Jiang v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIA-JIAN JIANG, 
Petitioner, No. 03-71837
v.
 Agency No.
A72-984-225
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued January 13, 2005
Submitted June 9, 2005
San Francisco, California
Filed September 23, 2005
Before: Myron H. Bright,** A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General. FED. R. APP. P. 43(c)(2).
**The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
13665
13668 JIANG v. GONZALES
COUNSEL
Marc Van Der Hout, Zachary Nightingale, Stacy Tolchin,
Van Der Hout, Brigagliano & Nightingale, LLP, San Fran-
cisco, California, for petitioner Jiang.
Peter K. Keisler, Assistant Attorney General, Mary Jane Can-
daux, Senior Litigation Counsel, Margaret J. Perry, Senior
Litigation Counsel, U.S. Department of Justice, Washington,
D.C., for respondent Alberto R. Gonzales.
OPINION
CALLAHAN, Circuit Judge:
Petitioner Jia-Jian Jiang seeks review of the Board of
Immigration Appeals’s (“BIA”) summary affirmance of the
Immigration Judge’s (“IJ”) decision to deny his request to
JIANG v. GONZALES 13669
renew during removal proceedings a previously denied appli-
cation for adjustment of status under the Chinese Student Pro-
tection Act of 1992 (“CSPA”). The IJ denied Jiang’s request
on the ground that he did not meet the eligibility requirements
to renew his application under 8 C.F.R. § 1245.2, and there-
fore, she lacked jurisdiction to grant the request. Jiang argues
alternatively that (1) he did meet eligibility requirements
under 8 C.F.R. § 1245.2; (2) the requirements violate the
Immigration and Nationality Act (“INA”); (3) the CSPA dis-
penses with the eligibility requirements under 8 C.F.R.
§ 1245.2(a)(1); (4) the BIA’s summary affirmance process
violated his statutory right to an administrative appeal; and,
(5) the BIA’s summary affirmance in this case was improper
because he raised non-frivolous novel legal issues. We deny
Jiang’s petition for review.
I
Jiang is an adult male and native of the People’s Republic
of China (“PRC”). On November 10, 1989, Jiang entered the
United States at Miami on an international flight en route
from Panama to China. Jiang had been in Panama on an
extended vacation visiting relatives and was returning to
China on a flight that included stops and plane changes in
Miami, San Francisco, and Hong Kong. Upon boarding the
plane in Panama, Jiang’s travel documents were retained by
Pan American Airlines personnel, who informed him that the
documents would be returned at a later time.
Jiang did not have a valid visa allowing him entrance to the
United States; however, he was permitted to stop in Miami
and San Francisco under the transit-without-visa (“TWOV”)
privilege pursuant to 8 C.F.R. §§ 1212.1(f) and 1214.2(c)(1).1
1
Aliens who are passing through the United States en route to another
country are aliens in “transit-without-visa.” 8 U.S.C. § 1101(a)(5)(C). An
alien in TWOV arrives at a port of entry under special agreements with
air carriers and transportation lines, which guarantee the alien’s immediate
and continuous passage to a foreign destination. See United States v.
Kavazanjian, 623 F.2d 730, 737-38 (1st Cir. 1980) (discussing TWOV).
13670 JIANG v. GONZALES
While in San Francisco, Jiang began strolling around the air-
port and eventually discovered that he had wandered beyond
the ticketing gates and into the ground transportation area.
Based on his prior experience with domestic travel in China,
Jiang did not believe he could reenter the airport without a
passport and travel documents. Therefore, he called his
brother, a lawful permanent resident living in San Francisco,
whereupon Jiang’s brother picked him up and took him home.
Jiang has resided with his brother in the United States ever
since.
In 1991, Jiang applied for protection under Executive Order
(“E.O.”) 12711. E.O. 12711 was issued on April 11, 1990, in
response to the massacre on Tiananmen Square. The E.O. per-
mitted temporary deferral of enforced departure (“DED”) of
all PRC nationals who were in the United States on or after
June 6, 1989, until January 1, 1994.2 In furtherance of the pol-
icy concerns underlying E.O. 12711, Congress enacted the
CSPA, which permanently altered the standard adjustment of
status procedures for PRC nationals who met the statute’s
requirements. Chen v. Ashcroft, 378 F.3d 1081, 1085 (9th Cir.
2004).
Jiang’s application for DED status under E.O. 12711 was
approved on December 2, 1993. That same day, he formally
requested permission to travel to China to visit his mother,
who was ill. The Immigration and Naturalization Service
2
Additionally, the E.O. directed the Attorney General and the Secretary
of State to waive the requirements of a valid passport and to provide nec-
essary documents, both within the United States and at the U.S. consulates
overseas, to facilitate travel and “reentry to the Unites States in the same
status such PRC nationals had upon departure.” E.O. 12711(2). Although
the E.O. deferred any actions by the Immigration and Naturalization Ser-
vice to initiate proceedings against the alien for the duration of the Order,
it did not change a beneficiary’s status. See Lin v. Meissner, 855 F.Supp.
4, 7 (D.D.C. 1994) (noting that “the Order did not operate to grant legal
immigration status to PRC nationals who did not have such status in the
first place”).
JIANG v. GONZALES 13671
(“INS”)3 granted permission and issued him a Form I-512,
Authorization for Parole of an Alien into the United States
(“advance parole”).
Jiang traveled to China on December 16, 1993, and
returned to the United States on December 28, 1993. On Janu-
ary 1, 1994, Jiang’s DED status expired pursuant to the terms
of E.O. 12711. Three days later, he filed for adjustment of sta-
tus under the CSPA. Prior to ruling on Jiang’s adjustment
application, the INS invited Jiang’s attorney to apply for a
waiver of inadmissibility. Counsel, however, declined to do
so, arguing instead that Jiang’s TWOV entry was not fraudu-
lent. The INS disagreed and concluded that Jiang’s TWOV
entry in 1989 was fraudulent because he had no intention of
traveling on to China at the time. On August 7, 1997, the INS
denied Jiang’s adjustment application and commenced
removal proceedings, charging that he was removable under
INA §§ 212(a)(6)(C)(i) (admission through fraud or misrepre-
sentation) and (7)(A)(i)(I) (admission without valid entry doc-
ument).
During removal proceedings, Jiang filed a motion to renew
his application for adjustment of status under the CSPA. In a
nine-page opinion, the IJ denied Jiang’s motion to renew on
the ground that she lacked jurisdiction to entertain the matter
because Jiang was an “arriving alien.” Accordingly, she
ordered Jiang removed. Jiang appealed and the BIA summa-
rily affirmed. Jiang now petitions this court for review of the
BIA’s summary affirmance.
3
As of March 1, 2003, the INS ceased to exist and its enforcement func-
tions were transferred to the Bureau of Immigration and Customs Enforce-
ment within the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296. For ease of reference, how-
ever, we refer to the agency as the INS since that was its name during the
course of proceedings in this case.
13672 JIANG v. GONZALES
II
We review de novo purely legal questions, including proce-
dural challenges arising from violations of regulations, stat-
utes or the Constitution. DeMartinez v. Ashcroft, 374 F.3d
759, 761 (9th Cir. 2004); Simeonov v. Ashcroft, 371 F.3d 532,
535 (9th Cir. 2004).
[1] The INS denied Jiang’s initial application for adjust-
ment of status on the merits. No appeal lies from the INS’s
denial of an application for adjustment of status, but the appli-
cant, if not an arriving alien, retains the right to renew his or
her application during removal proceedings. 8 C.F.R.
§ 1245.2(a)(5). An arriving alien is not eligible to renew a
previously denied application for adjustment of status during
removal proceedings. Id. § 1245.2(a)(1). The term “arriving
alien” means an applicant for admission coming or attempting
to come into the United States at a port of entry, or an alien
seeking transit through the United States at a port of entry. An
arriving alien remains such even if paroled pursuant to section
212(d)(5) of the Immigration and Nationality Act (granting
parole for urgent humanitarian reasons or significant public
benefit). 8 C.F.R. § 1001.1(q). Thus, as an arriving alien,
Jiang was not eligible to renew his application for adjustment
of status during removal proceedings.
[2] We join the First and District of Columbia Circuits in
rejecting Jiang’s argument that he was not an arriving alien
because he was inspected and admitted when he entered the
United States on “transit-without-visa” status in 1989. See Air
Transp. Ass’n of Am. v. Reno, 80 F.3d 477, 478 (D.C. Cir.
1996) (holding that TWOV passengers may board planes
bound for the U.S. without U.S. visas, so long as they are
merely connecting to another flight that will take them on to
another country); see also United States v. Kavazanjian, 623
F.2d at 736-37 (determining that an alien who steps off a
plane and is in the airport waiting for a connecting flight in
TWOV has not made an “entry” into the U.S. because he is
JIANG v. GONZALES 13673
still within the custody of the carrier or INS and is therefore
not deemed to be free from official restraint); accord Aero-
lineas Argentinas v. United States, 77 F.3d 1564, 1674-76
(Fed. Cir. 1996).
[3] We also reject Jiang’s alternative argument, that he was
not an arriving alien because his “deferred enforced depar-
ture” status was a special form of lawful status conferred by
E.O. 12711. Section (3)(b) of E.O. 12711 directs the Secretary
of State and the Attorney General to provide “maintenance of
lawful status for purposes of adjustment of status or change
of non-immigrant status for such PRC nationals who were in
lawful status at any time on or after June 5, 1989 . . . .” E.O.
12711(3)(b) (emphasis added). A plain reading of this lan-
guage requires maintenance of lawful status for PRC nationals
who already had lawful status, but does not confer lawful sta-
tus in the first instance, as Jiang suggests. Lin, 855 F.Supp. 4,
7. Jiang offers no authority to support his argument, or to
refute the legal opinion of the INS’s General Counsel, who
also determined that E.O. 12711 does not confer lawful status
in the first instance.4
[4] Similarly, we reject Jiang’s claim that 8 C.F.R.
§ 1245.2(a) (the regulation prohibiting arriving aliens from
renewing an adjustment application during removal proceed-
ings) is invalid because it violates INA § 245(a). Section
245(a) provides that “[t]he status of an alien who was
inspected and admitted or paroled . . . may be adjusted by the
Attorney General, in his discretion and under such regulations
as he may prescribe, to that of an alien lawfully admitted for
permanent residence . . . .” INA § 245(a), 8 U.S.C. § 1255(a)
(emphasis added). The regulation that Jiang challenges, 8
C.F.R. § 1425.2(a), states that arriving aliens may not renew
a previously denied adjustment application during removal
4
See 70 Interpreter Releases 1095 (August 23, 1993) (explaining that
E.O. 12711’s reference to travel was not intended to provide legitimate
immigration status to those who did not already have that status).
13674 JIANG v. GONZALES
proceedings — this is not inconsistent with the provisions of
INA § 245(a).5 Moreover, where, as here, Congress has
expressly authorized an agency to make rules, the “reviewing
court must find the agency’s construction permissible unless
it is arbitrary, capricious, or manifestly contrary to the stat-
ute.” Tovar v. United States Postal Serv., 3 F.3d 1271, 1276
(9th Cir. 1993). Jiang has not made the showing required by
Tovar.
[5] Jiang’s argument that the CSPA dispenses with the
renewal requirements under 8 C.F.R. § 1425.2 is equally
unavailing. The CSPA affects only eligibility for adjustment
of status and does not purport to create application procedures
5
8 C.F.R. § 1245.2(a) states:
(a) General — (1) Jurisdiction. An alien who believes he or she
meets the eligibility requirements of section 245 of the Act or
section 1 of the Act of November 2, 1966, and § 1245.1 shall
apply to the director having jurisdiction over his or her place of
residence unless otherwise instructed in 8 CFR part 1245, or by
the instruction on the application form. After an alien, other than
an arriving alien, is in deportation or removal proceedings, his or
her application for adjustment of status under section 245 of the
Act or section 1 of the Act of November 2, 1966 shall be made
and considered only in those proceedings. An arriving alien,
other than an alien in removal proceedings, who believes he or
she meets the eligibility requirements of section 245 of the Act
or section 1 of the Act of November 2, 1966, and § 1245.1 shall
apply to the director having jurisdiction over his or her place of
arrival. An adjustment application by an alien paroled under sec-
tion 212(d)(5) of the Act, which has been denied by the director,
may be renewed in removal proceedings under 8 CFR part 1240
only if:
(i) The denied application must have been properly filed subse-
quent to the applicant’s earlier inspection and admission to the
United States; and
(ii) The applicant’s later absence from and return to the United
States was under the terms of an advance parole authorization on
Form I-512 granted to permit the applicant’s absence and return
to pursue the previously filed adjustment application.
JIANG v. GONZALES 13675
independent of those created by section 245 of the INA.6 In
fact, the CSPA expressly refers to applications “for adjust-
ment of status under section 245 of the [INA].” Chinese Stu-
dent Protection Act of 1992 § 2(a), Pub. L. No. 102-404. This
shows Congress’s intent that applications for adjustment of
status under the CSPA be subject to the same procedures as
all other adjustment-of-status applications.
[6] Jiang also argues the summary affirmance procedures
that mandate boilerplate language merely affirming the result
of the IJ’s decision effectively deprive him of his statutory
right to an administrative appeal because they preclude a
statement of reasoned decision by the BIA. We rejected this
argument in Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.
2003). There, the petitioners argued that the streamlining pro-
cedures violated their due process rights under the Fifth
Amendment. Id. at 848. Although Jiang argues that the proce-
dures violate his statutory right to an administrative appeal
under the INA, the substance of his arguments are nearly
identical to those made in Carriche, in which we held that the
petitioners received all of the administrative appeals to which
they were entitled by statute and that the Constitution does not
require that the BIA do more.7 Id. at 850. We find our reason-
6
In particular, Section 2(a): dispenses with the eligibility requirements
under 8 U.S.C. § 1182(a)(5)(A) (labor certification) and (7)(A) (posses-
sion of valid travel documents); deems approved under INA § 204(a) an
alien’s petition for classification as an employment-based immigrant under
INA § 203; permits consideration of the alien’s application for adjustment
without regard to whether an immigrant visa number is immediately avail-
able; permits the Attorney General to waive certain grounds for inadmissi-
bility listed under INA § 212(a), other than controlled substance
traffickers and security-related grounds; suspends INA § 202(a)(2)
(numeric limitations on the number of visas that can be issued); and deems
inapplicable INA § 245(c) (alien crewman, aliens admitted TWOV, and
aliens in unlawful non-immigrant status ineligible for adjustment of sta-
tus).
7
In Carriche, we noted that petitioners’ misgivings “center around the
lack of transparency in the process, the increasing frequency in which the
process is invoked, the speed with which appeals are decided, and a belief
that the BIA may be abdicating its statutorily-mandated role of appellate
review.” 350 F.3d at 850. These are the same concerns raised by Jiang.
13676 JIANG v. GONZALES
ing in Carriche to be controlling here, and reject Jiang’s chal-
lenge to the boilerplate language of the BIA’s summary
affirmance.
[7] Finally, Jiang has not shown that the BIA violated its
own streamlining regulations (specifically 8 C.F.R.
§ 1003.1(e)(4)(i) (formerly 8 C.F.R. § 1003.1(7)(ii))) by issu-
ing a summary affirmance in this case. The streamlining regu-
lations authorized a single BIA member to affirm the IJ’s
decision without opinion if the board member determines that
the result was correct; that any errors were harmless or non-
material; and that (A) the issue on appeal is squarely con-
trolled by existing Board or federal court precedent and does
not involve the application of precedent to a novel fact situa-
tion; or (B) the factual and legal questions raised on appeal
are so insubstantial that three-member review is not war-
ranted. Chen, 378 F.3d at 1086. Jiang’s substantive arguments
are not substantial enough to warrant three-member review.
The petition for review is DENIED.