Sabri I. SAMIRAH, Plaintiff-Appellee, v. Eric H. HOLDER, Jr., Attorney General of the United States, Defendant-Appellant.
No. 08-1889
United States Court of Appeals, Seventh Circuit
Decided Dec. 3, 2010
Argued Sept. 8, 2010.
The gang-related evidence that we previously discussed helped establish that King‘s comments were not mere boasting. Guajardo testified that Zambrano was a “Corona” of the Latin Kings, that King was appointed the “Supreme Inca” by Zambrano, and that together, they were the two most powerful Latin Kings not in prison. The constitution found at King‘s home stated that a “Corona” is the highest-ranking officer of the Latin King nation. The gang‘s rules forbid members from accumulating debts. And King had punished lower-ranking gang members for offending Zambrano and disobeying orders. This evidence showed that King and Zambrano were leaders of the gang, that King worked closely with Zambrano, and that King could back up his promise to Guajardo that he and Zambrano would provide protection for Guajardo‘s drug trafficking consistent with gang rules—or so a jury could find. See generally Alviar, 573 F.3d at 537 (explaining the role of gang-related evidence in proving conspiracy allegations and finding that “[t]he fact that [the defendants] were bound together by their gang membership made it more likely that they participated in a conspiracy“).
Furthermore, Guajardo had an important conversation with Zambrano himself. After he delivered the sham kilo to King, Guajardo spoke to Zambrano about Aguilar, who also had insurance protection through King and Zambrano. Guajardo expressed concern because he was late on a payment to Aguilar for cocaine and did not want to pay a penalty. Zambrano replied that he had called Aguilar and told him to call Guajardo. A jury could infer that, had Zambrano not been a part of the drug trafficking insurance conspiracy, he would not have been interested in or involved with Guajardo‘s debts to Aguilar.
King‘s primary argument is that there was no direct evidence that Zambrano and King had a “meeting of the minds“—that is, no recordings of Zambrano agreeing to the insurance arrangement. But, as King concedes and as we previously discussed, a conspiracy can be established by indirect evidence. Taylor, 116 F.3d at 271. Furthermore, the record explains why Guajardo never spoke to Zambrano. When Guajardo suggested that he talk to Zambrano himself, King replied, “Yeah, no, we don‘t do it that way. I‘ll sit down with Viejo and I‘ll get back with you.” Essentially, King is asking us to reweigh the evidence, which we cannot do. Corson, 579 F.3d at 812. King was entitled to argue to the jury that, due to the lack of direct evidence of Zambrano‘s agreement, they should reject the government‘s conspiracy theory. We cannot say that, when viewing all the evidence in the light most favorable to the government, there was no rational basis for the jury‘s decision to find King guilty on the conspiracy count.
For all these reasons, the judgment of the district court is AFFIRMED.
Paul F. Stone (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Defendant-Appellant.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge.
In the more than seven years that have elapsed since our first decision in this seemingly interminable immigration case, Samirah v. O‘Connell, 335 F.3d 545 (7th Cir.2003), the issues presented to us have changed, requiring us to conduct a fresh analysis. The government insists that our first decision, reversing the grant of a preliminary injunction to the plaintiff, is dispositive of the present appeal. That isn‘t true. The issues are different. The central issue in the first appeal—the reviewability of revocation of “advance parole“—has dropped out, and the relief sought in the present appeal (mandamus) is different from that sought unsuccessfully in the prior one (habeas corpus). We‘ll see that an immigration regulation entitled the plaintiff, upon the revocation of his advance parole, to the restoration of his pre-parole status, that of an applicant to adjust his status from nonlawful resident to lawful resident. But to pursue his application, he had, by law, to be physically present in the United States. The government, in violation of the regulation, refused to let him return to the United States. He is entitled to a writ of mandamus directing the Attorney General to enable him to return. That is the case in a nutshell, but the complexity of immigration law will require an unavoidably tedious elaboration of our analysis. The issues presented by this appeal have not been briefed and argued as carefully as we would like, perhaps because of that complexity; but we think we can see our way clear to a sound result.
The plaintiff, a citizen of Jordan, first came to the United States 23 years ago on a student visa. Although the visa expired at some point, he remained in the United States. He didn‘t become a lawful resident, but he obtained a Ph.D., married, had three children, was continuously employed, and had never been placed in deportation (now called removal) proceedings. Twice he applied to adjust his status to that of a lawful resident and both times he was turned down, the first time because he had accepted employment without the immigration service‘s authorization and the second time because a religious-worker visa obtained on his behalf by the American Middle Eastern League was determined to be invalid. In the course of the second rejection the immigration service cited two media reports which suggested that the plaintiff was affiliated with political groups that either supported Hamas or endorsed its views. The government has not repeated these shadowy accusations in the present proceeding, and the plaintiff has never been placed in removal proceedings.
In 2002, the year after the denial of his second application for adjustment of status, the plaintiff learned that his mother, who lives in Jordan, was ill. He hadn‘t seen her for years and wanted to visit her. But he also wanted to preserve the opportunity to adjust his status, so he filed a third application and at the same time asked the immigration authorities for what is called “advance parole.” Advance parole authorizes an applicant for adjustment of status to travel outside the United States without prejudice to his application, and to return—even though he isn‘t a lawful resident and doesn‘t have a visa—to
In December 2002 the immigration service granted the plaintiff advance parole (it didn‘t have to, but it did), and having done so sent him a travel document (Form I-512L) authorizing “a transportation line to accept the named bearer on board for travel to the United States without liability... for bringing an alien who does not have a visa.” The form, which thus is a substitute for a visa, goes on to explain that its purpose is to enable the bearer to return to the United States “to await the adjudication of his application for adjustment of status.” An application for adjustment of status cannot be filed by someone who is not in the United States,
Nevertheless, when, his visit completed, the plaintiff tried to return to the United States, the immigration service informed him that his advance parole had been revoked, and it refused to let him enter the country despite the fact that he was carrying his unexpired Form I-512L. Although the form does say that the bearer may be denied reentry to the United States if he is “inadmissible,”
The government argues that the revocation of his advance parole made him inadmissible because it left him without an entry document, as required by
It is true that Palmer v. INS, 4 F.3d 482, 484 (7th Cir.1993), says that “an alien seeking to adjust his status to that of a lawful permanent resident is assimilated to the position of an applicant for entry into the United States.” But that was said in a case in which the alien was in the United States and so could pursue his application for adjustment of status. When the applicant is outside the United States, the restoration of his status as an applicant for adjustment of entry requires that he be allowed to return to this country. Of course, so far as entitlement to such an adjustment is concerned, the applicant has no greater rights than that of an applicant who is already in the United States.
Had the plaintiff, instead of trying to fly back to the United States, flown to Canada or Mexico and then smuggled himself into this country without being detected and apprehended, he would have been subject to removal like any other nonlawful resident. But that would not have prevented him from pressing his application for adjustment of status. The status sought is that of lawful resident; the seeker by definition is not a lawful resident. Not being a lawful resident of the United States, the plaintiff was subject to removal before he left the country on advance parole. Yet no such proceeding had ever been brought against him, or, so far as we know, had ever been contemplated. By whatever means or route he got back to the United States, even if it was in a coffin in the cargo hold of an airliner, disguised as Count Dracula (cf. Love at First Bite), he could have continued to seek to adjust his status to that of a lawful resident, until and unless he was removed.
And likewise if the plaintiff had flown directly to the United States from Jordan. But his flight happened to make a stop at Ireland‘s Shannon Airport. Congress has authorized the establishment of U.S. immigration checkpoints at foreign airports in order to prevent unauthorized persons from flying into the United States,
Revocation of parole, because it is an exercise of discretionary authority by the immigration authorities,
Recall that the parole regulation (
The government‘s lawyer told us at argument that being present in the United States and seeking an adjustment of status do not constitute a “status” within the meaning of the regulation. We don‘t agree, as we explained earlier in distinguishing this case from Palmer. The statute governing adjustment of status sets forth in detail who may seek to adjust his status to that of an alien lawfully admitted for permanent residence. It defines, in other words, the status seeker‘s status.
Circumstances might, despite the regulation, justify the government in refusing to allow the return of someone whose advance parole had been revoked; for remember that Form I-512L warns the bearer that he won‘t be readmitted if he‘s “inadmissible.” See, e.g., In re G-A-C-, 22 I. & N. Dec. 83, 88–89 (BIA 1998) (en banc). The only ground of inadmissibility mentioned in the Form I-512 that was given to the plaintiff—
The statute governing admissibility also authorizes the exclusion of aliens who are believed to endanger national security,
Moreover, except in the case of an “arriving alien“—and for purposes of removal an alien granted advance parole is not deemed to be one upon his return to the United States, see
Although the plaintiff—a highly educated, steadily employed, long-time resident of the United States, whose children are U.S. citizens—would ordinarily be considered a good candidate to be allowed to adjust his status to that of a lawful permanent resident, Elkins v. Moreno, 435 U.S. 647, 667–68, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); Patel v. INS, 738 F.2d 239, 242–43 (7th Cir.1984); In re Hashmi, 24 I. & N. Dec. 785, 793 (BIA 2009); U.S.C.I.S. Adjudicator‘s Field Manual, § 23.2(d) (updated through Oct. 6, 2010), the denial of his two previous applications, and the possible (though only, as far as we know, a rumored) link to Hamas, suggest not. But if not—if indeed he‘s a threat to the security of the United States—he can be subjected to removal or perhaps even to criminal proceedings upon his return to this country and can be detained until those proceedings are completed. Advance parole entitled him to return to the United States for the sole purpose of pressing his application for adjustment of status; it gave him no greater rights than if he‘d never left. Barney v. Rogers, 83 F.3d 318, 321 (9th Cir.1996); see also Assa‘ad v. U.S. Attorney General, 332 F.3d 1321, 1326–27 (11th Cir.2003). Maybe he can be declared inadmissible; but that hasn‘t been done, as we said. By refusing to grant him a visa, the government is arbitrarily preventing him from exercising the right granted to him by the advance-parole regulation.
Don‘t be fooled by the word “parole.” In normal usage it means you‘re tentatively free but if you violate the conditions of your freedom you‘ll be sent back to prison. When “advance parole” in the immigration setting is revoked, your status is restored and you‘re just sent back to the United States, which we prefer to think of as the land of liberty than as a prison. Advance parole is the right to leave the United States without (in a case such as this) abandoning your right to seek adjustment of status upon your return. Revocation of advance parole terminates your “liberty” to be footloose abroad and requires you to rush back here to preserve your application.
The government makes the startling argument that “advance parole” is not “parole.” If it is not parole, what is it? If Form I-512L is not a travel document entitling an alien granted advance parole
The government‘s argument is based rather desperately on a footnote in a request for comment on a proposed rule. Eligibility of Arriving Aliens in Removal Proceedings, 71 Fed.Reg. 27,585-01, 27,586 n. 1 (May 12, 2006). The footnote states that “‘advance parole’ is the determination of an appropriate DHS officer that DHS should agree to the exercise of the parole authority under Section 212(d)(5)(A) of the Act before the alien‘s actual arrival at a port-of-entry. The actual decision to parole, however, is made at the port-of-entry. Since any grant of parole may be revoked,
To support its contention that advance parole is not parole but some other animal in the immigration bestiary, the government cites Barney v. Rogers, supra, and In re G-A-C-, supra. If the government were correct, these cases would be inconsistent with the First Circuit‘s decision in Succar, which is explicit that advance parole is a form of parole. But the government is misreading them. Barney v. Rogers says that advance parole gives an alien a “right to return for the purpose of completing her Adjustment Application“—precisely what the plaintiff is seeking. 83 F.3d at 321. And in like vein the Board of Immigration Appeals, in In re G-A-C-, described advance parole as “a mechanism by which a district director can, as a humanitarian measure, advise an alien who is in this country, but who knows or fears that he will be inadmissible if he leaves and tries to return, that he can leave with assurance that he will be paroled back into the United States upon return, under prescribed conditions, if he cannot establish that he is admissible at that time” (emphasis added). 22 I. & N. Dec. at 88. The Board went on to say that “the term ‘advance parole’ is something of a misnomer“—that really it means “advance authorization of parole“: “the alien is advised in advance of a departure that, if he meets certain conditions, he will be paroled into the United States when he returns.” Id. at 88 n. 3. The plaintiff in this case met those conditions, which are set forth in Form I-512L. Another case, Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir.2007), similarly describes advance parole as “a practice whereby the government decides in advance of an alien‘s arrival that the alien will be paroled into the United States when he arrives at a port-of-entry“—again the right that the plaintiff in this case is claiming.
Moreover, it is important in interpreting judicial opinions, as in interpreting other documents, to read words in context. Each of the cases on which the government relies involved an alien who had been granted advance parole, had left the country, and had been readmitted pursuant to a new grant of parole. Later the alien‘s status became an issue and was held to be his status when paroled into the country, not when allowed to leave under a grant of advance parole. All that the cases stand for, in short, is that when an alien who had been granted advance parole is paroled back into the country, that second grant supersedes the grant of advance parole so far as determining the alien‘s status “at the time he was paroled” is concerned.
Neither case addresses the consequence of a revocation of advance parole while the alien is out of the country. They thus do not bear on the right of an alien like the plaintiff to be restored to his status at the time of the only parole that he had ever been granted—advance parole.
Curiously, the parole statute says that after revocation of advance parole “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”
So: the “restoration of status” regulation is unambiguous; our interpretation of it as entitling the parolee, upon revocation of his advance parole, to return to the United States to press his application for adjustment of status is confirmed by Form I-512L; the government does not suggest that the regulation (its own regulation) is invalid; and the government has violated the regulation to the plaintiff‘s detriment. What next?
Nothing next, says the government; for, whatever the apparent merits of this appeal, our decision turning down the previous appeal terminated the entire litigation once and for all in sweeping language: “Section 1252(a)(2)(B)(ii) bars jurisdiction over the rest of Samirah‘s action.” 335 F.3d at 552. But section 1252(a)(2)(B)(ii) is just the section that makes the grant, denial, and—of especial significance in this case—revocation of parole nonreviewable. That is a given in this case. The question is what happens after revocation—has the plaintiff a right to return to the United States to press his application for adjustment of status?
And what is “the rest of Samirah‘s action” that we said in our first opinion was barred? The only “action” before us in the first appeal was the plaintiff‘s quest for an injunction against the revocation of his advance parole, a quest that he based on a claim to be entitled to habeas corpus relief. We held that he had no right to obtain habeas corpus relief. 335 F.3d at 549–52. That ruling was right then and is right
Nor is it true that our previous decision, by reversing the district court without stating that the case was being remanded, ended the litigation, foreclosing the further proceedings in the district court that led to the grant of relief that the government is now contesting. The prior appeal, because it was from the grant of a preliminary injunction, was interlocutory. It invoked our appellate jurisdiction under
And what if we did word our decision so loosely as to enable an interpretation that has us having resolved issues not before us and extinguished rights (specifically the right to return to the United States after revocation of advance parole) and remedies (specifically, mandamus) that were not yet ripe for decision because the litigation had not yet proceeded far enough? Is the plaintiff to be punished because we were imprecise?
The plaintiff, his action to restore his advance parole having failed, wants only to be allowed to return to the United States to pursue his application for adjustment of status. That is a right that the regulation unambiguously confers on him, and the unequivocal violation of a statute or regulation imposing a duty on a federal official can be rectified by mandamus—an order “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
Neither in its briefs nor at oral argument has the government been able to give any reason—some ground for bending the language of its own regulation to avoid absurd or otherwise untoward consequences—why the plaintiff should not be allowed to return to the United States to pursue his application for adjustment of status. He did nothing wrong by going to visit his sick mother in Jordan—the government said he could do so and return. If he is a threat to U.S. security, he can be returned under guard and kept under guard until the application is disposed of or removal or criminal proceedings brought to successful completion against him. The government has not suggested
No one has told us what kind of “security risk” the plaintiff is. The government points to no facts or reasoning that might support the immigration service‘s refusal to allow him to return to the United States. No evidence is mentioned that might connect him to Hamas. There is just the cryptic statement by the government‘s lawyer at oral argument—a statement redolent of guilt by association—that maybe the plaintiff “needs better friends” (what he really needed was a better travel agent, who wouldn‘t have routed him through Shannon). The government is going for broke: it wants an opinion from us that will affirm its right to disregard its own regulation and exclude an alien on the basis of a groundless suspicion or, for that matter, no suspicion.
The government‘s insistence that a grant of advance parole creates no right of reentry to the United States (or if it does create such a right, no remedy for its violation) comes close to nullifying advance parole; for what applicant for adjustment of status (and thus not yet a lawful resident) would take a chance on leaving the country if he can be denied reentry on an immigration officer‘s whim? The Attorney General can abolish advance parole if he wants, but he cannot be permitted to make it a trap—a device for luring a nonlawful resident out of the United States so that he can be permanently excluded from this country without any of the procedural protections that he would enjoy if, remaining in the United States, he could be removed only in a removal proceeding.
The government argues finally that the refusal of a consular official to issue a visa to an alien cannot be reviewed by the courts; and it adds (incorrectly, as we‘ll see) that without a visa the plaintiff, being an alien, won‘t be allowed back into the United States even if he waves an order of mandamus in the face of a consular official; so the plaintiff is checkmated even if his rights have been violated. The government also points out that the plaintiff has not applied for a visa—of course not; he knows his application would be denied.
The doctrine of “consular nonreviewability,” on which the government‘s argument is based and which in the United States at least has a tarnished pedigree, having been first recognized by the Supreme Court in cases that authorized the expulsion of hapless Chinese laborers, see Fong Yue Ting v. United States, 149 U.S. 698, 707, 713–14, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Chae Chan Ping v. United States (the Chinese Exclusion Case), 130 U.S. 581, 609, 9 S.Ct. 623, 32 L.Ed. 1068 (1889); Donald S. Dobkin, “Challenging the Doctrine of Consular Nonreviewability in Immigration Cases,” 24 Georgetown Immigrations L.J. 113, 116–22 (2010), tells courts not to second guess the immigration authorities’ refusal to issue a visa to a foreigner. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543–44, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Kleindienst v. Mandel, 408 U.S. 753, 765–67, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159–60 (D.C.Cir.1999); Burrafato v. U.S. Dept. of State, 523 F.2d 554, 556 (2d Cir.1975). But like most general legal principles it is qualified. As explained in United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at 543, “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien” (emphasis added).
Several cases apply the exception recognized in Knauff to aliens entitled to mandamus because they have a clear right to be in the United States. Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir.2010); Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir.1997); Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir.1988). (We said in Ahmed v. Dep‘t of Homeland Security, 328 F.3d 383, 388 (7th Cir.2003), that we might agree with these cases if the issue arose. See also Iddir v. INS, supra, 301 F.3d at 499–500.) The plaintiff in this case, as in the cases cited, is unlike the typical alien, who has no right to a visa. This alien has a right, conferred by a regulation the validity of which is conceded all around, to be in this country.
Visas are issued by the State Department, however, and it is not a party to this case. It could be made a party, but that is unnecessary. The plaintiff doesn‘t need a visa. The Attorney General is authorized by the parole statute to parole him into the United States,
We do not retract our earlier statement, based on our previous decision, that the immigration statute makes the grant of advance parole discretionary,
Just as a state may give its people more legally enforceable rights than a statute or a constitutional provision requires, e.g., DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir.1992), so may a federal agency, by a regulation within its authority to issue, grant persons subject to its authority more legally enforceable rights than a statute or the Constitution gives them. E.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265–68, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (“regulations with the force and effect of law supplement the bare bones of” a statute (footnotes omitted)); Leslie v. Attorney General of United States, 611 F.3d 171, 178–80 (3d Cir.2010); Fisher v. United States, 402 F.3d 1167, 1177 (Fed.Cir.2005); Johnson Oyster Co. v. Baldridge, 704 F.2d 1060, 1062–63 (9th Cir.1983). “[R]ules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency. The doctrine was first announced in an immigration case in United States ex rel. Accardi v. Shaughnessy, where the Court vacated a deportation order of the Board of Immigration Appeals because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held to be reversible error.” Montilla v. INS, 926 F.2d 162, 166–67 (2d Cir.1991) (citation omitted). As succinctly summarized by Professor Merrill, “even if the applicable statutes confer complete discretion on agency actors, if those actors have the authority to constrain their discretion by promulgating legislative rules, and they choose to do so, they have created law that can serve as the basis for judicial review.” Thomas W. Merrill, “The Accardi Principle,” 74 Geo. Wash. L.Rev. 569, 605 (2006).
In holding that the plaintiff is entitled to mandamus, we do not take a single step back from our previous decision. We held first that the Attorney General has unreviewable authority to revoke advance parole, and second that the plaintiff, not being in custody and not being in the United States or in Guantánamo Bay, Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2258–62, 171 L.Ed.2d 41 (2008), cannot obtain habeas corpus relief. 335 F.3d at 548–52. Our opinion did not address the plaintiff‘s alternative claim to relief under the mandamus statute, though it had not been forfeited, having been preserved both in the district court and, on appeal, in this court.
Although we thus agree with the district judge that the plaintiff is entitled to relief, we don‘t agree with the form of relief that he ordered after our first decision. He ordered the government to allow the plaintiff to return to the United States, and to give him a removal hearing, or hold the hearing abroad if that‘s possible. But the government has never tried to remove the plaintiff, may never try, and for all we know would fare badly if it did try—and in any event a removal proceeding might be enjoined until the plaintiff‘s application for adjustment of status was resolved. Afzal v. Holder, 559 F.3d 677, 679 (7th Cir.2009); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.2004); cf. Benslimane v. Gonzales, 430 F.3d 828, 831–33 (7th Cir.2005); but see Ahmed v. Gonzales, 447 F.3d 433, 437–39 (5th Cir.2006). And a removal proceeding might end favorably to the plaintiff despite the allegation that he is a “security risk,” an allegation that for all we know may evaporate upon even the most superficial inquiry into its basis. In a removal proceeding he would be entitled to examine
We remand the case to the district court for the issuance of a mandamus commanding the Attorney General to take whatever steps are necessary to enable the plaintiff to reenter the United States for the limited purpose of reacquiring the status, with respect to his application for adjustment of status, that he enjoyed when he left the United States pursuant to the grant of advance parole later revoked. An order couched in terms of “take whatever steps are necessary” may seem vague. But the Attorney General has as we have indicated several means of compliance and we can let him decide which to employ to enable the plaintiff to return.
Lest the scope of our decision be exaggerated, we emphasize that the relief we are ordering will not “admit” the plaintiff to the United States in the sense of upgrading his status from that of a nonlawful resident of this country; it will merely enable him to pursue his application for an adjustment of status as long as he is permitted to remain in the country. And we intimate no view on whether he is entitled to such an adjustment. He very well may not be. But he has a right, conferred on him by the same agency of government that denies it, to more consideration than he has received. The Attorney General can grant advance parole or deny it, as he wishes; he can revoke it at will; he can eliminate advance parole altogether, or change the rules governing it. But having made the rules, whatever they are, he must, until he changes them, play by them.
AFFIRMED IN PART, MODIFIED, AND REMANDED.
MANION, Circuit Judge, dissenting.
Today the court remands this case “to the district court for the issuance of a mandamus commanding the Attorney General to take whatever steps are necessary to enable the plaintiff to reenter the United States....” Opinion at 665. This directive mirrors the relief the district court granted Samirah more than seven years ago: “Defendants must issue, or arrange for the issuance of, any and all documents necessary to permit Sabri Samirah to enter the United States on or before March 28, 2003.” In Samirah v. O‘Connell, 335 F.3d 545 (7th Cir.2003) (”Samirah I“), this court interpreted the district court‘s directive as an order reinstating Samirah‘s advance parole. And because the ordering of the reinstatement of advance parole is beyond this court‘s jurisdiction, Samirah I concluded that “[s]ection 1252(a)(2)(B)(ii) bars jurisdiction over the rest of Samirah‘s action.” Samirah, 335 F.3d at 552 (emphasis added). “The rest of Samirah‘s action” means exactly that—the rest of Samirah‘s action—which is why Samirah I “reversed” the district court‘s decision, but did not remand the case to the district court for further proceedings. Id. at 552. Because Samirah I resolved this case in its entirety, I respectfully dissent.
Samirah himself recognized that Samirah I barred all of his claims, stating as much in his petition for rehearing en banc filed with this court and his petition for certiorari to the Supreme Court. This court denied Samirah‘s petition for rehearing. And the Supreme Court denied Samirah certiorari. See Samirah v. Ash-croft, 541 U.S. 1085, 124 S.Ct. 2811, 159 L.Ed.2d 246 (2004). Once this court and the Supreme Court denied Samirah‘s petitions for review, Samirah I became final.1
Nonetheless, the court today concludes that Samirah I is not dispositive because “the issues presented to us have changed,” opinion at 654, and “the relief sought in the present appeal (mandamus) is different from that sought unsuccessfully in the prior one (habeas corpus).” Opinion at 654. But not only is the relief sought the same, see supra at 27 (and Samirah did seek relief through both habeas corpus and mandamus in Samirah I), “[t]he issues presented to us” also have not changed. In both Samirah I and in this appeal, Samirah argued the same statutory and constitutional theories for relief, claiming jurisdiction then, as well as now, based on, among other grounds, the mandamus statute. The only issue that is new is the one the court has presented based on
There is a good reason not to rely on
The Board of Immigration Appeals (“BIA“) explained this distinction in its en banc decision in Matter of G-A-C-, 22 I. & N. Dec. 83 (BIA 1998) (en banc): “The term ‘advance parole’ is something of a misnomer, and this phrasing may cause some confusion. An alien in the United States can request an advance authorization of parole. If the request is approved, the alien is not at that point ‘paroled.‘” Id. at 88 n. 3. The BIA then stated that “[t]his is a distinction of some significance,” id., citing Barney v. Rogers, 83 F.3d 318 (9th Cir. 1996). In Barney, the Ninth Circuit explained that “[a]lthough Petitioner received advance parole—a promise of parole upon her return—while she was on illegal overstay, she was not ‘paroled’ until she returned to the United States from Nigeria.” Id. at 321. Thus, the court explained, “‘at the time of parole,’ as distinguished from the time of advance parole, the petitioner was an excludable alien like all aliens who seek admission to the United States at designated ports of entry.” Id. The Barney court then concluded: “In other words, the advance parole gave Petitioner the right to return for the purpose of completing her Adjustment Application; it did not ‘freeze’ her status as an illegal overstay.” Id. (In this case, though, Samirah‘s advance parole was revoked, so there was no right to return.) Similarly, the Second Circuit has distinguished advance parole from parole, stating: “‘Advance parole’ is the determina-
At oral argument, Samirah‘s attorney stated that the government had always maintained that “Samirah never had parole” and that “advance parole isn‘t actually parole.” Significantly, Samirah‘s attorney then added: “And we agree with that.” In fact, in his petition for rehearing to this court in Samirah I, Samirah stated that the Board‘s interpretation of advance parole, as not itself a “parole,” receives Chevron deference. Petition for Rehearing at 4, n. 3. Samirah then added: “In any event, the revocation of advance parole authorization is not the revocation of parole itself.” Id.
Because advance parole is not parole, I do not believe
Instead, though, the court‘s mandate to the district court requires “commanding the Attorney General to take whatever steps are necessary to enable the plaintiff to reenter the United States....” Opinion at 665. This directive is not just indefinite, but beyond this court‘s power. The “several means of compliance” the court suggests as options are: (1) issue Samirah another I-512L form, Opinion at 656; (2) issue Samirah a visa, Opinion at 663; (3)
RELATIONAL, LLC, Plaintiff-Appellee, v. Robert A. HODGES, Defendant-Appellant.
No. 09-3625.
United States Court of Appeals, Seventh Circuit.
Argued April 7, 2010.
Decided Dec. 8, 2010.