Wednesday, December 8, 2010

Advance Parole Cannot be Revoked while Alien is Abroad

Samirah v. Holder No. 08-1889

United Courts of Appeals for the Seventh Circuit

2010 U.S. App. LEXIS 24684 (December 3, 2010)

As one can never do justice to one of Judge Posner’s written opinions, I begin this case summary by quoting his own summary of the decision. He writes:

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.

Factually, the case involved Mr. Sabri Samirah, a Jordanian a student visa overstay. Mr. Samirah completed his Ph.D., married, and has three U.S. citizen children. He has never been in removal or deportation proceedings. He unsuccessfully applied for adjustment of status twice. He applied for a third time. While his third application was pending he applied for, and was granted, advance parole (Form I-512L) to visit his ailing mother in Jordan. However, when he tried to return to the United States, travelling with the unexpired I-512L, the immigration service told him that his parole was revoked and that he was therefore inadmissible because he didn’t have an entry document.

The Seventh Circuit found the denial of entry to be legally unsound on various grounds. Form I-512L is a substitute for a visa because it was a promise to let Mr. Samirah back into the United States and resume his status as an adjustment applicant. Second, parole can be revoked "upon accomplishment of the purpose for which parole was authorized or when…neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States." Since Mr. Samirah was not yet back in the United States, terminating his parole before his re-entry was premature. The Circuit acknowledged that the government could deny re-entry to someone who is inadmissible but no clear indication of inadmissibility was raised in the present case. Moreover, since someone returning on advance parole is not an arriving alien, the inadmissibility determination must be made by an immigration judge not an immigration officer at a checkpoint or port of entry.

In conclusion, the court remanded the case to the district court for the issuance of a mandamus commanding the Attorney General to,

…take whatever steps 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.

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