Ocholi Iredia v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 21-1379
____________
OCHOLI OCHALA IREDIA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A078-193-552)
Immigration Judge: Steven A. Morley
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 9, 2021
Before: SHWARTZ, PORTER and FISHER, Circuit Judges.
(Filed: February 11, 2022)
Carlos R. Munoz
Sachs Law Group
1518 Walnut Street, Suite 610
Philadelphia, PA 19102
Counsel for Petitioner
Brian Boynton, Acting Assistant Attorney General
Anthony P. Nicastro, Assistant Director
Kristen H. Blosser
Jonathan A. Robbins
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
An Immigration Judge (IJ) entered a final order of
removal holding that Ocholi Ochala Iredia, a citizen of Nigeria,
is inadmissible to the United States. The Board of Immigration
Appeals (BIA) dismissed his appeal. Iredia petitions for review
2
of the BIA’s decision. We will deny the petition. 1
Iredia was admitted to the United States in 1997 on a
tourist visa, which he overstayed. Later, he was granted
advance parole, left the United States, returned in November
2006, and was paroled into the country. The parole was valid
until November 2007. Iredia overstayed the parole and, in
2011, the Department of Homeland Security served him with a
Notice to Appear charging that he was inadmissible “as an
immigrant who, at the time of application for admission, is not
in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry
document. . . .” AR 536 (citing 8 U.S.C. § 1182(a)(7)(A)(i)(I)).
After a hearing, the IJ held that Iredia was inadmissible and
ordered him removed.
Iredia raises one argument: that he should have been
charged as removable, not inadmissible. He contends that
when he was served with the Notice to Appear, he already had
been admitted to the United States on a tourist visa, and the
visa’s subsequent expiration did not affect the fact of his
admission. Iredia argues that advance parole does not change
an individual’s immigration status, so he remained an admitted
alien while he obtained advance parole, left the country,
returned, and was paroled back in. Therefore, he says, he
1
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)
(appeals from decisions of IJs). We have jurisdiction under 8
U.S.C. § 1252(a) (judicial review of final orders of removal).
Where the BIA issues a reasoned decision, not a summary
affirmance, we review its decision and not the IJ’s. Chavarria
v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Iredia raises
only a legal argument, and “we review the BIA’s legal
conclusions de novo.” Borges v. Gonzales, 402 F.3d 398, 404
(3d Cir. 2005).
3
should not have been charged as inadmissible under 8 U.S.C.
§ 1182(a)(7). He admits that he may have been removable
under 8 U.S.C. § 1227, 2 but asserts that the charging error
should have led to the termination of his removal proceedings.
The Government argues that Iredia did not
administratively exhaust this argument. A petitioner meets the
exhaustion requirement “so long as [he] makes some effort,
however insufficient, to place the [BIA] on notice of a
straightforward issue being raised on appeal.” Nkomo v. Att’y
Gen., 986 F.3d 268, 272 (3d Cir. 2021) (quoting Yan v.
Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)). Iredia made a
variety of arguments in his brief to the BIA, but we are unable
to identify where he made the argument he now raises before
us. The BIA, however, apparently perceived something that we
do not. It applied the relevant statute and regulation and held
that, after Iredia’s parole expired, his “status reverted to the
status he held at the time he was paroled into the country on
November 6, 2006, which was an applicant for admission to
the United States who is inadmissible as an immigrant who
lacks a valid immigrant visa or entry document” under
§ 1182(a)(7)(A)(i)(I). AR 5. Because Iredia’s argument, while
arguably insufficient, inspired the BIA to rule on the issue he
now raises, he did not fail to administratively exhaust the issue.
Turning to the merits of Iredia’s argument, the statute
permitting parole provides:
The Attorney General may, except as provided
in [exceptions not relevant here], in his
discretion parole into the United States
2
“Any alien who was admitted as a nonimmigrant and
. . . has failed to maintain the nonimmigrant status in which the
alien was admitted . . is deportable [i.e., removable].” 8 U.S.C.
§ 1227(a)(1)(C)(i).
4
temporarily . . . any alien applying for admission
to the United States, but such parole of such alien
shall not be regarded as an admission of the alien
and when the purposes 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 applicant for admission to the United
States.
8 U.S.C. § 1182(d)(5)(A). 3 This statutory language supports
the Government’s argument that, because Iredia was paroled
into the United States in 2006, he is considered an arriving
alien regardless of his previous admission. The statute permits
the Attorney General to parole “any alien applying for
admission”—and no other category of alien. See id. And, when
parole ends, the alien’s case is “dealt with in the same manner
as that of any other applicant for admission”—further
reinforcing that the paroled alien is considered an “applicant
for admission.” Id.There is additional statutory and regulatory support for
the Government’s position. The Immigration and Nationality
3
Neither party argues that this statute is ambiguous, and
we perceive no ambiguity. Therefore, we do not owe Chevron
deference to the BIA’s statutory interpretation. See Singh v.
Att’y Gen., 12 F.4th 262, 272 (3d Cir. 2021) (explaining, at step
one of the rule announced in Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984), that “[i]f
Congress did not leave the statute ambiguous as to the specific
issue under consideration, we do not defer to the agency’s
interpretation.”).
5
Act’s definitions provision includes the following statement in
the definition of “admission” and “admitted”: “An alien who is
paroled under section 1182(d)(5) . . . shall not be considered to
have been admitted.” Id. § 1101(a)(13)(B). And the regulatory
definitions provision states that “[a]n arriving alien remains an
arriving alien even if paroled pursuant to [8 U.S.C.
§ 1182(d)(5)], and even after any such parole is terminated or
revoked.” 8 C.F.R. § 1.2. 4
We have held the same: “the term ‘arriving alien’ . . . .
encompasses not only aliens who are actually at the border, but
also aliens who were paroled after their arrival.” Zheng v.
Gonzales, 422 F.3d 98, 110 (3d Cir. 2005). “Lawful status and
admission . . . are distinct concepts in immigration law:
Establishing one does not necessarily establish the other.”
Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021). When
Iredia entered the U.S. in 2006, he was not admitted under his
long-expired visa—so his presence here could not be an
overstay of that visa. Instead, he “re-entered with no legal
status greater than that of a parolee[;] he is simply a paroled
arriving alien.” Zheng, 422 F.3d at 111.
The Second Circuit arrived at the same result in
Ibragimov v. Gonzales, 476 F.3d 125 (2d Cir. 2007). The
petitioner there, like Iredia, overstayed a tourist visa, left the
country, returned on advance parole, and was charged as
inadmissible. Id. at 128. And, like Iredia, the petitioner
“argue[d] that because he traveled abroad with the
government’s express authorization, he should have retained
his prior status as a visa overstay and been subject to a charge
4
This regulation goes on to say that a grant of advance
parole will not mean that an alien is treated as an arriving alien
under 8 U.S.C. § 1225(b)(1)(A)(i). Id. Section
1225(b)(1)(A)(i) is not applicable here.
6
of [removability] (rather than inadmissibility).” Id. The Second
Circuit disagreed and held that the petitioner was inadmissible
for several reasons.
First, the Court cited a regulation—one that neither
Iredia nor the Government cites here—that provides that if an
individual applies for adjustment of status, travels outside the
United States, is paroled back in, and then has his application
for adjustment of status denied, he “will be treated as an
applicant for admission.” Id. at 133 (emphasis omitted)
(quoting 8 CFR § 245.2(a)(4)(B)). 5 That regulation fits Iredia,
who “was paroled [in]to the United Status as an adjustment of
status applicant” and whose application for adjustment of
status was subsequently denied. AR 424-25. 6 Second, the
Court looked to the parole statute we examine above, 8 U.S.C.
§ 1182(d)(5)(A), the terms of which “reflect the well-settled
principle that Congress did not intend for parole of an alien to
constitute an alien’s legal entry or admission to the United
States.” Ibragimov, 476 F.3d at 134. Next, the Second Circuit
reasoned that “visa overstays sacrifice their status as overstays
5
See also Cheruku v. Att’y Gen., 662 F.3d 198, 201 (3d
Cir. 2011) (“Advance[] parole permits an alien temporarily to
remain in the United States pending a decision regarding his
application for admission. When used to enter the United
States initially or after travel, this amounts to permission for
ingress into the country but is not a formal admission.”
(internal quotation marks, citation, and alteration omitted)).
6
Iredia’s Record of Deportable/Inadmissible Alien
states that when he was paroled in, he was appealing the denial
of an I-360 Petition for Amerasian, Widow(er) or Special
Immigrant. AR 424-25. That appeal, and a subsequent I-485
Application to Register Permanent Residence or Adjust Status,
were unsuccessful. Id.7
when they leave the country and are not admissible on the basis
of their expired visas” when they attempt to re-enter, so the
petitioner was not “entitled to treatment either as an ‘admitted’
alien or as a ‘visa overstay’ when he returned to the country
pursuant to his advance parole.” Id. at 135. And, finally, the
Second Circuit cited a Ninth Circuit case holding that “advance
parole gave petitioner the right to return for the purpose of
completing her Adjustment Application; it did not ‘freeze’ her
status as an illegal overstay.” Id. at 137 (quoting Barney v.
Rogers, 83 F.3d 318, 321 (9th Cir. 1996)).
Iredia cites two cases where courts held that a
§ 1182(a)(7) inadmissibility charge, like the one Iredia faced,
is not applicable to an individual who is already in the United
States. His Fifth Circuit case is distinguishable because the
petitioner had not left the United States and been paroled back
in. Marques v. Lynch, 834 F.3d 549, 551-52, 562 (5th Cir.
2016). His Eleventh Circuit case does involve a petitioner who
had left the country and been paroled back in. Ortiz-Bouchet v.
Attorney General, 714 F.3d 1353, 1356-57 (11th Cir. 2013)
(per curiam). But Ortiz-Bouchet is not persuasive. For one
thing, the Eleventh Circuit considered the parole question in
light of a statute not at issue here. 7 For another thing, the
Eleventh Circuit did not cite the parole statutes and regulations
we discuss above. See Ortiz-Bouchet, 714 F.3d at 1355-57. Nor
did it explain why, in light of that statutory and regulatory
language, the petitioner could be considered admitted rather
than an applicant for admission. See id. We do not find the
Eleventh Circuit’s cursory analysis persuasive, especially
7
The question in Ortiz-Bouchet, 714 F.3d at 1357, was
whether the petitioner’s departure after a grant of advance
parole was a “departure” for the purposes of
§ 1182(a)(9)(B)(i)(II).
8
compared to the Second Circuit’s thorough consideration in
Ibragimov.
Iredia relies on a Policy Alert issued by U.S. Citizenship
and Immigration Services, as well as excerpts from the USCIS
Policy Manual, which address the effect of advance parole on
Temporary Protected Status (TPS) beneficiaries upon their
return to the United States. 8 USCIS, Effect of Travel Abroad
by Temporary Protected Status Beneficiaries with Final Orders
of Removal, PA-2019-12 (Dec. 20, 2019); 9 USCIS Policy
Manual Vol. 7, Part A, Ch. 3 n.19. 10 These authorities do not
support Iredia’s position. The text he quotes does not state or
imply that USCIS is addressing the consequences of advance
parole for anyone other than TPS beneficiaries. In fact, the
language in the policy manual derives from legislation
addressing TPS in particular. See Misc. & Tech. Immigration
& Naturalization Amends., Pub. L. No. 102-232,
§ 304(c)(1)(A), (c)(2)(B), 105 Stat. 1733, 1749 (Dec. 12,
1991). Iredia is not a TPS beneficiary, so these USCIS policy
8
Temporary Protected Status may be granted to
nationals of designated foreign countries, protecting them from
removal. 8 U.S.C. § 1254a(a)(1). “The Government may
designate a country for the [TPS] program when it is beset by
especially bad or dangerous conditions, such as arise from
natural disasters or armed conflicts.” Sanchez, 141 S. Ct. at
1811; 8 U.S.C. § 1254a(b).
9
Available at
https://www.uscis.gov/sites/default/files/document/policy-
manual-updates/20191220-TPSTravel.pdf; last visited Jan. 13,
2022.
10
Available at https://www.uscis.gov/policy-
manual/volume-7-part-a-chapter-3#footnote-19; last visited
Jan. 13, 2022.
9
documents have no bearing on his case.
For these reasons, we will deny the petition for review.
10