuse of discretion.” February 2003 denial of the Mo- BIA’s (8th Cir.2005). Gonzales, 407 F.3d second, application. The asylum uelles’ reopen BIA to the Mo- refused 03-3086, July 2003 concerns the BIA’s No. they uelles’ removal reopen motion to denial of the Mouelles’ in “arriving were aliens 1245.1(c)(8)6 § and ings” the removal under 8 C.F.R. proceedings.4 specific testimony was recon- and detailed mate- 4. The also filed motion for Mouelles significant,” August and drew "odd conclusions BIA in ask- rial sideration with the testimony completed,” July was even inter- ing its 2003 denial before the BIA to reconsider rupted attorney, cut counsel's reopen. for Jean's off of motion to The motion closing argument. was denied in December reconsideration petitioned have not for 2003. The Mouelles regulations duplicated were and renum- 6.The decision, us. review of that so it is not before proceedings were bered while the Mouelles' INS, (8th Raffington v. Security pending. part As of the Homeland Cir.2003). immigration of 2002 and the transfer of Act DHS, regulations argue responsibilities Specifically, that the im- the Mouelles I, duplicated Chapter renumbered migration judge give were from failed to them sufficient series, placed Chapter V of asylum the 1000 fully present their and with- time to claims, Chapter regulations, V interrupted 8. We cite to the holding-of-removal Jean’s Title regulations though same can be found in testimony questioning, "failed to elicit with ineligible apply thus to for relief un- were obtained in the United prior § The Mouelles der 8 U.S.C. departure alien’s and return to from (1) arguments: they make were in fact two States, the United shall not be consid- regula- status under the arriving ered an alien purposes (2) tions, not, they regula- were 235(b)(1)(A)(i) section the Act [8 tions are invalid. 1225(b)(l)(A)(i) U.S.C. ]. added). 1001.1(q) (emphasis Status-Adjustment Eligibility The Mouelles argue that their receipt of Regulations Under the parole advance going before to Canada construction, regulatory As a matter of qualified them excep- italicized the BIA’s conclusion correct. Section did, tion. It but exception is for the . 1245.1(c) regulations of the lists certain limited purpose categories “ineligible of aliens who are 1225(b)(1)(A)®, which requires immi- apply adjustment to that status gration officers to order arriving some permanent lawful resident alien under sec- immediately removed “without fur- tion 245 of the Act [8 U.S.C. 1255].” hearing ther or words, review.” In other 1245.10(b) regulations— And section regulations, under the the Mouelles were specifically adjustments which deals with aliens when sought reentry § 1255(i) incorporates under 8 U.S.C. — *5 and their parole into the United States through those exclusions its reference to did not generally affect that status. But 1245.1(b), which, turn, section in refer- language the. italicized 1245.1(c). preclude does ex- ences section One of the section 1245.1(c) pedited removal in their cases categories ineligible because aliens is they “[a]ny granted were arriving parole. alien who is in removal advance The proceedings pursuant not, to ... regulation however, section 240 of does allow aliens § the Act [8 U.S.C. 8 C.F.R. 1229a].” arriving with parol advance to shed their 1245.1(c)(8). § arriving-alien status for the purpose of adjusting immigration Rather, status. The in pro Mouelles were removal the quoted regulation preserves that sta- ceedings § under 8 U.S.C. 1229a when tus notwithstanding the aliens’ arrival. they made their motion to But reopen. And if pro- such aliens are in removal they argue that the BIA abused its discre ceedings they try adjust when first by denying tion their motion based on 8 status,7 regulations make them ineli- 1245.1(c)(8) § C.F.R. because are not gible. So the arriving Mouelles were arriving “arriving aliens. The term alien” in proceedings is aliens removal defined as and were adjusting thus barred from an status- applicant for admission coming or es. attempting to come into the United port-of-entry States at a .... An arriv- 1245.1(c)(8) Validity § of 8 C.F.R.
ing alien
remains such even if
The
argue, alternatively,
Mouelles
212(d)(5)
8
pursuant
to section
of the Act
1245.1(c)(8)
§
1182(d)(5)
C.F.R.
],
§
invalid. After this
...
except
[8
submitted,
an
case had
granted
argued
alien who was
pa-
advance
Suc
(1st Cir.2005),
role which the alien applied
car v.
7. An alien who seeks to renew an adjustment application in removal
928 General, in his adjusted by Attorney concluded court decided. Succar regulations was inconsis- under discretion and such that 8 C.F.R. ” 1255(a)8, added)); and was id. (emphasis tent with may prescribe he step the first of Chev- (“the thus invalid under 1255(f)(2) may Attorney General U.S.A., Inc. v. Natural Res. alien”) ron (emphasis adjust of the the status Def. Council, Inc., di- “Congress ha[d] added). vested with such Administrators precise question rectly spoken may exercise that discretion discretion 2778, 104 S.Ct. issue.” 467 U.S. case-by-case Bellis v. rule or on a basis. (1984) Succar, in (quoted L.Ed.2d 694 (8th Davis, Cir. F.3d 22). parties to allowed the 394 F.3d at We 1999). upon no basis And we can find briefs, accepted we supplement their regulation that this does which to conclude of the Mouelles support an in amicus brief embody Attorney General’s deci not Law Immigration American from the discretionary afford relief to sion not to Foundation. the delineated class aliens— disagree with First respectfully Attorney proceedings. in in Succar rest- decision Succar. Circuit’s discretionary-re this General Reno stated explic- Congress notion that ed on the when it was lief basis for the of aliens were itly determined what classes has proposed. “[T]he for discre- apply and were favorably ex that she will not determined tionary adjustment-of-status relief. the status of her discretion ercise congressional judg- at 29. Given that F.3d who are ordered removed arriving aliens opinion, constituting, the court’s ment — 235(b)(1) Act or section pursuant to court of its intent —the expression a clear placed who are under regulation was inválid held that the Fed.Reg. Act.” 62 under section 240 of the because it added step the first of Chevron (Jan. again And she And, Id. even eligibility requirements. *6 discretionary nature of status stressed the Attorney though the statute vested adjustments when the interim rule issued: grant full discretion to or General with objected pol- commenters to the Some relief, adjustment-of-status the court deny icy proposed contained in the statement regulation could not concluded that [l]245.1(c)(8) § amended and rule that characterized as rule-based properly be that, an exercise of discre- indicated as of that discretion. Id. exercise tion, Attorney would not General do believe ... adjust the status 1245.1(c)(8) evaluated under properly § is 240 of the under section step, given the discretion Chevron’s first Act. under ary nature of the relief available 8 Congress surely § did U.S.C. 1255. While to commenters response who statute, it left the eligibility in the
speak to At- suggested policy this exceeded the adjustment-of-status re question whether statutory authority, it torney General’s Attorney granted lief should be 245 of the Act 1255(a) [8 is noted that section General’s discretion. (“[t]he clearly unambigu- 1255] inspect status of an alien who ously adjustment ... of status is may be states ed and admitted or enough Notably, seek to to invalidate the Mouelles did not broad 1255(a). They sought statutory status section to under as inconsistent with the scheme Nonetheless, 1255(i). adjust under section issue. court, correct, reasoning the Succar
929
decision, subject
discretionary
to such
applicability unless Congress clearly ex-
limitations as the
regulatory
presses an intent to withhold that authori-
may prescribe.
ty....
[C]ase-by-case decisionmaking in
(Mar.
10312,
6,
thousands of cases each
Fed.Reg.
year,
62
... could
Judge Friendly
favoritism,
As
wrote with re
invite
disunity, and inconsisten-
1255(a),
gard
(citations
to 8 U.S.C.
“We are unable
cy.”
omitted)).
quotations
why
any
to understand
there should be
The Succar court concluded that INS v.
general principle forbidding an administra Cardoza-Fonseca,
480 U.S.
107 S.Ct.
tor,
discretionary power,
vested with
to
(1987),
the BIA’s Congress did not mentioned, arriving that case failed aliens are aliens who mandatory-with- heightened intend the at a to the United States seek admission discretionary apply to holding showing to Attorney General’s port-of-entry. asylum. delineating this class of reasons for stated First, the quite different. This case is is clearly show that the classification aliens purport at does not regulation issue statutory scheme. under the reasonable standards, statutory eligibility interpret Fed.Reg. at 10312-13 & 10326-27. See 62 discretionary au- rather rests on the but placement aliens’ in removal arriving And gave the Congress explicitly thority that a characteristic that is a is proceedings adjustment-of- Attorney grant choosing not to reasonably sound basis for And, take we Cardo- status relief. even 1255(i).9 Ap- relief under 8 U.S.C. grant relevant to our za-Fonseca as somehow necessarily for such relief would plications congressional intent inquiry, there is no (much like proceedings lengthen mandatory-relief pro- by a similar evinced here), expediency was one have Attorney limits the General’s vision that goals of the 1996 amendments by regulation which ability to determine Nationality Act. Immigration and statutorily eligible get aliens will the relief 104-249,1996 180026, *2 duty, to at power, S.Rep. but not the No. WL that he has grant. Thus, we conclude (Apr. adjustment bar to status con- regulatory of the As a rule-based exercise 1245.1(c)(8) in 8 is valid adjust- status tained C.F.R. discretion to allow General’s 1245.1(c)(8) ments, we conclude section by and the BIA did not abuse its discretion contrary to regulations is not invalid as reopen motion to on denying the Mouelles’ mean, however, the statute. This does that basis. To necessarily valid. have considered all of the Mouelles’ valid, must gap-filling regulations be such properly pre- that are arguments other light legislature’s be “reasonable review, and by petitions sented at design.” Lopez, revealed 531 U.S. omitted); them without merit. (quotation accord we find S.Ct. (“reason- Mak, at Hong Fook scheme”). ably statutory related to the III. CONCLUSION
The class of aliens delineated (1) Accordingly, deny petitions. we consists of ing only percent opined about two to three 9. The court in Succar relevant placement pro- in removal parolees who entered the United States in characteristic — ceedings effectively barred most aliens who placed in 2003 have been — paroled adjusting from status be- fact, ings. Resp. Supp. Br. 13 n. 1. In in removal cause most aliens were did not initiate removal INS *8 Thus, proceedings. 394F.3datl8. the court 15, 1998, against April over the Mouelles until concluded, contrary to 8 paroled after the Mouelles were ten months 1255(a) paroled aliens were Moreover, even if we into the United States. among adjust status under those paroled assumed that most aliens into the matter, evidentiary we the statute. As an placed pro- United States were in removal regulation bars most cannot conclude that the ceedings, 1255 does show paroled adjusting status. Unlike aliens from few, most, congressional intent to vest a or all Succar, the court we have not been "in- right aliens with the formed,” id., of that fact. And in this case the discretionary. status. Relief remains suggest- Attorney General cites DHS statistics BYE, Judge, dissenting. Circuit
I I respectfully dissent. would hold 8 is invalid for the rea
C.F.E.
sons articulated in Succar v. (1st Cir.2005). Accordingly,
F.3d 8 I vacate the
would removal orders and re proceedings.
mand for further Joseph UNUAKHAULU, Petitioner,
Ehi
v. GONZALES,* Attorney
Alberto R.
General, Respondent.
No. 02-73837.
United Court of Appeals,
Ninth Circuit.
Submitted Nov. 2004.**
Filed Dec. 2004.
Amended Feb. 2005. July
Second Amendment Aug.
Order Amended * ** prede- panel Alberto Gonzales is substituted unanimously for his This finds this case suit- cessor, Ashcroft, Attorney John General of argument. able for decision without oral *9 States, pursuant R.App. the United to Fed. P. 34(a)(2). R.App. Fed. P. 43(c)(2).