Scheerer v. U.S Att'y Gen'l (11th Cir. 1/15/08)
Regarding adjustment of status by arriving aliens.
1. Upheld regulations at 1245.1(c)(8), which say that only USCIS has authority to grant adjustment, not EOIR. Found statute ambiguous as to whether Congress intended to vest authority with the DOJ or DHS - interpretation doesn't make people ineligible, it just governs jurisdiction.
2. No retroactivity problem here, because it only governs jurisdiction (who decides), not eligibility.
3. No due process problem because no liberty interest in discretionary relief like AOS or reopening.
4. BIA's denial of reopening did not violate terms of the remand, since the Court didn't order the Board to reopen, it just remanded for proceedings consistent with its opinion.
5. Petitioner and amicus argued that BIA abused its discretion in not reopening and continuing the case. Court said that related cases like Velarde didn't apply, because in those cases the EOIR would eventually decide on something (whereas here, it would not). It would not make sense for the BIA to reopen a case when it would never adjudicate the issue.
6. In a fn, noted Govt's willingness to resolve the case by other means.
In view of the highly unusual circumstances of this case, we note that there may be avenues of relief still available to Scheerer. The government’s brief emphasizes DHS’s readiness to “take steps that would permit Scheerer to apply for adjustment of status within the applicable regulatory framework.” According to the government, one such option would be for Scheerer to file an adjustment application with USCIS accompanied by a request that the applicable admission bar not be held against him for purposes of his seeking adjustment of status. Alternatively, the government suggests that Scheerer could request a grant of advance parole into the United States following his release from prison in Germany in order to pursue adjustment of status at that time. The government indicates that DHS is willing to entertain either of these proposals.
[Analysis: but isn't the CtApp requiring this unusual Govt concession to do a lot of work, where the Govt is allegedly required to remove someone within 90 days of a removal order (8 USC 1231(a)), and where there appears to be no requirement that USCIS adjudicate before removal? And apart from constitutional guarantees, doesn't an alien have a statutory-based right to have a decision on their applications?
Of course, the oddity of this case is that it involves reopening, rather than a continuance or mtn for abeyance. It seems like those fact patterns would be much stronger for this argument. - CR]
Read opinion here:
