“The law can’t be that ridiculous.”

Sunday, November 14th, 2010
By: Jonathan MontagJ.D.

These were the words of Judge Richard A. Posner of the Seventh Circuit Court of Appeals in the case of Sabri Samirah v. Eric Holder during oral argument  in Chicago on September 8, 2010. Having gleaned my understanding of the case from the oral argument, these are apparently the facts of the case.

Mr. Samirah applied for adjustment of status in the United States. Adjustment of status is when an alien changes to permanent residence in the United States rather than immigrating from a U.S. Consulate abroad. He then applied for advance parole to visit his ailing mother whom he had not seen for several years, which was granted. He traveled to visit his mother in Jordan. His route back to the United States took him through Shannon, Ireland, which has a U.S. CBP pre-inspection station. At pre-inspection, his advance parole was revoked and he was denied admission to the United States. He appealed the denial and the Seventh Circuit ruled that it lacked jurisdiction to consider the discretionary revocation of the advance parole based on a jurisdiction stripping statute which barred judicial review of the discretionary determinations of the Attorney General and Department of Homeland Security, 8 USC § 1252(a)(2)(B)(ii). Subsequently, the Supreme Court, in Kucana v. Holder, held that the jurisdiction-stripping statute did not apply to regulations where a decision is discretionary; only to statutes which give the agencies discretionary authority. The case then made its way back to the Court of Appeals in Chicago.

The regulation in Samirah stated that when an advance parole is revoked, the alien is returned to his previous status. To Judge Posner this meant the alien should be allowed to return to the United States to pursue his adjustment of status application. To the government, which maintains that having an adjustment of status application is not a “status,” the alien cannot come back. To this proposition Judge Posner said, “The law can’t be that ridiculous.”

The Department of Homeland Security has been consistent in its assertion that having an adjustment of status application pending is not a “status,” and has maintained that it reserves the right to arrest an alien who has a valid adjustment of status application pending for no other reason than that he or she is out of status because all the alien has is an adjustment of status application. In many cases, very respectable people, including internationally renowned scientists and high-echelon business executives who have had visas, do not renew their visas in favor of applying for adjustment of status, which allows them to work and travel (with advance parole) while the applications are pending.

The government’s attorney told the judges on the panel in Samirah that Samirah could still immigrate to the United States through a U.S. Consulate so all was not lost for him. He just lost the opportunity to adjust status in the United States. This did not placate the judges who were concerned that Mr. Samirah would have no opportunity to take his case to a court, either an immigration court or a federal court, if his application for permanent residence was denied at a Consulate. A lot of the discussion centered around the loss of any administrative or judicial review of the Consulate’s decision.

The case is very reminiscent of a case I wrote about in the Ninth Circuit, Hassan v. Chertoff. In that case, an alien was traveling with advance parole with an adjustment of status pending. While he was abroad, his adjustment of status application was denied. When he got to the Port of Entry, his parole was revoked and he was denied entry into the United States. The parole, the government argued, was granted because his adjustment of status application was pending. When the adjustment application was denied, the advance parole lacked any purpose, and thus it was revoked. The Ninth Circuit accepted this logic, Mr. Hassan could not come back to the United States and resume his efforts to adjust status. Had he been in the United States he could have fought his case in the immigration court and the Board of Immigration Appeals. He could even have brought legal and constitutional issues to the Court of Appeals.

The cases are different, but they are also very much the same. In Samirah, parole was revoked and then the adjustment was deemed abandoned. In Hassan, the adjustment was denied, and then the parole was deemed unnecessary. In both cases, the aliens lost their right to pursue their adjustment applications through the administrative appeal structure of the immigration courts, BIA, and circuit courts. Also similarly, the Department of Homeland Security raised security arguments, but through slights of procedural hand, never had to present their cases of security violations and never had to endure the aliens presenting evidence that the allegations were not true. The immigration laws provide many, many avenues to pursue and remove suspected terrorists. DHS did not have to invoke any of them and instead manipulated the advance parole process to keep aliens they deemed undesirable out of the country. Both of these cases are examples of the War Against Islam about which I have written. In the Samirah case, Judge Posner was particularly distressed that these allegations of being a security risk could never be defended against without any administrative or judicial review. That was part of what made the law so ridiculous. Unfortunately, the Ninth Circuit did not see it that way in Hassan. In war I guess ridiculous things happen. Posted November 14, 2010.



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