Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-2005

Zheng v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-3634




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                                              PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
              ____________________

                       No. 03-3634
                  ____________________


                      ZHENG ZHENG,

                                Petitioner

                               v.

 ALBERTO GONZALES,* ATTORNEY GENERAL OF THE
              UNITED STATES,

                                 Respondent




         On Petition for Review of an Order of the
              Board of Immigration Appeals
                 (Board No. A72-500-941)




               Argued: February 7, 2005
 Before: BARRY, FUENTES, and BECKER, Circuit Judges.

                 (Filed: September 8, 2005)


JOSEPH C. HOHENSTEIN (ARGUED)
1300 Spruce Street
Philadelphia, PA 19107


    *
     Substituted pursuant to Fed. R. App. P. 43(c).
Attorney for Petitioner

PETER D. KEISLER
Assistant Attorney General
LINDA S. WERNERY
Senior Litigation Counsel
THANKFUL T. VANDERSTAR (ARGUED)
Trial Attorney
Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent

MARY A. KENNEY
NADINE K. WETTSTEIN
American Immigration Law Foundation
918 F Street, NW
Washington, DC 20004
Attorneys for Amicus Curiae American Immigration Law
       Foundation

                                          _____

                             OPINION OF THE COURT


BECKER, Circuit Judge.
                           Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. Facts and Procedural History . . . . . . . . . . . . . . . . . . . . . . . .           4
       A. Background Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . .         4
       B. Zheng’s Adjustment Application . . . . . . . . . . . . . . . .                   5
       C. Removal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . .            6
       D. Appellate Proceedings . . . . . . . . . . . . . . . . . . . . . . . .            7

III. The Motion To Reopen Asylum Proceedings . . . . . . . . . . . 8
       A. The Lozada Requirements . . . . . . . . . . . . . . . . . . . . . 9

                                             2
         B. Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Adjustment of Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      12
      A. The Statutory and Regulatory Framework . . . . . . . .                         12
            1. Statutory Authority To Adjust Status . . . . . .                         13
            2. The Eligibility Regulation . . . . . . . . . . . . . . .                 14
      B. The “Arriving Alien” Category . . . . . . . . . . . . . . . .                  15

V. The Validity of the Regulation . . . . . . . . . . . . . . . . . . . . . . 18
      A. The Chevron Analysis . . . . . . . . . . . . . . . . . . . . . . . 19
      B. Discretion and the Chevron Analysis . . . . . . . . . . . . 20
      C. Chevron Step One: Eligibility and Discretion . . . . . 22
      D. Chevron Step Two: Congressional Meaning Versus
             Regulatory Restrictions . . . . . . . . . . . . . . . . . . . 26
             1. Parole and Removal Proceedings . . . . . . . . . 26
             2. Arriving Aliens and Adjustment of Status . . . 28
             3. Is the Regulation a Permissible Interpretation of
                     the Statute? . . . . . . . . . . . . . . . . . . . . . . . 30

VI. Application to Zheng . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
      A. Zheng’s Parole Status and the Effect of the Notice to
              Appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
      B. Zheng’s Adjustment Applications . . . . . . . . . . . . . . 34
      C. Who Has Jurisdiction Over Zheng’s Application? . 35

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

                                  I. Introduction

       Zheng Zheng petitions this Court to review a decision by the
Board of Immigration Appeals (BIA) denying his motion to reopen
removal proceedings. Zheng raises two claims. First, he argues that
the BIA should have granted his motion to reopen because of
ineffective assistance of counsel. Zheng argues that his previous
attorney was ineffective because he failed to file an appellate brief
with the BIA after an Immigration Judge (IJ) denied his application
for asylum. Because we find that the prejudice requirement of the
ineffective assistance claim has not been met, we reject Zheng’s
argument on this point.
       Second, Zheng argues that the BIA should have granted his

                                             3
request to remand his case so that an IJ might consider his petitions
for adjustment of status. Zheng presses two applications to adjust
status. First, he has an employment-based application. Second, he
alleges that he is covered by the Chinese Student Protection Act of
1992, Pub. L. No. 102-404, 106 Stat. 1969 (CSPA), which allows
certain Chinese nationals to adjust their status to that of lawful
permanent residents. The government responds that Zheng is an
“arriving alien” and, as such, forbidden by regulation from
adjusting his status under 8 C.F.R. § 1245.1(c)(8). Zheng and the
amicus curiae argue that this regulation is inconsistent with the
governing statute, and therefore invalid, relying on the First
Circuit’s recent decision in Succar v. Ashcroft, 

(1st Cir.
2005).
        While our reasoning differs somewhat from that of the First
Circuit, we agree with that court’s conclusion that 8 C.F.R.
§ 1245.1(c)(8) is not a valid exercise of the Attorney General’s
authority under the Immigration and Nationality Act (INA). We
concur with the government that the statute grants the Attorney
General broad discretion to issue regulations, and that this
discretion may include some power to regulate eligibility to adjust
status. But the Attorney General’s power is not unlimited, and must
be exercised consistently with the intent of the statute. Because the
statute allows paroled aliens to apply for adjustment of status,
whereas the regulation forecloses this statutory eligibility, the
regulation is not based on a permissible statutory reading. We will
therefore grant the petition for review and remand to allow the
immigration authorities to consider Zheng’s applications for
adjustment of status.

               II. Facts and Procedural History

                       A. Background Facts

       Zheng Zheng was born on May 25, 1960, in Fuzhou,
People’s Republic of China. He claims that in 1989, when he was
a middle school teacher in Fuzhou, he was involved in student
uprisings. He apparently disseminated information from the BBC
and Voice of America to the teachers and students of his school,
passed out pamphlets, and organized rallies. The Chinese
government cracked down on the student demonstrators in June

                                 4
1989. As part of this crackdown, government authorities came
looking for Zheng. He hid from security officers for a time, staying
with friends and relatives, and eventually left China through Hong
Kong and came to the United States. Zheng apparently arrived in
California at some point in or after 1990, and entered the country
without inspection by immigration officials.
        Zheng eventually moved to Woodlyn, Pennsylvania, where
he lived until 1993, when he returned to China briefly to visit his
sick father. Before leaving for China, Zheng obtained a permission
to re-enter (or “advance parole”), dated July 28, 1993, which
allowed him to return to the United States under the status that he
had when he left. Although Zheng was an uninspected illegal alien,
he was not deportable at that time because then-President Bush had
instituted a Deferred Enforced Departure (DED) program for
certain Chinese nationals in the wake of the Tiananmen Square
massacre. See Exec. Order No. 12,711, 55 Fed. Reg. 13897 (Apr.
11, 1990). Zheng was eligible for DED, so his permission to re-
enter was issued. This allowed him to travel to China and return to
the United States without being detained at the border as an illegal
alien. He did in fact re-enter the United States on September 27,
1993, using his advance parole authorization.1

                B. Zheng’s Adjustment Application

       On October 20, 1993, Zheng filed an application to adjust
status with the Immigration and Naturalization Service (INS).2 In
this application, he claimed that he was entitled to lawful permanent
residence status under the Chinese Student Protection Act, because
he had arrived in the United States before April 11, 1990, and met


       1
       The DED program expired by its terms on January 1, 1994.
Exec. Order No. 12,711, § 1, 55 Fed. Reg. 13897 (Apr. 11, 1990).
       2
        On March 1, 2003, the INS’s functions were transferred to the
Bureau of Immigration and Customs Enforcement (ICE) and the U.S.
Customs and Immigration Service (USCIS) of the United States
Department of Homeland Security (DHS). See Knapik v. Ashcroft, 

, 86 n.2 (3d Cir. 2004) (citing Homeland Security Act of 2002,
Pub. L. No. 107-296, §§ 441, 451 & 471, 116 Stat. 2135, codified at 6
U.S.C. §§ 251, 271 & 291).

                                  5
the other requirements of the CSPA. He submitted a sworn
statement saying that he entered California on February 1, 1990, as
well as various materials that tended to show that he was in New
York prior to that date. The INS ultimately ruled on the application
on May 5, 1999—almost six years after it was filed—finding that
Zheng had failed to “present authentic and convincing evidence” to
show that he had entered the United States prior to April 1990. It
noted that many of the materials Zheng had submitted were proven
to be fraudulent, and Zheng admitted as much, saying that he
bought one of the documents on the street in Chinatown. The INS
therefore denied Zheng’s application to adjust his status.

                     C. Removal Proceedings

        That decision left Zheng as an unadmitted illegal alien. On
October 29, 1999, the INS began removal proceedings by serving
on Zheng a Notice to Appear alleging that he was an “alien present
in the United States without being admitted or paroled” under
8 U.S.C. § 1182(a)(6)(A)(i). On January 7, 2000, the INS amended
the Notice to Appear, withdrawing the § 1182(a)(6)(A)(i) charge
and adding a charge under § 1182(a)(7)(A)(i)(I), which allows
deportation of an alien who “is not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing
identification card, or other valid entry document required by [the
INA].” The new Notice to Appear also revised the factual
allegations against Zheng, alleging that he was, “on September 27,
1993, paroled into the United States pursuant to Executive Order
12711,” and that he was removable under the § 1182(a)(7)(A)(i)(I)
standard.
        Zheng retained an attorney, Sigang Li, who filed an asylum
application on his behalf on August 7, 2000. A merits hearing was
conducted before an Immigration Judge in Philadelphia on
September 17, 2001. Zheng testified during a brief direct
examination in which he contradicted his asylum application in
several important respects. Most notably, he stated that he was
depressed because he had just learned that his father had died on
August 27, 2001—but his August 2000 asylum application listed his
father as deceased. He also told a story about his interactions with
the Chinese security agencies that differed in several particulars
from the account in his application. In a lengthy cross-examination,

                                 6
counsel for the INS pointed out these inconsistencies.
       At the end of the September 17, 2001, hearing, the IJ issued
an oral decision. Before reaching Zheng’s asylum claims, he
considered his CSPA application to adjust status, which had been
submitted as an exhibit. He noted that Zheng “initially had indicated
an intent to renew that application before this Court,” but
determined that Zheng, as a parolee, was an “arriving alien” under
8 C.F.R. § 1245.1(c)(8). The IJ thus decided that Zheng was
ineligible for adjustment of status.
       The IJ then turned to Zheng’s claims for asylum, withholding
of removal, and protection under the Convention Against Torture
(CAT). Based on inconsistencies between Zheng’s testimony and
his application, the IJ made an adverse credibility finding. He thus
denied asylum, withholding, and CAT relief. As for the asylum
claim, he also found that Zheng should be barred from asylum
because he filed his claim too late, see generally 8 C.F.R.
§ 208.4(a), although he noted that he would not have exercised his
discretion adversely if Zheng had been credible and eligible for
asylum.

                     D. Appellate Proceedings

        Zheng then engaged attorney Sigang Li to file an appeal
before the BIA. Li filed a Notice of Appeal with the BIA, and
checked the box indicating that he would file a brief. He never filed
a brief, and now claims that this was because he did not receive a
briefing schedule from the BIA. Without a brief from the
petitioner, the INS also did not file a brief, and the BIA dismissed
the appeal in a short per curiam order dated August 20, 2002. The
dismissal was predicated mainly on Zheng’s counsel’s failure to file
a brief, which can support a summary dismissal under 8 C.F.R.
§ 1003.1(d)(2)(i)(E) (formerly § 3.1(d)(2)(i)(D)). The BIA also
considered the merits, however, noting that “upon review of the
record, we are not persuaded that the Immigration Judge’s ultimate
resolution of this case was in error.” Zheng never petitioned this
Court to review the BIA’s August 2002 decision.
        Zheng retained new counsel, who filed a timely motion to
reopen with the BIA on November 18, 2002, alleging ineffective
assistance of counsel. The motion argued that Li’s failure to file a
brief constituted ineffective assistance and thus warranted

                                 7
reopening. It further argued that Zheng was entitled to review of
his application for adjustment of status. The motion to reopen also
pressed Zheng’s application to adjust status pursuant to the CSPA,
and included a further application for adjustment of status based on
an approved Petition for Alien Worker.3
        In a March 5, 2003, decision, the BIA denied the motion to
reopen, finding that Zheng had not complied with the procedural
requirements of an ineffective assistance claim, and that even if he
had, he did not demonstrate that any prejudice resulted from Li’s
failure to file a brief. The BIA also rejected Zheng’s applications
for CSPA and work-related adjustment of status, agreeing with the
IJ that Zheng was an arriving alien in removal proceedings and
therefore ineligible to apply for adjustment of status. Zheng retained
a third attorney, who timely filed the present petition for review
with this Court.4 We have jurisdiction to review the final order of
the BIA under 8 U.S.C. § 1252.

        III. The Motion To Reopen Asylum Proceedings

       We deal first with Zheng’s argument that the BIA should
have granted his motion to reopen proceedings because of
ineffective assistance of counsel. Zheng initially applied for asylum,
withholding of removal, and CAT protection. Those applications
were denied by the IJ, and Zheng’s first attorney failed to file an


       3
         Zheng’s Immigrant Petition for Alien Worker was approved by
the INS with a priority date of February 14, 2001. The petition was
granted under INA section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i),
which allows skilled workers (Zheng is a Chinese chef) to receive
immigrant visas. An alien with such an approved petition may, in the
discretion of the Attorney General, have his status adjusted to that of a
lawful permanent resident. See 8 U.S.C. §§ 1153(b)(3) & 1229(a); see
generally U.S. Citizenship and Immigration Services, How Do I Become
a Lawful Permanent Resident While in the United States?,
http://uscis.gov/graphics/howdoi/legpermres.htm (last visited August 8,
2005).
       4
        Due to a mailing mishap, the March 2003 decision was reissued
on August 4, 2003. The petition for review, dated September 2, 2003,
was therefore timely filed within 30 days of the final order of removal.
See 8 U.S.C. § 1252(b)(1).

                                    8
appellate brief with the BIA, which affirmed the IJ’s order. Zheng
submits that this failure constituted ineffective assistance and
required the BIA to reopen proceedings.
       Motions to reopen immigration proceedings are viewed with
strong disfavor, and “we review the BIA’s decision to deny
reopening for abuse of discretion, mindful of the ‘broad’ deference
that the Supreme Court would have us afford.” Xu Yong Lu v.
Ashcroft, 

, 131 (3d Cir. 2001).

                   A. The Lozada Requirements

         Aliens in removal proceedings have a Fifth Amendment
right to due process, which entails a right to be represented by
counsel. 

. Ineffective assistance of counsel may
“constitute a denial of due process if ‘the alien was prevented from
reasonably presenting his case.’” 

v. INS, 

, 13-14 (1st Cir. 1988)).
         The BIA has set forth three requirements for motions to
reopen based on claims of ineffective assistance: (1) the alien’s
motion must be supported by an “affidavit of the allegedly
aggrieved [alien] attesting to the relevant facts”; (2) “former
counsel must be informed of the allegations and allowed the
opportunity to respond,” and this response should be submitted with
the motion; and (3) “if it is asserted that prior counsel’s handling of
the case involved a violation of ethical or legal responsibilities, the
motion should reflect whether a complaint has been filed with
appropriate disciplinary authorities regarding such representation,
and if not, why not.” Matter of Lozada, 19 I. & N. Dec. 637, 639
(BIA 1988).
         We have “generally agree[d] that the BIA’s three-prong test
is not an abuse of the Board’s wide-ranging discretion.” 

. The Lu panel, however, was not willing to “apply[] a
strict, formulaic interpretation of Lozada,” and noted that “only in
rare circumstances have courts refused to reopen immigration
proceedings solely because a petitioner failed to file a bar
complaint.” 

134 (emphasis in original). In Lu we denied
a petition for review where the alien had neither set forth the
relevant facts in sufficient detail, as required by the first prong of
Lozada, nor filed a disciplinary complaint.
         Zheng, however, seems to have satisfied the Lozada

                                  9
requirements as we interpreted them in Lu. Unlike Lu, Zheng
submitted a reasonably detailed affidavit explaining that his former
attorney, Sigang Li, had agreed to file an appellate brief but never
did. Second, Li was afforded an opportunity to respond, and did so
in a statement in which he admitted that he had agreed to file a
brief, but claimed that he did not do so because he never received
a briefing schedule. Finally, although Zheng’s later attorneys have
not filed a disciplinary complaint against Li, Lozada does not
mandate that they do so, so long as they explain why they did not.
Zheng’s attorneys have explained, in accordance with the third
prong of Lozada, that they did not file a complaint because of their
uncertainty as to whether or not Li ever received a briefing
schedule. Zheng’s present attorneys have been diligent in
investigating this issue and have submitted a request under the
Freedom of Information Act (FOIA) to determine whether such a
briefing schedule was issued.5 Zheng thus appears to have met the
procedural requirements of Matter of Lozada.

                                B. Prejudice

       Nonetheless, Zheng’s ineffective assistance claim fails
because he has not demonstrated that prejudice resulted from the
ineffective assistance of his BIA appellate counsel. Under Lozada,
to prevail on an ineffective assistance claim, an alien must
demonstrate not only that counsel’s assistance was ineffective, but
also that he was prejudiced by counsel’s poor performance. 19 I. &
N. Dec. at 638.
       When the BIA dismissed Zheng’s appeal for failure to
submit a brief, it also stated that it was satisfied that the IJ’s


        5
          The FOIA documents revealed that the INS also did not submit
a brief to the BIA, although the administrative record indicates that there
was a briefing notice issued to Zheng’s lawyer and to the INS. Zheng
interprets the lack of an INS brief to mean that neither party actually
received the briefing notice or schedule. The government, however,
points out that the lack of an INS brief proves nothing, as the INS is not
required to submit an appellate brief before the BIA. Without a brief
from the alien, the INS would have no reason to file a brief: the alien’s
failure to file a brief is in itself sufficient cause for the BIA to dismiss the
appeal. See 8 C.F.R. § 1003.1(d)(2)(i)(E).

                                      10
decision was not erroneous. Similarly, in denying the motion to
reopen, the BIA noted that the motion did not allege that any
prejudice resulted from the ineffective assistance. A review of
Zheng’s motion to reopen confirms the BIA’s conclusion: the
motion states that Li’s failure to file a brief “has irreparably
prejudiced [Zheng’s] eligibility for relief from removal,” but it does
not explain why Zheng would have been eligible for relief from
removal in the first place. Indeed, in this petition for review, Zheng
does not even argue that he could have prevailed on the asylum
appeal if Li had filed a brief, beyond a general statement that he
would have had the opportunity to “make his claim for asylum
again to the BIA.” Our limited review of the merits of Zheng’s
asylum claim satisfies us that no prejudice resulted from Li’s failure
to file an appellate brief, as explained in the margin.6
        Instead, Zheng alleges two other kinds of prejudice. First, he
argues that an effective appellate counsel would have been able to
present his adjustment of status claims. Because the substance of
those claims is currently before us, see infra Parts IV-V, no
prejudice seems to have resulted from Li’s failure to argue those
issues before the BIA, and we consider those claims in connection
with the merits rather than as part of an ineffective assistance
argument.
        Second, Zheng contends that “counsel’s review of the
hearing transcripts before the IJ . . . identifies serious concerns
about the quality of the representation at that hearing.” He asserts
that Li was unwilling to meet with him to prepare his testimony, had
trouble finding Zheng’s file, and conducted only a brief and


       6
         The IJ denied asylum on the basis of an adverse credibility
finding, listing numerous discrepancies between Zheng’s testimony and
his asylum application and finding that Zheng’s explanation of these
problems on cross-examination was unconvincing. Furthermore, even if
Zheng were credible, he does not seem to have alleged any past
persecution: he was questioned by security officers, and was demoted at
work. He does not, however, allege that he was ever detained (beyond
a brief house arrest), tortured, or even threatened. He returned to China
in 1993, and does not appear to have encountered any trouble during that
visit. Zheng has given us no reason to believe that, if Li had filed an
appellate brief with the BIA, the Board might have reversed the IJ’s
reasonable asylum decision.

                                   11
unprepared direct examination. Li’s incompetence before the IJ,
Zheng argues, prejudiced his ability to present his asylum claims.
        This argument was not presented to the BIA in the motion to
reopen, which focused solely on ineffective assistance at the
appellate level. The failure to exhaust this claim before the BIA
“bars consideration of particular questions not raised in an appeal
to the Board.” Alleyne v. INS, 

, 1182 (3d Cir. 1989);
see also Awad v. Ashcroft, 

, 340 (7th Cir. 2003); Prado
v. Reno, 

, 292 (1st Cir. 1999). Furthermore, Zheng has
not satisfied the Lozada requirements as to this claim: Li, his
attorney, has had no opportunity to dispute Zheng’s characterization
of his performance before the IJ, and Zheng has not explained why
no disciplinary complaint was filed regarding these allegations.
        We reiterate that our review of the Board’s decision turns on
abuse of discretion. Based on the arguments presented to it, the BIA
seems to have been well within its discretion to find that no
prejudice resulted from Li’s ineffective appellate assistance.

                    IV. Adjustment of Status

        A far more difficult question is presented by Zheng’s
attempts to renew his application to adjust status under the CSPA,
and to adjust his status based on his employment-based immigrant
visa petition. The BIA held that Zheng is ineligible for this relief
because its regulations prohibit “arriving aliens” from adjusting
status. This claim was raised as part of Zheng’s motion to reopen,
and the BIA’s ultimate decision on the motion is subject to review
for abuse of discretion. 

. The Board’s legal
conclusions, however, are subject to de novo review, “with
appropriate deference to the agency’s interpretation of the
underlying statute.” Barrios v. Attorney General, 

, 274
(3d Cir. 2005) (citing Abdulai v. Ashcroft, 

, 551-52 (3d
Cir. 2001)).

           A. The Statutory and Regulatory Framework

        While Zheng appears to be eligible to apply for adjustment
of status under the plain terms of the Immigration and Nationality
Act, a regulation promulgated pursuant to the Act renders him
ineligible to do so. Zheng argues that the regulation is therefore

                                 12
invalid, a claim we take up in Part V, infra. In this Part, we explain
why Zheng is ineligible for adjustment under the terms of the
relevant regulation.

               1. Statutory Authority To Adjust Status

       Zheng claims that he may adjust his status under INA section
245(a), 8 U.S.C. § 1255(a), which provides:

        The status of an alien who was inspected and
        admitted or paroled into the United States or the
        status of any other alien having an approved petition
        for classification under subparagraph (A)(iii),
        (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) [8
        U.S.C. § 1154(a)(1)] [or]7 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 if (1) the
        alien makes an application for such adjustment, (2)
        the alien is eligible to receive an immigrant visa and
        is admissible to the United States for permanent
        residence, and (3) an immigrant visa is immediately
        available to him at the time his application is filed.

Zheng argues that he was “admitted or paroled into the United
States” by virtue of (1) his prior Deferred Enforced Departure status
(which Zheng contends was an “admission”) and (2) his re-entry to
the United States pursuant to a grant of advance parole on
September 27, 1993. If this contention is correct, then the statutory
text would appear to render Zheng eligible for adjustment of status,
although the final decision to adjust status is left to the discretion of
the Attorney General.
       Zheng applied to adjust status pursuant to the Chinese
Student Protection Act of 1992, § 2, Pub. L. No. 102-404, 106 Stat.


        7
         Subparagraphs (A)(iii), (A)(iv), (B)(ii), and (B)(iii) of 8 U.S.C.
§ 1154(a)(1) all refer to aliens who are the spouses or children of citizens
or lawful permanent residents, and are not applicable here. The “or” in
the statutory text of § 1255 appears to be a mistake, and is noted as such
in the United States Code Annotated.

                                    13
1969 (CSPA). In relevant part, the CSPA provides that an alien who
(1) is a national of the People’s Republic of China, (2) has resided
continuously in the United States since April 11, 1990 (other than
“brief, casual, and innocent absences”), and (3) was not in China for
more than 90 days between April 11, 1990, and October 9, 1992,
may adjust status to that of a lawful permanent resident without
regard to availability of immigrant visas. 

& (b). In
addition, Zheng asks to adjust status pursuant to an employment-
based application.

                   2. The Eligibility Regulation

        The government responds that Zheng is ineligible to adjust
status because he is an “arriving alien who is in removal
proceedings.” The government’s theory is based on a regulation
promulgated pursuant to the INA, which provides that “[a]ny
arriving alien who is in removal proceedings pursuant to section
235(b)(1) or section 240 of the Act [8 U.S.C. § 1225(b)(1) or
§ 1229a]” is categorically “ineligible to apply for adjustment of
status to that of a lawful permanent resident alien under section 245
of the Act [8 U.S.C. § 1255].” 8 C.F.R. § 1245.1(c)(8). We deal
with the question whether Zheng is an “arriving alien” later. See
infra Part IV.B. For now, we note that it is clear that Zheng is
currently in removal proceedings under section 240 of the INA, 8
U.S.C. § 1229a, and therefore falls under the regulation if he is in
fact an “arriving alien.”
        It is less clear that Zheng’s application to adjust his status
falls under section 245 of the INA, 8 U.S.C. § 1255. Zheng argues
instead that it falls under the CSPA, which is a separate statute.8
This argument is based on the BIA’s decision in Matter of Artigas,
23 I. & N. Dec. 99 (BIA 2001), in which the Board allowed an
arriving alien to adjust status pursuant to the Cuban Refugee
Adjustment Act, Pub. L. No. 89-732, 80 Stat. 1161 (1966). The INS
had argued that Artigas’s application was barred by 8 C.F.R.
§ 1245.1(c)(8), but the BIA disagreed, finding that the regulation
only covers section 245 applications, and “does not state that
arriving aliens in removal proceedings are ineligible to apply for

       8
        Zheng’s application to adjust status based on his employment
visa application falls squarely under section 245.

                                 14
adjustment of status under the Cuban Adjustment Act.” Artigas, 23
I. & N. Dec. at 104. Zheng argues that the CSPA, like the Cuban
Refugee Adjustment Act, is an independent means of adjusting
status, and that it is therefore not covered by § 1245.1(c)(8). The
BIA disagreed, noting cursorily that it “[saw] no reason to extend
[its] holding in Matter of Artigas . . . to the instant case.”
        Zheng’s analogy has intuitive appeal, in that the CSPA and
the Cuban Refugee Adjustment Act serve similar purposes, and
there is therefore some logic to treating them similarly.
Nonetheless, the two statutes work via different mechanisms, and
this difference dooms Zheng’s argument. The Cuban Refugee
Adjustment Act specifically created a new mechanism for
adjustment of status, in language that to some extent parallels
section 245 but does not rely on it. (Indeed, that Act operates
“[n]otwithstanding the provisions of section 245(c) of the
Immigration and Nationality Act.” Cuban Refugee Adjustment Act
§ 1, Pub. L. No. 89-732, 80 Stat. 1161.)
        The CSPA, on the other hand, applies specifically “whenever
[a covered] alien . . . applies for adjustment of status under section
245 of the Immigration and Nationality Act.” CSPA § 2(a)(1), Pub.
L. No. 102-404, 106 Stat. 1969 (emphasis added). Thus the CSPA
modifies some of the rules for Chinese aliens’ applications for
adjustment of status under section 245, but those applications are
still made under that section. By its terms, then, the eligibility
regulation applies to Zheng’s case, even though it did not apply in
Artigas.
        We therefore find that Zheng’s applications to adjust status
were made pursuant to INA section 245, 8 U.S.C. § 1255. Thus, if
Zheng is an “arriving alien,” and if 8 C.F.R. § 1245.1(c)(8) is valid,
then the regulation renders him ineligible for such relief.

                B. The “Arriving Alien” Category

       The next question facing us is whether Zheng is an “arriving
alien” within the meaning of § 1245.1(c)(8). This phrase is defined
by regulation:

       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

                                 15
       transit through the United States at a port-of-entry, or
       an alien interdicted in international or United States
       waters and brought into the United States by any
       means, whether or not to a designated port-of-entry,
       and regardless of the means of transport. An arriving
       alien remains such even if paroled pursuant to section
       212(d)(5) of the Act, except that an alien who was
       paroled before April 1, 1997, or an alien who was
       granted advance parole which the alien applied for
       and obtained in the United States prior to the alien’s
       departure from and return to the United States, shall
       not be considered an arriving alien for purposes of
       section 235(b)(1)(A)(i) of the Act.

8 C.F.R. § 1.1(q).9
       While the first portion of this definition at first seems to
support an intuitive reading of the term “arriving alien”—viz., that
it means “an alien who is physically arriving at the border of the
United States”—in fact the term has a much broader meaning. It
encompasses not only aliens who are actually at the border, but also
aliens who were paroled after their arrival.10 It is therefore clear that


       9
         Section 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5), authorizes
the Attorney General to parole into the United States “temporarily under
such conditions as he may prescribe only on a case-by-case basis for
urgent humanitarian reasons or significant public benefit 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 the parole must
be terminated when its purposes have been served. Section
235(b)(1)(A)(i) of the INA, 8 U.S.C. § 1225(b)(1)(A)(i), governs
screening of arriving aliens by immigration officers. As Zheng received
advance parole in 1993, he is not an arriving alien for section
235(b)(1)(A)(i) purposes, and so cannot be summarily removed by an
immigration officer.
       10
         More broadly, courts and commentators seem to take “arriving
alien” as a catch-all category containing all aliens who have not been
“inspected and admitted” to the United States. See, e.g., Succar v.
Ashcroft, 

, 16 (1st Cir. 2005) (“Parolees, although they are
physically present in the United States, are treated as if they were at the
border seeking admission.”); Stanley Mailman & Stephen Yale-Loehr,

                                    16
Zheng is an “arriving alien.” He arrived in the United States without
inspection, but then left pursuant to an advance parole. Because he
re-entered with no legal status greater than that of a parolee, he is
simply a paroled arriving alien.
        Zheng objects to this characterization on two grounds, both
of them erroneous. First, he maintains that, because he was subject
to Deferred Enforced Departure after April 1990, he was admitted
to the United States and so is not an arriving alien. There is no
support for this contention. DED is not an admission status. Rather,
the President simply ordered the Attorney General to defer
deporting Chinese nationals between April 1990 and January 1994,
because of worries about the effects of the Tiananmen Square
crackdown. See Exec. Order No. 12,711, § 1, 55 Fed. Reg. 13897
(Apr. 11, 1990). This moratorium in enforcement of immigration
laws against some aliens did not transform them into lawfully
admitted immigrants.
        Second, Zheng argues that application of the“arriving alien”
classification to him is impermissibly retroactive, because the term
entered the statute with the passage of the Illegal Immigration
Reform and Immigrant Responsibility Act, Pub. L. No. 104-208,
110 Stat. 3009 (1996) (IIRIRA), whereas he has been in the United
States since 1990. Zheng has cited no support for the proposition
that this change in immigration terminology and procedure is
impermissibly retroactive, and we reject it.11
        We therefore conclude that Zheng is an “arriving alien”
within the meaning of the regulations. Because he is an arriving
alien in removal proceedings, and because he is attempting to apply
for adjustment of status, he meets all of the criteria of 8 C.F.R.


Adjustment of Status for Paroled Persons: An Endangered Species?,
N.Y. L.J., Feb. 28, 2005, at 3 (equating the term “arriving alien” with
“unadmitted alien”).
       11
          Zheng cites INS v. St. Cyr, 

(2001), for the
proposition that some of IIRIRA’s changes are impermissibly
retroactive. But St. Cyr dealt with a section of IIRIRA that “attache[d]
new legal consequences to events completed before its enactment.” 

(quoting Martin v. Hadix, 

, 357-58 (1999)). The
definition of “arriving alien” does no such thing, and, apart from the
effects of § 1245.1(c)(8), Zheng has not identified any substantive
consequence of application of the new term to him.

                                  17
§ 1245.1(c)(8), and is therefore ineligible to adjust status under the
plain terms of that regulation. It remains for us to decide whether
the regulation is valid.

                 V. The Validity of the Regulation

        Zheng contends that 8 C.F.R. § 1245.1(c)(8), the regulation
that renders him ineligible to adjust status, is invalid. He argues that
the regulation is inconsistent with the text of INA section 245, 8
U.S.C. § 1255(a), and therefore exceeds the Attorney General’s
regulatory authority. We note that 8 U.S.C. § 1252(a)(2)(B)(i) strips
courts of jurisdiction to review “any judgment regarding the
granting of relief under” 8 U.S.C. § 1255. This provision plainly
forecloses review of the Attorney General’s exercise of discretion
in granting adjustment of status in individual cases, but we are
satisfied that it does not foreclose review of the BIA’s interpretation
of the legal standards for eligibility for such adjustment. See
Succar v. Ashcroft, 

, 19-20 (1st Cir. 2005). The
government does not now dispute that we have jurisdiction to
consider Zheng’s challenge to its regulations.
        It appears that amicus curiae American Immigration Law
Foundation (AILF) has made a concerted effort to bring and argue
this claim in many of the Courts of Appeals. The result of this
effort, for our purposes, is that we have two recent well-reasoned
opinions from other Courts of Appeals to consult in ruling on the
validity of the regulation. The first is Succar v. 

(Lynch, J.), in which a unanimous panel of the First Circuit struck
down the regulation. A short companion opinion, Rodriguez de
Rivera v. Ashcroft, 

(1st Cir. 2005), further explained
Succar.
        In contrast, in Mouelle v. Gonzales, Nos. 03-1760 & 03-
3086, — F.3d —, 

(8th Cir. July 29, 2005)
(Beam, J.), the Eighth Circuit rejected Succar’s conclusion and
found that the regulation was within the scope of the Attorney
General’s authority. Judge Bye dissented, stating that he would
follow the reasoning of Succar.12


       12
         The Fifth Circuit, in an unpublished decision, has rejected an
arriving alien’s request to adjust status despite an amicus brief filed by
the AILF. See Diarra v. Gonzales, No. 04-60097, 

                                   18
                      A. The Chevron Analysis

      A court’s review of a regulation interpreting a statute is
normally subject to Chevron deference. This standard of judicial
review requires a two-step inquiry:

       When a court reviews an agency’s construction of the
       statute which it administers, it is confronted with two
       questions. First, always, is the question whether
       Congress has directly spoken to the precise question
       at issue. If the intent of Congress is clear, that is the
       end of the matter; for the court, as well as the agency,
       must give effect to the unambiguously expressed
       intent of Congress. If, however, the court determines
       Congress has not directly addressed the precise
       question at issue, the court does not simply impose its
       own construction on the statute, as would be
       necessary in the absence of an administrative
       interpretation. Rather, if the statute is silent or
       ambiguous with respect to the specific issue, the
       question for the court is whether the agency’s answer
       is based on a permissible construction of the statute.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

, 842-43 (1984) (footnotes omitted). However, where Congress
has not merely failed to address a precise question, but has given an
“express delegation of authority to the agency to elucidate a specific



(5th Cir. 2005) (unpublished per curiam opinion). The Diarra panel
merely found that the petitioner was an arriving alien under
§ 1245.1(c)(8), without addressing the validity of that regulation. It is
unclear whether the question of validity was briefed.
        Other pending cases in which the AILF has requested or been
granted amicus curiae status include Ramos Bona v. Ashcroft, Nos. 03-
71596 & 03-72488 (9th Cir.); Hong v. Gonzales, No. 04-74034 (9th
Cir.); Roozeky v. Ashcroft, No. 04-71540 (9th Cir.); and Shah v.
Gonzales, No. 05-10587 (11th Cir.). See American Immigration Law
Foundation,                S u c c a r-R ela ted            Ca ses,
http://www.ailf.org/lac/lac_arrivingalien.htm (last visited August 19,
2005). None of these cases had been decided as of the date of this
opinion.

                                   19
provision of the statute by regulation,” then the agency’s
“legislative regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.” 

       In the first step of the Chevron analysis, courts may
“employ[] traditional tools of statutory construction [to] ascertain[]
that Congress had an intention on the precise question at issue.” INS
v. Cardoza-Fonseca, 

, 448 (1987) (quoting 

n.9). “Even for an agency able to claim all the
authority possible under Chevron, deference to its statutory
interpretation is called for only when the devices of judicial
construction have been tried and found to yield no clear sense of
congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 

, 600 (2004).

              B. Discretion and the Chevron Analysis

        The government first argues that we owe § 1245.1(c)(8) even
greater deference than the two-step Chevron structure would
provide. Specifically, the government contends that § 1245.1(c)(8)
is a mere exercise of the discretion that the statute explicitly entrusts
to the Attorney General, and therefore cannot be overruled by a
court. We could not second-guess the Attorney General’s decision
to deny adjustment in a specific instance, see 8 U.S.C.
§ 1252(a)(2)(B)(i), and the government contends that we have no
more authority to question the Attorney General’s decision to
exercise this discretion by across-the-board regulation rather than
by case-by-case decisionmaking.
        In support of this argument, the government points to
Attorney General Janet Reno’s explanation of § 1245.1(c)(8) at the
time of its promulgation. Although the regulation governs
eligibility, the explanation was specifically phrased in terms of the
Attorney General’s discretion:

       Consistent with Congress’ intent that arriving aliens
       . . . be removed in an expedited manner through the
       procedures provided in section 235(b)(1) of the Act
       [8 U.S.C. § 1225(b)(1)], the Attorney General has
       determined that she will not favorably exercise her
       discretion to adjust the status of arriving aliens who

                                   20
       are ordered removed pursuant to section 235(b)(1) of
       the Act or who are placed in removal proceedings
       under section 240 of the Act [8 U.S.C. § 1229a]. . . .
       If the Service decides as a matter of prosecutorial
       discretion, not to initiate removal proceedings but to
       parole the arriving alien, the alien will be able to
       apply for adjustment of status before the district
       director.

62 Fed. Reg. 444, 452 (1997).
        As further support for its position, the government cites
Lopez v. Davis, 

(2001). In Lopez, the Court
considered a Bureau of Prisons (BOP) regulation denying early
release to prisoners whose offense involved a firearm. Lopez, a
prisoner, argued that this regulation was inconsistent with the
governing statute, which provides that the BOP “may” grant early
release to any prisoner convicted of a “nonviolent offense” who
successfully completed a substance abuse treatment program. See
18 U.S.C. § 3621(e)(2)(B). The Court determined that the BOP was
entitled to exercise its discretionary authority by categorical
regulation, and was not confined to case-by-case 

.
        Lopez supports the government’s argument that the Attorney
General may use regulation to define the contours of his discretion.
But Lopez is a double-edged sword, for it does not stand for the
proposition that the statutory grant of discretion to the Attorney
General renders his exercise of that discretion functionally
unreviewable. Instead, Lopez puts this discretionary authority
squarely within the second step of the Chevron framework:

       Beyond instructing that the Bureau has discretion to
       reduce the period of imprisonment for a nonviolent
       offender who successfully completes drug treatment,
       Congress has not identified any further circumstance
       in which the Bureau either must grant the reduction,
       or is forbidden to do so. In this familiar situation,
       where Congress has enacted a law that does not
       answer “the precise question at issue,” all we must
       decide is whether the Bureau, the agency empowered
       to administer the early release program, has filled the

                                 21
       statutory gap “in a way that is reasonable in light of
       the legislature’s revealed design.”

(quoting NationsBank of N.C., N.A. v.
Variable Annuity Life Ins. Co., 

, 257 (1995) (citing

)); see also Mouelle, 

,
at *6.
       Thus, we find that, to the extent that the statute grants the
Attorney General the discretion to create categorical eligibility rules
for adjustment of status, those rules are nonetheless subject to
review for reasonableness under the second prong of the Chevron
test.

         C. Chevron Step One: Eligibility and Discretion

        We turn to the first prong of the Chevron analysis. We do so
because Zheng and amicus argue that the statute does not grant the
Attorney General any discretion to determine eligibility for
adjustment of status. They argue instead that, while the Attorney
General may issue regulations regarding the adjustment process,
and while he certainly has discretion over the final decision to grant
adjustment, Congress has explicitly spoken on the issue of
eligibility for adjustment, and the Attorney General thus has no
power to modify the statutory eligibility requirements. This
argument was endorsed by the First Circuit in Succar, which found
the statute unambiguous and struck down the regulation under the
first prong of the Chevron test. 

, 30.
        This argument begins from the text of INA section 245(a),
which, to repeat, provides:

       The status of an alien who was inspected and
       admitted or paroled into the United States . . . 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 if (1) the alien makes an application for
       such adjustment, (2) the alien is eligible to receive an
       immigrant visa and is admissible to the United States
       for permanent residence, and (3) an immigrant visa is
       immediately available to him at the time his

                                  22
       application is filed.

8 U.S.C. § 1255(a). Zheng and amicus argue that the plain text of
this provision allows any alien “inspected and admitted or paroled
into the United States” to make an application to adjust status,
although it leaves the ultimate discretion to grant adjustment in the
hands of the Attorney General.
        Zheng’s argument draws further support from the structure
of the adjustment provisions in the INA. Section 245 does not stop
with the general adjustment provision quoted above; rather, it goes
on to exclude several categories of aliens from eligibility for
adjustment. Section 245(c), 8 U.S.C. § 1255(c), provides that
subsection (a) shall not apply to alien crewmen, aliens who accept
unauthorized employment or are in unlawful immigration status,
aliens deportable for engaging in terrorist activities, and certain
aliens with visa defects or other problems with their immigration
status.13 And subsection (e) provides that the Attorney General may
not adjust the status of an alien who marries during removal
proceedings and who seeks adjustment based on that marriage.
        The First Circuit found this long list of statutory exclusions
to be compelling evidence that “Congress unambiguously reserved
to itself the determination of who is eligible to apply for adjustment
of status relief.” 

. That court noted that
“when Congress desired to limit the ability of a non-citizen who
might otherwise have been eligible to apply for adjustment of status
under 1255(a), it has done so explicitly by defining several
categories of aliens as not eligible to apply.” 

From the
statutory text and structure, the court discerned “two themes”:

       First, Congress explicitly rendered ineligible a certain
       category of aliens to apply. Second, that category of
       excluded aliens included some in removal
       proceedings, but Congress chose not to disqualify
       from eligibility all of those aliens “inspected and
       admitted or paroled” in removal or other judicial
       proceedings. In those limited circumstances when the
       involvement in proceedings works to hamper an

       13
         The government does not contend that any of the § 1255(c)
exclusions bar Zheng’s application.

                                 23
       individual’s ability to adjust status, Congress has
       explicitly said so.

gave the First Circuit a “clear sense of
congressional intent,” 

(quoting Gen. Dynamics Land 

), and led it to conclude that the statute
unambiguously precluded the Attorney General from imposing
further restrictions on eligibility to apply for adjustment of status.
        The First Circuit conceded that the statute grants the
Attorney General broad discretion to grant or deny adjustment of
status. But it found an important distinction between eligibility to
apply for adjustment and the substantive relief of a grant of
adjustment. In drawing this distinction, the court relied on INS v.
Cardoza-Fonseca, 

(1987). In that case, the Supreme
Court considered the asylum standard of “well-founded fear of
persecution,” which the Attorney General had interpreted as
incorporating the withholding of removal standard that the alien be
“more likely than not” to be persecuted. The Court noted that the
Attorney General has discretion to grant asylum to eligible refugees,
but nonetheless rejected his interpretation of the standards for
eligibility. See 

449. The First Circuit took this to
mean that “[t]he Supreme Court . . . has ruled that the two
questions of discretion as to the ultimate relief and discretion as to
eligibility exclusions are distinct.” 

; see also
INS v. Yang, 

, 30 (1996) (“While [8 U.S.C.
§ 1251(a)(1)(H)] establishes certain prerequisites to eligibility for
a waiver of deportation, it imposes no limitations on the factors that
the Attorney General . . . may consider in determining who, among
the class of eligible aliens, should be granted relief.”).
        The Eighth Circuit, disagreeing with Succar, pointed out that
Cardoza-Fonseca need not be read for the proposition that
discretion to grant substantive relief and discretion to restrict
eligibility are unrelated. Cardoza-Fonseca concerned the Attorney
General’s interpretation of a statutory standard, while the regulation
at issue here “does not purport to interpret statutory eligibility
standards, but rather rests on the discretionary authority that
Congress explicitly gave the Attorney General to grant adjustment-
of-status relief.” Mouelle, 

, at *6. The court
asked rhetorically, “[W]hy should the Attorney General be forced
to exercise his discretion through rules that speak only to the

                                 24
ultimate relief rather than eligibility?” 

Relying on Lopez,
which allowed an agency to exercise its discretion via general
rulemaking rather than by individual determinations, the Eighth
Circuit concluded that “it makes little sense to invalidate this
regulation simply because it speaks in terms of eligibility.” 

question is close, we cannot agree with the First
Circuit that the statutory text and structure indicate a clear intent to
preempt the field of eligibility. The fact that Congress declared
some categories of aliens ineligible for adjustment by statute does
not in itself conclusively prove that the Attorney General cannot
declare other categories ineligible by regulation. Indeed, in Lopez,
the prisoner argued “that, by identifying a class of inmates
ineligible for sentence reductions under § 3621(e)(2)(B), i.e., those
convicted of a violent offense, Congress has barred the Bureau from
identifying further categories of ineligible 

. This argument is essentially identical to that adopted by
Succar: that statutory eligibility standards “cover the field” and
prevent an agency from further regulating eligibility. But the
Supreme Court rejected this argument in Lopez, and we are
unwilling to follow it here.14 See also Mourning v. Family Publ’ns
Serv., Inc., 

, 372 (1973) (“Respondent argues that, in
requiring disclosure as to some transactions, Congress intended to
preclude the [agency] from imposing similar requirements as to any
other transactions. To accept respondent’s argument would
undermine the flexibility sought in vesting broad rulemaking
authority in an administrative agency.”).
        We therefore find that, under the first step of the Chevron
analysis, INA section 245 is ambiguous as to whether the Attorney


       14
          The First Circuit distinguished Lopez by noting that in section
245, 8 U.S.C. § 1255, “Congress made numerous and explicit policy
choices about who is eligible for adjustment of status relief, who is
ineligible, and of those ineligible, who is nonetheless eligible with
certain application restrictions.” 

. In the Lopez
statute, on the other hand, Congress had identified only a single class of
ineligible inmates: those who had committed violent felonies. While this
distinction is plausible, and section 245 and § 3621(e)(2)(B) certainly
differ in specificity, we respectfully conclude that Succar’s distinction
comes perilously close to rejecting the Supreme Court’s holding in
Lopez.

                                   25
General may regulate eligibility to apply for adjustment of status.

      D. Chevron Step Two: Congressional Meaning Versus
                    Regulatory Restrictions

        Even if the statute is ambiguous, and even if the Attorney
General is empowered to issue regulations to fill in gaps in the
statute, those regulations must be “reasonable in light of the
legislature’s revealed design.” 

. The
fact that the Attorney General may regulate eligibility does not give
him free rein to issue any eligibility regulations that he chooses;
under the second step of Chevron, those regulations must still be
“based on a permissible construction of the 

.
                 1. Parole and Removal Proceedings

        To deal with the second Chevron prong, we must examine
the statute in more depth. We begin with the fact that section 245(a)
allows the Attorney General to grant adjustment to any alien “who
was inspected and admitted or paroled into the United States.” 8
U.S.C. § 1255(a). Importantly, the statute grants eligibility to adjust
status not only to those aliens who have been lawfully admitted into
the United States, but also to those who have merely been paroled.

       Parole is authorized by section 212 of the INA:
       The Attorney General may, except as provided in
       subparagraph (B) or in section 1184(f) of this title, in
       his discretion parole into the United States
       temporarily under such conditions as he may
       prescribe only on a case-by-case basis for urgent
       humanitarian reasons or significant public benefit 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.

                                  26
8 U.S.C. § 1182(d)(5)(A). Regulations prescribe in more detail who
may be paroled; it appears that the broadest class of parolees
comprises those “whose continued detention is not in the public
interest.” 8 C.F.R. § 212.5(b)(5).
        Paroled aliens are not admitted to the United States. 8 U.S.C.
§ 1101(a)(13)(B). Instead, they are treated by the statute as
“applicants for admission.” 

(“An alien present in
the United States who has not been admitted . . . shall be deemed
for the purposes of this chapter an applicant for admission.”). The
statute provides that an applicant for admission “shall be detained
for a [removal] proceeding” if an immigration officer determines
that he or she is “not clearly and beyond a doubt entitled to be
admitted.” 

Parole is a form of relief from
immigration detention; it is not a form of relief from removal
proceedings, and when the purposes of parole have been served the
parolee must be returned to custody and removal proceedings must
continue. 

Thus, the statutory structure seems
to indicate that virtually all parolees will be in removal proceedings.
        The parties to this case have not provided us with any
statistics to test our supposition that most parolees are in removal
proceedings. However, the First Circuit noted in Succar that “it was
represented in the briefs before this court that the ‘majority of the
intended beneficiaries of parolee adjustment of status are in
removal proceedings,’” and that the Attorney General did not
dispute that 

.
        More compelling than any statistic, however, is the statutory
structure that indicates that parolees will, by default, be in removal
proceedings: any alien “not clearly and beyond a doubt entitled to
be admitted” will be placed in removal proceedings, 8 U.S.C.
§ 1225(b)(2)(A), so any parolee—that is, any alien who has been
inspected but not admitted—will necessarily be in removal
proceedings. We thus do not rely exclusively upon the statistics
provided to the Succar court; our conclusion is informed by the
plain indication of congressional intent. It is clear from the statutory
text that Congress intended for virtually all parolees to be in
removal proceedings.15

       15
         The Attorney General, in promulgating § 1245.1(c)(8),
suggested that the then-INS might “decide[] as a matter of prosecutorial
discretion, not to initiate removal proceedings but to parole the arriving

                                   27
       It is equally clear, of course, that Congress intended that
parolees, as a general class, be eligible for adjustment of status: the
statute provides explicitly that the Attorney General may grant
adjustment to “an alien who was inspected and admitted or paroled
into the United States.” 8 U.S.C. § 1255(a). The statute further
provides that the Attorney General may grant the adjustment “if the
alien makes an application for such adjustment,” 

which plainly contemplates that paroled aliens may make such an
application (though of course the Attorney General need not grant
it). Because the large majority of aliens paroled into the United
States will be in removal proceedings, it is difficult to avoid the
conclusion that Congress intended that the mere fact of removal
proceedings would not render an alien ineligible to apply for
adjustment of status. See also 

(“Congress
chose not to disqualify from eligibility all of those aliens ‘inspected
and admitted or paroled’ in removal or other judicial
proceedings.”).

            2. Arriving Aliens and Adjustment of Status

      The regulation under which the government wants to exclude
Zheng provides as follows:



alien,” which would then render the alien eligible to adjust status before
the district director. 62 Fed. Reg. 444, 452 (1997). But of course, as
outlined above, the decision to parole an alien is not synonymous with
the decision not to initiate removal proceedings. Instead, as we have
explained, parolees will by default—and by clear congressional
intent—be in removal proceedings. Thus, under the text of the
regulation, DHS’s discretionary decision to parole an alien would not
render the alien eligible for adjustment of status, because the alien would
still be an arriving alien in removal proceedings.
         Even assuming, however, that DHS does have the prosecutorial
discretion to dismiss removal proceedings—an assumption that is
questionable given the statutory requirement that parolees “shall be
detained for a [removal] proceeding,” 8 U.S.C. § 1225(b)(2)(A)
(emphasis added)—Congress clearly intended for most parolees to be in
removal proceedings. We thus doubt that DHS’s prosecutorial discretion
will result in many paroled aliens being eligible for adjustment under the
regulation.

                                    28
       (c) Ineligible aliens. The following categories of
       aliens are ineligible to apply for adjustment of status
       to that of a lawful permanent resident alien under
       section 245 of the Act:
       ...
       (8) Any arriving alien who is in removal proceedings
       pursuant to section 235(b)(1) or section 240 of the
       Act [8 U.S.C. § 1225(b)(1) or § 1229a] . . . .

8 C.F.R. § 1245.1. While the statute renders parolees eligible, as a
general rule, for adjustment of status, the regulation appears to have
the opposite effect. The regulation is phrased in terms of “arriving
aliens,” as defined by 8 C.F.R. § 1.1(q), but this term seems to be
essentially synonymous with “applicants for admission” as defined
by 8 U.S.C. § 1225(a)(1). 

Part V.D.1. In particular,
although the term “arriving alien” might sound like it refers only to
those aliens physically in the process of arriving in the United
States, it also extends to those who arrive and are paroled into the
United States. See 8 C.F.R. § 1.1(q); 

; Part

. Thus “arriving aliens” appears to encompass most or
all of those aliens who are paroled into the United States, as well as
many of those aliens who are detained by DHS. Indeed, in its
supplemental briefing, the government states that “[a] parolee is an
‘arriving alien’ who has been permitted temporary entry into the
United States, as opposed to a non-parolee ‘arriving alien’ who has
been detained for removal proceedings.”
         Similarly, the regulation limits its scope to arriving aliens
who are “in removal proceedings,” but as we have seen this is no
real limitation. At least the majority of aliens paroled into the
United States are in removal proceedings, yet, as explained above,
Congress’s clear intent is that virtually all parolees should be in
such proceedings. 

Part V.D.1. We are thus faced with a
regulation that renders most aliens paroled into the United States
ineligible to apply for adjustment of status.
         The government points out that, under its regulations, some
parolees may be eligible for adjustment of status. Specifically, the
government notes that an arriving alien may renew an adjustment
application that was denied by a district director, if the alien had
filed the denied application pursuant to an earlier admission into the
United States and then renewed the application after returning to the

                                 29
United States under the terms of an advance parole granted in order
to pursue the adjustment application. See 8 C.F.R. § 1245.2(a)(1)(i)
& (ii). This is, however, a very narrow exception.16 Moreover, it
does not comport with Congress’s stated intent that parolees should
be eligible to apply for adjustment of status. The parolees allowed
to adjust status under § 1245.2(a)(1) are only those who are
renewing applications that they made as “admitted” aliens; the
regulation makes no provision for aliens making a first-time
application while in removal proceedings. Thus, under the
government’s reading, paroled aliens may not really apply to adjust
status; they may only renew applications that they made when they
were not “paroled” but “admitted.”
        In short, while there may be paroled aliens who are eligible
to apply for adjustment of status under the regulations promulgated
by the Attorney General, the government has not pointed to any
significant category of paroled aliens who would in fact be eligible
to make such an application. For all practical purposes, then, it
appears that § 1245.1(c)(8) renders paroled aliens ineligible to apply
for adjustment of status.

 3. Is the Regulation a Permissible Interpretation of the Statute?

        We are thus faced with a statute providing that, in general,
aliens paroled into the United States may apply to adjust their
status, and a regulation providing that, in general, they may not. The

        16
          The government points out that this exception existed prior to
the passage of IIRIRA and the 1997 adoption of § 1245.1(c)(8). In
Matter of Castro-Padron, 21 I. & N. Dec. 379 (BIA 1996), the BIA held
that an IJ had no jurisdiction to entertain an application for adjustment
of status made by an alien in removal proceedings, except in the narrow
circumstances described in the text. The government cites Castro-
Padron for the theory that the § 1245.1(c)(8) exception “is not a new
rule that the INS is imposing.” But prior to 1997, while IJs lacked
jurisdiction to consider applications like Zheng’s, INS district directors
had such jurisdiction. See Castro-Padron, 21 I. & N. Dec. at 380 (“The
applicants can file their adjustment applications with the district director
of the Immigration and Naturalization Service, who has sole jurisdiction
over the application and can act on the application independently of [the
removal] proceedings.”). After 1997, the regulations prevent aliens in
Zheng’s position from applying for adjustment in any forum.

                                    30
conflict between regulation and statute is clear and unmistakable.
Under the second step of the Chevron test, “we must determine
‘whether the regulation harmonizes with the plain language of the
statute, its origin, and purpose. So long as the regulation bears a fair
relationship to the language of the statute, reflects the views of
those who sought its enactment, and matches the purpose they
articulated, it will merit deference.’” Appalachian States Low-Level
Radioactive Waste Comm’n v. O’Leary, 

, 110 (3d Cir.
1996) (quoting Sekula v. FDIC, 

, 452 (3d Cir.1994)).
        While this is a deferential standard, we think it plain that
§ 1245.1(c)(8) fails to meet it. As we have explained above in some
detail, Congress’s clearly expressed intent was to allow most
paroled aliens to apply for adjustment of status; the regulation’s
effect is to bar almost all such aliens from adjustment. Congress’s
intent is apparent both from the language of the statute, allowing
aliens “paroled into the United States” to apply for adjustment, and
from its structure, allowing such applications as a general matter
and excluding only a few narrow classes from eligibility. This
conclusion is supported by the legislative history. The First Circuit
in Succar examined the history of INA section 245 in some detail,
and came to the conclusion that Congress’s intent in enacting that
section was to spare admitted and paroled aliens the hardship and
expense of having to leave the United States in order to apply for an
adjustment of status to which they were entitled. See 

.
        We have found that the text of INA section 245 leaves some
ambiguity about whether the Attorney General may determine by
regulation what classes of aliens are eligible to apply for adjustment
of status, thus precluding reliance on the first prong of the Chevron
test. 

Part V.C. But, as we noted there, the decision is a
close one: the statutory structure and language noted by the Succar
court, while not unambiguous, certainly suggest that Congress
intended to regulate eligibility by statute rather than to leave it in
the Attorney General’s hands. The closeness of the step one
question has some bearing on our step two decision. While the
statute may be ambiguous enough to allow for some regulatory
eligibility standards, it does not so totally abdicate authority to the
Attorney General as to allow a regulation, like § 1245.1(c)(8), that
essentially reverses the eligibility structure set out by Congress.
        Chevron, of course, stands for the proposition that

                                  31
administrative agencies receive broad deference in interpreting the
statutes which they are charged with enforcing. We are mindful of
our obligation to respect the decisions of the immigration agencies,
which are informed by long experience and deep specialization in
matters of great national importance. But we have an even higher
obligation to respect the clearly expressed will of Congress, which
in promulgating and amending the INA made its own considered
decisions, balancing the need to swiftly remove undeserving aliens
against the desire to afford every applicant a fair chance to request
any immigration benefits that he or she may deserve.
       Given Congress’s intent as expressed in the language,
structure, and legislative history of INA section 245, the
regulation’s effect of precluding almost all paroled aliens from
applying to adjust their status does not “harmonize[] with the plain
language of the statute, its origin, and purpose.” 

. Because 8 C.F.R. § 1245.1(c)(8) is not based on a permissible
reading of INA section 245(a), 8 U.S.C. § 1255(a), we hold that the
regulation is invalid insofar as it renders parolees ineligible to apply
for adjustment of status. As explained in the following Part, we will
therefore remand Zheng’s case to the immigration authorities for
further consideration.

                     VI. Application to Zheng

        Having held that § 1245.1(c)(8) is invalid
, we now turn to several miscellaneous issues, specific to Zheng’s
case, that the government contends prevent him from applying for
adjustment of status.

 A. Zheng’s Parole Status and the Effect of the Notice to Appear

        Zheng meets section 245’s requirement that he be an alien
“admitted or paroled into the United States,” 8 U.S.C. § 1255(a),
because he was granted advance parole to return to the country in
1993. 

Part II.A. The government argues, however, that
his parole was revoked when the INS served him with a Notice to
Appear. The regulations provide that, “[w]hen a charging document
is served on the alien, the charging document will constitute written
notice of termination of parole, unless otherwise specified.” 8
C.F.R. § 212.5(e)(2)(i). Thus, because Zheng’s parole was revoked

                                  32
when a Notice to Appear was served on him, he is said to no longer
be “paroled into the United States” under the terms of section 245.
        While this argument is facially plausible, it seems to conflict
with the statutory and regulatory scheme. The Notice to Appear
institutes removal proceedings, but it does not normally revoke
parole in any literal, physical sense. Thus the Notice to Appear in
our record ordered Zheng to appear before an Immigration Judge;
it did not commit him to INS custody. The regulation quoted above
also provides that “[i]f the exclusion, deportation, or removal order
cannot be executed within a reasonable time, the alien shall again
be released on parole unless in the opinion of [a DHS] official . . .
the public interest requires that the alien be continued in custody.”
8 C.F.R. § 212.5(e)(2)(i). Because Zheng does not seem to have
been taken into custody, and because the Notice to Appear merely
commenced removal proceedings rather than executing a removal
order, we are forced to conclude that this exception applied to
Zheng, and that he was free on parole during his removal
proceedings.17 Perhaps the Notice to Appear revoked his parole,
but, if so, he was immediately reparoled.
        Because Zheng appears to have remained free on parole
throughout the pendency of removal proceedings, and is free on
parole now, we hold that he qualifies as an “alien paroled into the
United States” under the terms of section 245. We leave to another
day a determination of whether DHS may prevent a paroled alien
from applying for adjustment of status by serving a Notice to
Appear and committing the alien to custody. Zheng argues, with
some force, that the statute uses a past participle, speaking in terms
of aliens “admitted or paroled into the United States,” not merely
aliens currently free on parole. While this word choice is not
conclusive evidence, it does suggest that DHS might be unable to
terminate adjustment eligibility simply by revoking parole.
        We also note amicus’s argument that the revised Notice to
Appear charged Zheng only with lack of possession of a valid
unexpired immigrant visa under INA section 212(a)(7)(A)(i)(I), 8
U.S.C. § 1182(a)(7)(A)(i)(I), and that the CSPA specifically
excludes this charge as a basis for denying adjustment of status,

       17
          The government has never contended that the public interest
requires that Zheng be held in custody, nor is there any evidence in the
record to support such a contention.

                                   33
CSPA § 2(a)(3)(A), 106 Stat. at 1969. We agree with amicus that
it seems anomalous to allow DHS to revoke Zheng’s eligibility to
adjust status by charging him under a section of the INA that the
CSPA renders inapplicable.

               B. Zheng’s Adjustment Applications

        Zheng presses two adjustment applications. One is based on
his approved employment-based immigrant visa petition. Zheng’s
employment-based adjustment application was first raised in his
motion to reopen before the BIA. As far as we can determine,
neither the DHS, the IJ, nor the BIA has considered this application.
Because we have found that Zheng is eligible to apply for
adjustment, we will remand this application for further
consideration by the proper authorities. See infra Part VI.C.
        Zheng’s second adjustment claim is a renewal of his
application to adjust status pursuant to the CSPA, which was
previously denied because Zheng had submitted fraudulent
documents in support of his claim. Indeed, the 1999 denial of
Zheng’s adjustment petition is what precipitated these removal
proceedings.
        We are sympathetic to the government’s position that “the
statute does not mandate that Zheng, or any other alien, be given a
second chance to apply for adjustment of status.” But the BIA
explicitly rejected Zheng’s CSPA adjustment application, not
because it was duplicative, but because the Board found that Zheng,
as an arriving alien in removal proceedings, is ineligible for
adjustment of status. We are bound to review the agency’s decision
based solely on the stated grounds for that decision. See SEC v.
Chenery Corp., 

, 95 (1943); Li v. Attorney General, 

, 163 (3d Cir. 2005). Here, the BIA’s stated basis for
denying relief was the § 1245.1(c)(8) eligibility regulation, which
we have found invalid.
        As the First Circuit put it in the companion case to Succar:

               Since the agency action . . . cannot be
       sustained on the stated grounds, the appropriate
       remedy is to remand to the BIA for further
       proceedings consistent with the holding [on the
       eligibility issue]. We do not address any other issues.

                                 34
               We do not, for example, address the issue of
       whether Rivera’s application for adjustment of status
       is somehow number-barred because she already filed
       one earlier application, which was denied. None of
       the IJ, the BIA, or the government in its brief to this
       court have suggested that any such number bar exists.

Rodriguez de 

. Similarly, here, although the
government has in its brief argued the unfairness of giving Zheng
multiple chances to submit credible evidence of his CSPA claim, it
has not pointed to any provision of the statute or regulations that
would bar Zheng from renewing his application for adjustment of
status. We must therefore remand that application to the
immigration authorities.

      C. Who Has Jurisdiction Over Zheng’s Application?

        In order to remand this case, we must determine who has
jurisdiction to hear Zheng’s applications for adjustment of status.
Jurisdiction over applications to adjust status is allocated by
regulation:

       An alien who believes he or she meets the eligibility
       requirements of section 245 of the Act [8 U.S.C.
       § 1255] or section 1 of the Act of November 2, 1966
       [viz., the Cuban Refugee Adjustment Act], and [8
       C.F.R.] § 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 . . .
       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
       . . . and § 1245.1 shall apply to the director having
       jurisdiction over his or her place of arrival.



                                 35
8 C.F.R. § 1245.2(a)(1).
           This regulation appears to create three categories of
applicants. First, there is a broad catch-all category of aliens who
believe they are eligible. These aliens may apply for adjustment to
the district director18 with jurisdiction over their residence. Second,
aliens who are not arriving aliens, but who are in removal
p r o c e e d in g s , m a y a p p ly f o r a d j u s tm e n t in t h o s e
proceedings—ordinarily, we expect, to the IJ with jurisdiction over
the removal proceedings. Third, arriving aliens who are not in
removal proceedings may apply for adjustment to the district
director with jurisdiction over their place of arrival.
           This list seems to omit a fourth category, arriving aliens who
are in removal proceedings. Such an omission is, of course,
perfectly consistent with § 1245.1(c)(8), which renders that class of
aliens ineligible to apply for adjustment of status. Because we have
found the eligibility regulation invalid, however, we must consider
the impact of our decision on the jurisdictional regulation:
if arriving aliens in removal proceedings are eligible to adjust
status, then someone must have jurisdiction to consider their
applications.
           In a letter dated February 4, 2005, we asked counsel to
address the question of who should have jurisdiction to hear
adjustment petitions of arriving aliens in removal proceedings if we
were to find that such aliens were eligible to adjust status.
Following oral argument, the parties submitted supplemental

        18
          At the time this regulation was enacted, the district director was
a local official of the INS. With the enactment of the Homeland Security
Act of 2002, the term’s meaning has become inscrutable. See 8 C.F.R.
§ 1.1(o) (“On or after March 1, 2003, pursuant to delegation from the
Secretary of Homeland Security or any successive re-delegation, the
terms [‘director’ or ‘district director’] mean, to the extent that authority
has been delegated to such official: service center director; special agent
in charge; field office director; district director for services; district
director for interior enforcement; or director, field operations.”). We use
“district director” to designate whatever DHS official is now responsible
for reviewing applications to adjust status, probably a USCIS District
Director. It appears that adjustment of status applications are now made
at district offices of the USCIS. See, e.g., USCIS Philadelphia Field
Office, About Us, http://uscis.gov/graphics/fieldoffices/
philadelphia/aboutus.htm (last visited August 6, 2005).

                                    36
briefing on this and other questions. Zheng’s position is that the
Immigration Judge responsible for removal proceedings should
have jurisdiction over his adjustment applications. The
government’s position is less clear, but it appears to ask us to “leave
to the Attorney General the determination of who has jurisdiction
over such applications.”
        The simplest reading of § 1245.2(a)(1) in light of our
eligibility holding is that aliens in Zheng’s position fall into the
catch-all category of aliens who may apply to the USCIS district
director responsible for their place of residence. This reading is
bolstered by the fact that, prior to the enactment of the eligibility
regulation that we have invalidated today, an arriving alien in
removal proceedings was required to file his or her adjustment
applications with the INS district director rather than the IJ hearing
the removal proceedings. See Matter of Castro-Padron, 21 I. & N.
Dec. 379, 380 (BIA 1996) (“The applicants can file their adjustment
applications with the district director of the Immigration and
Naturalization Service, who has sole jurisdiction over the
application and can act on the application independently of [the
removal] proceedings.”); see also supra note 16.
        In Succar and Rodriguez de Rivera, the First Circuit
invalidated § 1245.1(c)(8) and remanded to the BIA without
explaining who had jurisdiction to hear petitioners’ adjustment
applications. See 

; Rodriguez de 

. Consistent with our reading above, commentators seem
to have assumed that the district director will have exclusive
jurisdiction to hear adjustment applications from arriving aliens in
removal proceedings. But other conclusions are possible:

       As a consequence [of Succar], parolees in
       proceedings are currently eligible to adjust status
       before USCIS notwithstanding the fact that the
       individual is in proceedings. Moreover, it is reported
       that at least some of the immigration judges in the
       Boston immigration court are also accepting
       adjustment applications from “arriving alien”
       parolees and adjudicating them.

Sarah Ignatius & Elisabeth S. Stickney, Immigration Law & the
Family § 8:35 (database updated 2005).

                                  37
        Because the plain text of § 1245.2(a)(1) appears to grant the
district director the jurisdiction to hear adjustment of status
applications from arriving aliens in removal proceedings, and
because neither party has provided any convincing argument for
granting jurisdiction to any other official, we tentatively conclude
that the USCIS district director for Philadelphia should have
jurisdiction over Zheng’s adjustment application. Nonetheless, we
will remand to the BIA for further consideration; if the parties
agree, or the BIA is convinced, that the IJ has jurisdiction to hear
Zheng’s application, then the Board may remand it to the IJ rather
than to the district director.

                         VII. Conclusion

       For the reasons set forth in Part II, we will deny Zheng’s
petition for review insofar as it relates to his motion to reopen
asylum proceedings. But because 8 C.F.R. § 1245.1(c)(8)
contradicts the clear language and expressed intent of INA section
245(a), 8 U.S.C. § 1255(a), we find that the regulation is not a
permissible exercise of the Attorney General’s discretion.
Therefore, as an alien paroled into the United States, Zheng is
eligible to apply for adjustment of status, which the Attorney
General may grant or deny in his discretion, and we will grant the
petition for review on that basis. We will remand this case to the
BIA for further proceedings consistent with this opinion. On
remand, the BIA must determine who has jurisdiction over Zheng’s
adjustment applications.




                                 38