Hassan v. Chertoff ( 2008 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    NADEEM HASSAN,                            
    Plaintiff-Appellant,
    v.                              No. 06-17252
    MICHAEL CHERTOFF, Secretary of                     D.C. No.
    Department of Homeland Security;              CV-04-02251-PHX-
    AL GALLMANN, Acting District                         FJM
    Director, Phoenix District Office,
    OPINION
    Citizenship and Immigration
    Service,
    Defendants-Appellees.
    
    Appeal from the United States District Court
    for the District of Arizona
    Frederick J. Martone, District Judge, Presiding
    Argued and Submitted
    June 13, 2008—San Francisco, California
    Filed September 11, 2008
    Before: Mary M. Schroeder, John M. Walker, Jr.,* and
    N. Randy Smith, Circuit Judges.
    Per Curiam Opinion
    *The Honorable John M. Walker, Jr., Senior U.S. Circuit Judge for the
    Second Circuit, sitting by designation.
    12719
    HASSAN v. CHERTOFF              12721
    COUNSEL
    Eric G. Bjotvedt, Esq., Phoenix, Arizona, for plaintiff/
    appellant, Nadeem Hassan.
    Thomas H. Dupree, Jr., Esq. USDOJ, Washington, D.C., for
    defendants/appellees, Michael Chertoff, Secretary of Home-
    land Security et al.
    12722                 HASSAN v. CHERTOFF
    OPINION
    PER CURIAM:
    Nadeem Hassan, a citizen of Pakistan, appeals the district
    court’s dismissal of his complaint seeking mandamus relief
    and challenging the government’s denial of his application for
    adjustment of status and cancellation of his permission to
    return to this country. We lack jurisdiction to review the gov-
    ernment’s actions and affirm the district court’s dismissal. See
    
    8 U.S.C. § 1252
    (a)(2)(B)(i)-(ii).
    Background
    In January 2002, while physically present in the United
    States, Hassan applied for adjustment of status to lawful per-
    manent resident pursuant to section 245 of the Immigration
    and Nationality Act (“INA”), 
    8 U.S.C. § 1255
    (a). In October
    2004, the government had not yet acted on his application, so
    he filed this mandamus action in the United States District
    Court to compel the government to act on the application. In
    2005, the government questioned him about possible ties to a
    group the government suspected of having links to terrorists.
    While his adjustment application was still pending, Hassan
    traveled outside the United States to Saudi Arabia. He
    received a travel document from the government, Form I-512,
    commonly referred to as an “advance parole.” It granted him
    permission to return to the United States, so long as his appli-
    cation for adjustment remained pending. While Hassan was
    abroad, the government denied his adjustment application and
    revoked the advance parole. When he attempted to return to
    the United States, he was denied admission, placed in expe-
    dited removal proceedings, and removed. He then amended
    his complaint in this action to challenge the denial of status
    adjustment and revocation of advance parole.
    The district court held that under the REAL ID Act of
    2005, 
    8 U.S.C. § 1252
    (a)(2)(B), both the denial of the adjust-
    HASSAN v. CHERTOFF                   12723
    ment of status and the revocation of the advance parole were
    discretionary decisions that the court lacked jurisdiction to
    review. The statute the court relied upon with respect to
    adjustment of status provides that “no court shall have juris-
    diction to review any judgment regarding the granting of
    relief under section . . . 1255 of this title . . . .” 
    8 U.S.C. § 1252
    (a)(2)(B)(i). The statute the district court relied on to
    determine that it lacked jurisdiction to review the revocation
    of advance parole is 
    8 U.S.C. § 1252
    (a)(2)(B)(ii), which pro-
    vides that “no court shall have jurisdiction to review any other
    decision . . . of the Attorney General or the Secretary of
    Homeland Security the authority for which is specified under
    this subchapter to be in the discretion of the Attorney General
    or the Secretary of Homeland Security . . . .”
    Analysis
    [1] Hassan argued to the district court that before the gov-
    ernment denied his application for adjustment of status, it
    should, under an applicable regulation, have given him an
    opportunity to respond to the reasons for the denial. See 
    8 C.F.R. § 103.2
    (b)(16)(i). But, as the district court noted, judi-
    cial review of the denial of an adjustment of status application
    — a decision governed by 
    8 U.S.C. § 1255
     — is expressly
    precluded by 
    8 U.S.C. § 1252
    (a)(2)(B)(i). Furthermore,
    § 1252(a)(2)(B)(ii) precludes judicial review of “any other
    [discretionary] decision or action of the Attorney General or
    the Secretary of Homeland Security.” Because the govern-
    ment denied Hassan’s application for adjustment, in part, as
    a matter of discretion, the district court lacked jurisdiction to
    review that claim. Cf. Hosseini v. Gonzales, 
    464 F.3d 1018
    ,
    1021 (9th Cir. 2006) (“We lack jurisdiction to review the
    BIA’s denial of Hosseini’s adjustment of status claim because
    the BIA alternatively denied relief as a matter of discretion.”).
    [2] To the extent that Hassan argues that he is not appealing
    a discretionary decision to deny his application but is raising
    a constitutional claim or question of law as to whether the
    12724                 HASSAN v. CHERTOFF
    government violated their own regulation and Hassan’s due
    process rights, we reject that argument. Although 
    8 U.S.C. § 1252
    (a)(2)(D) preserves jurisdiction over “constitutional
    claims or questions of law raised upon a petition for review
    filed with an appropriate court of appeals in accordance with
    this section,” that provision is inapplicable here. Hassan’s
    challenge to the denial of adjustment was not raised upon a
    petition for review filed with this court; his case comes to us
    on direct appeal from the district court. We therefore conclude
    that the district court did not have jurisdiction to entertain
    Hassan’s challenge to the denial of adjustment of status.
    The only remaining question pertains to the revocation of
    Hassan’s advance parole. The district court ruled that it lacked
    jurisdiction to consider the issue because the revocation of
    advance parole, like the grant of advance parole, is discretion-
    ary. See 
    8 U.S.C. § 1182
    (d)(5)(A) (stating that the Attorney
    General may “in his discretion parole into the United States
    . . . any alien”); see also Samirah v. O’Connell, 
    335 F.3d 545
    ,
    548 (7th Cir. 2003) (“The Attorney General . . . has the dis-
    cretion to revoke advance parole after it has been granted.”).
    [3] On appeal, Hassan argues that the district court had
    jurisdiction to review the revocation. He claims that the gov-
    ernment lacked any discretion to revoke his advance parole
    because no statute or regulation expressly authorizes revoca-
    tion. We disagree. The statutory and regulatory provisions
    governing the grant of parole provide for the revocation of
    parole when it no longer serves its purpose. See 
    8 U.S.C. § 1182
    (d)(5)(A) (“[W]hen the purpose of such parole shall, in
    the opinion, of the Attorney General, have been served 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 appli-
    cant for admission to the United States.”); 
    8 C.F.R. § 212.5
    (e)(2)(i) (providing that DHS “shall” terminate parole
    “upon accomplishment of the purpose for which parole was
    authorized or when in the opinion of [certain enumerated
    HASSAN v. CHERTOFF                  12725
    DHS officials], neither humanitarian reasons nor public bene-
    fit warrants the continued presence of the alien in the United
    States”); see also Samirah, 
    335 F.3d at 548
     (interpreting these
    provisions as granting DHS authority to revoke advance
    parole).
    [4] DHS complied with these regulations when it revoked
    Hassan’s advance parole. It is undisputed that Hassan was
    granted advance parole solely to allow him to return to this
    country while his application for status adjustment was pend-
    ing. Thus, once Hassan’s application for adjustment of status
    was denied, he was no longer eligible for advance parole. See
    U.S. Citizenship & Immigration Servs., Dep’t of Homeland
    Sec., Adjudicator’s Field Manual § 54.3 (2008) (providing
    that an applicant for adjustment of status is eligible for
    advance parole only if his application has not yet been
    decided). The revocation inevitably followed from DHS’s dis-
    cretionary decision to deny the adjustment of status. Under
    these circumstances, DHS was required by its own regulation
    to terminate the advance parole, the parole having served its
    purpose. See 
    8 C.F.R. § 212.5
    (e)(2)(i).
    The district court properly rejected Hassan’s argument that
    it had jurisdiction to review the revocation of advance parole
    as an ultra vires. The revocation was lawfully authorized.
    For the foregoing reasons, we lack jurisdiction to review
    the government actions challenged by Hassan. We therefore
    affirm the district court’s dismissal of his case.
    AFFIRMED.
    

Document Info

Docket Number: 06-17252

Filed Date: 9/10/2008

Precedential Status: Precedential

Modified Date: 10/14/2015