SAMIRAH v. HOLDER

To support its contention that advance parole is not parole but some other animal in the immigration bestiary, the government cites Barney v. Rogers, supra, and In re G-A-C-, supra. If the government were correct, these cases would be inconsistent with the First Circuit's decision in Succar, which is explicit that advance parole is a form of parole. But the government is misreading them. Barney v. Rogers says that advance parole gives an alien a "right to return for the purpose of completing her Adjustment Application" — precisely what the plaintiff is seeking. 83 F.3d at 321. And in like vein the Board of Immigration Appeals, in In re G-A-C-, supra, described advance parole as "a mechanism by which a district director can, as a humanitarian measure, advise an alien who is in this country, but who knows or fears that he will be inadmissible if he leaves and tries to return, that he can leave with assurance that he will be paroled back into the United States upon return, under prescribed conditions, if he cannot establish that he is admissible at that time" (emphasis added). 22 I. N. Dec. at 88. The Board went on to say that "the term `advance parole' is something of a misnomer" — that really it means "advance authorization of parole": "the alien is advised in advance of a departure that, if he meets certain conditions, he will be paroled into the United States when he returns." Id. at 88 n. 3. The plaintiff in this case met those conditions, which are set forth in Form I-512L. Another case, Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir. 2007), similarly describes advance parole as "a practice whereby the government decides in advance of an alien's arrival that the alien will be paroled into the United States when he arrives at a port-of-entry" — again the right that the plaintiff in this case is claiming.

So whether "advance parole" is "parole" turns out to be a quibble. If it is not a form of "parole," it is a promise of parole — that is, a promise of permission to reenter the United States so that the parolee can press his application for adjustment of status.

Moreover, it is important in interpreting judicial opinions, as in interpreting other documents, to read words in context. Each of the cases on which the government relies involved an alien who had been granted advance parole, had left the country, and had been readmitted pursuant to a new grant of parole. Later the alien's status became an issue and was held to be his status when paroled into the country, not when allowed to leave under a grant of advance parole. All that the cases stand for, in short, is that when an alien who had been granted advance parole is paroled back into the country, that second grant supersedes the grant of advance parole so far as determining the alien's status "at the time he was paroled" is concerned.

Neither case addresses the consequence of a revocation of advance parole while the alien is out of the country. They thus do not bear on the right of an alien like the plaintiff to be restored to his status at the time of the only parole that he had ever been granted — advance parole.

Curiously, the parole statute says that after revocation of advance parole "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). Being an applicant for admission to the United States is a different status from being an applicant for adjustment of status, the status the plaintiff enjoyed when he left the United States on parole. And he was never in custody. Probably all that the quoted language means is that an alien derives no superior status, by virtue of having obtained advance parole, when parole is revoked. That certainly is true, but the plaintiff is not seeking a better status than he had before it was granted.

So: the "restoration of status" regulation is unambiguous; our interpretation of it as entitling the parolee, upon revocation of his advance parole, to return to the United States to press his application for adjustment of status is confirmed by Form I-512L; the government does not suggest that the regulation (its own regulation) is invalid; and the government has violated the regulation to the plaintiffs detriment. What next?

Nothing next, says the government; for, whatever the apparent merits of this appeal, our decision turning down the previous appeal terminated the entire litigation once and for all in sweeping language: "Section 1252(a)(2)(B)(ii) bars jurisdiction over the rest of Samirah's action." 335 F.3d at 552. But section 1252(a)(2)(B)(ii) is just the section that makes the grant, denial, and — of especial significance in this case — revocation of parole nonrenewable. That is a given in this case. The question is what happens after revocation — has the plaintiff a right to return to the United States to press his application for adjustment of status? Section 1252(a)(2)(B)(ii) does not answer that question and it was not a question addressed in our previous decision.

And what is "the rest of Samirah's action" that we said in our first opinion was barred? The only "action" before us in the first appeal was the plaintiffs quest for an injunction against the revocation of his advance parole, a quest that he based on a claim to be entitled to habeas corpus relief. We held that he had no right to obtain habeas corpus relief. 335 F.3d at 549-52. That ruling was right then and is right now. Wales v. Whitney, 114 U.S. 564, 571, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Terrado v. Moyer, 820 F.2d 920, 921-22 (7th Cir. 1987) (per curiam); Patel v. U.S. Attorney General, 334 F.3d 1259, 1263 (11th Cir. 2003). Habeas corpus is a remedy for people in custody; exclusion from the United States is not custody. We didn't address the remedies that the plaintiff might have, after his challenge to the revocation of his advance parole failed, for a violation of the regulation specifying the consequences of revocation. We could not have meant to extinguish a possible remedy by way of mandamus, because to do so would have overruled (without circulation of the opinion to the full court in advance of publication, as required by 7th Cir. R. 40(e)) our decision in Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), which had held that section 1252(a)(2)(B)(ii) does not bar an alien from seeking mandamus.

Nor is it true that our previous decision, by reversing the district court without stating that the case was being remanded, ended the litigation, foreclosing the further proceedings in the district court that led to the grant of relief that the government is now contesting. The prior appeal, because it was from the grant of a preliminary injunction, was interlocutory. It invoked our appellate jurisdiction under 28 U.S.C. § 1292(a), not § 1291 (final orders). There was no occasion for a remand; the case remained pending in the district court during and after the appeal. We have reversed the grant of preliminary injunctions in the past without using the word "remand," and the district court has proceeded to the merits after the reversal. See, e.g., Thomas Betts Corp. v. Panduit Corp., 65 F.3d 654, 664 (7th Cir. 1995); on remand, 1995 WL 904908 (N.D.Ill. 1995).

And what if we did word our decision so loosely as to enable an interpretation that has us having resolved issues not before us and extinguished rights (specifically the right to return to the United States after revocation of advance parole) and remedies (specifically, mandamus) that were not yet ripe for decision because the litigation had not yet proceeded far enough? Is the plaintiff to be punished because we were imprecise?

The plaintiff, his action to restore his advance parole having failed, wants only to be allowed to return to the United States to pursue his application for adjustment of status. That is a right that the regulation unambiguously confers on him, and the unequivocal violation of a statute or regulation imposing a duty on a federal official can be rectified by mandamus — an order "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361; See Iddir v. INS, supra, 301 F.3d at 499-500; Rios v. Ziglar, 398 F.3d 1201, 1206-07 (10th Cir. 2005); cf. Davis Associates, Inc. v. Secretary of Housing Urban Development, 498 F.2d 385, 389 n. 5 (1st Cir. 1974); United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (2d Cir. 1968).

Neither in its briefs nor at oral argument has the government been able to give any reason — some ground for bending the language of its own regulation to avoid absurd or otherwise untoward consequences — why the plaintiff should not be allowed to return to the United States to pursue his application for adjustment of status. He did nothing wrong by going to visit his sick mother in Jordan — the government said he could do so and return. If he is a threat to U.S. security, he can be returned under guard and kept under guard until the application is disposed of or removal or criminal proceedings brought to successful completion against him. The government has not suggested that he is too dangerous to be allowed on an airplane — in fact it has not suggested that he is dangerous at all. One can be a "security risk" without creating a risk of committing a violent act.

No one has told us what kind of "security risk" the plaintiff is. The government points to no facts or reasoning that might support the immigration service's refusal to allow him to return to the United States. No evidence is mentioned that might connect him to Hamas. There is just the cryptic statement by the government's lawyer at oral argument — a statement redolent of guilt by association — that maybe the plaintiff "needs better friends" (what he really needed was a better travel agent, who wouldn't have routed him through Shannon). The government is going for broke: it wants an opinion from us that will affirm its right to disregard its own regulation and exclude an alien on the basis of a groundless suspicion or, for that matter, no suspicion.

The government's insistence that a grant of advance parole creates no right of reentry to the United States (or if it does create such a right, no remedy for its violation) comes close to nullifying advance parole; for what applicant for adjustment of status (and thus not yet a lawful resident) would take a chance on leaving the country if he can be denied reentry on an immigration officer's whim? The Attorney General can abolish advance parole if he wants, but he cannot be permitted to make it a trap — a device for luring a nonlawful resident out of the United States so that he can be permanently excluded from this country without any of the procedural protections that he would enjoy if, remaining in the United States, he could be removed only in a removal proceeding.

The government argues finally that the refusal of a consular official to issue a visa to an alien cannot be reviewed by the courts; and it adds (incorrectly, as we'll see) that without a visa the plaintiff, being an alien, won't be allowed back into the United States even if he waves an order of mandamus in the face of a consular official; so the plaintiff is checkmated even if his rights have been violated. The government also points out that the plaintiff has not applied for a visa — of course not; he knows it would be denied.

The doctrine of "consular nonreviewability," on which the government's argument is based and which in the United States at least has a tarnished pedigree, having been first recognized by the Supreme Court in cases that authorized the expulsion of hapless Chinese laborers, See Fong Yue Ting v. United States, 149 U.S. 698, 707, 713-14, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Chae Chan Ping v. United States (the Chinese Exclusion Case), 130 U.S. 581, 609, 9 S.Ct. 623, 32 L.Ed. 1068 (1889); Donald S. Dobkin, "Challenging the Doctrine of Consular Nonreviewability in Immigration Cases," 24 Georgetown Immigration L.J. 113, 116-22 (2010), tells courts not to second guess the immigration authorities' refusal to issue a visa to a foreigner. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543-44, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Kleindienst v. Mandel, 408 U.S. 753, 765-67, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999); Burrafato v. U.S. Dept. of State, 523 F.2d 554, 556 (2d Cir. 1975). But like most general legal principles it is qualified. As explained in United States ex rel. Knauff v. Shaughnessy, supra, 338 U.S. at 543, 70 S.Ct. 309, "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien" (emphasis added).

So there's a presumption against judicial review of denials of visas to foreigners, but not a conclusive one. See, e.g., Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008); Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988); see also Kleindienst v. Mandel, supra, 408 U.S. at 770, 92 S.Ct. 2576. Its normal operation is illustrated by Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009), vacated, 130 S.Ct. 1235, reinstated in amended form, 605 F.3d 1046 (D.C. Cir. 2010). No law authorized the plaintiffs in that case to enter the United States. Our plaintiff, in contrast, has a right to be "restored to the status that he had at the time of parole," 8 C.F.R. § 212.5(e), which includes, as we keep saying, physical presence in this country.

Several cases apply the exception recognized in Knauff to aliens entitled to mandamus because they have a clear right to be in the United States. Singh v. Clinton, 618 F.3d 1085, 1088 (9th Cir. 2010); Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997); Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir. 1988). (We said in Ahmed v. Dep't of Homeland Security, 328 F.3d 383, 388 (7th Cir. 2003), that we might agree with these cases if the issue arose. See also Iddir v. INS, supra, 301 F.3d at 499-500.) The plaintiff in this case, as in the cases cited, is unlike the typical alien, who has no right to a visa. This alien has a right, conferred by a regulation the validity of which is conceded all around, to be in this country.

Visas are issued by the State Department, however, and it is not a party to this case. It could be made a party, but that is unnecessary. The plaintiff doesn't need a visa. The Attorney General is authorized by the parole statute to parole him into the United States, 8 U.S.C. § 1182(d)(5)(A), and by regulation to grant parole "to an alien who will travel to the United States without a visa." 8 C.F.R. § 212.5(f). The fact that the plaintiffs advance parole was revoked doesn't preclude a fresh grant of parole to let him back in — an action not only consistent with the statute but (since his original travel document, the Form I-512L, has expired) required to place the government in compliance with the parole regulation — required unless an alternative route is opened to the plaintiff. Or an immigration officer can, either at a port of entry or at a pre-inspection station, 8 C.F.R. § 235.5, admit an alien upon determining that he is "clearly and beyond a doubt entitled to be admitted" to the United States. 8 U.S.C. § 1225(b)(2)(A); see Clark v. Martinez, 543 U.S. 371, 373, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). This subsection applies to any alien who is not an "arriving alien," and as we noted earlier an alien granted advance parole is not an arriving alien.

We do not retract our earlier statement, based on our previous decision, that the immigration statute makes the grant of advance parole discretionary, 8 U.S.C. § 1182(d)(5)(A), and its revocation likewise when it says that "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." Id.; See Samirah v. O'Connell supra, 335 F.3d at 548-49; Hassan v. Chertoff, 593 F.3d 785, 789-90 (9th Cir. 2010); cf. Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). But it isn't true that if we can order the Attorney General to grant parole, the decision whether to grant or deny or revoke parole is no longer in his discretion. He has limited his discretion by promulgating the regulation that requires that upon termination of advance parole the parolee be restored to his pre-parole status, and there is no suggestion that the Attorney General cannot limit his own discretion in this way — it would actually curtail his discretionary authority if he could not limit his discretion.

Just as a state may give its people more legally enforceable rights than a statute or a constitutional provision requires, e.g., DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992), so may a federal agency, by a regulation within its authority to issue, grant persons subject to its authority more legally enforceable rights than a statute or the Constitution gives them. E.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-68, 74 S.Ct. 499, 98 L.Ed. 681 (1954) ("regulations with the force and effect of law supplement the bare bones of a statute (footnotes omitted)); Leslie v. Attorney General of United States, 611 F.3d 171, 178-80 (3d Cir. 2010); Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005); Johnson Oyster Co. v. Baldridge, 704 F.2d 1060, 1062-63 (9th Cir. 1983). "[R]ules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency. The doctrine was first announced in an immigration case in United States ex rel. Accardi v. Shaughnessy, where the Court vacated a deportation order of the Board of Immigration Appeals because the procedure leading to the order did not conform to the relevant regulations. The failure of the Board and of the Department of Justice to follow their own established procedures was held to be reversible error." Montilla v. INS, 926 F.2d 162, 166-67 (2d Cir. 1991) (citation omitted). As succinctly summarized by Professor Merrill, "even if the applicable statutes confer complete discretion on agency actors, if those actors have the authority to constrain their discretion by promulgating legislative rules, and they choose to do so, they have created law that can serve as the basis for judicial review." Thomas W. Merrill, "The Accardi Principle," 74 Geo. Wash. L.Rev. 569, 605 (2006).

In holding that the plaintiff is entitled to mandamus, we do not take a single step back from our previous decision. We held first that the Attorney General has unreviewable authority to revoke advance parole, and second that the plaintiff, not being in custody and not being in the United States or in Guant´namo Bay, Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2258-62, 171 L.Ed.2d 41 (2008), cannot obtain habeas corpus relief. 335 F.3d at 548-52. Our opinion did not address the plaintiffs alternative claim to relief under the mandamus statute, though it had not been forfeited, having been preserved both in the district court and, on appeal, in this court.

Although we thus agree with the district judge that the plaintiff is entitled to relief, we don't agree with the form of relief that he ordered after our first decision. He ordered the government to allow the plaintiff to return to the United States, and to give him a removal hearing, or hold the hearing abroad if that's possible. But the government has never tried to remove the plaintiff, may never try, and for all we know would fare badly if it did try — and in any event a removal proceeding might be enjoined until the plaintiffs application for adjustment of status was resolved. Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2009); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004); cf. Benslimane v. Gonzales, 430 F.3d 828, 831-33 (7th Cir. 2005); but See Ahmed v. Gonzales, 447 F.3d 433, 437-39 (5th Cir. 2006). And a removal proceeding might end favorably to the plaintiff despite the allegation that he is a "security risk," an allegation that for all we know may evaporate upon even the most superficial inquiry into its basis. In a removal proceeding he would be entitled to examine and try to rebut any adverse evidence unless it was classified. 8 C.F.R. § 103.2(b)(16); Ogbolumani v. Napolitano, 557 F.3d 729, 735 (7th Cir. 2009). And if it was classified, he ordinarily would "be given notice of the general nature of the information and an opportunity to offer opposing evidence." 8 C.F.R. § 103.2(b)(16)(iv). But unless and until the government tries to remove the plaintiff, the courts cannot order a removal hearing.

We remand the case to the district court for the issuance of a mandamus commanding the Attorney General to take whatever steps are necessary to enable the plaintiff to reenter the United States for the limited purpose of reacquiring the status, with respect to his application for adjustment of status, that he enjoyed when he left the United States pursuant to the grant of advance parole later revoked. An order couched in terms of "take whatever steps are necessary" may seem vague. But the Attorney General has as we have indicated several means of compliance and we can let him decide which to employ to enable the plaintiff to return.

Lest the scope of our decision be exaggerated, we emphasize that the relief we are ordering will not "admit" the plaintiff to the United States in the sense of up-grading his status from that of a nonlawful resident of this country; it will merely enable him to pursue his application for an adjustment of status as long as he is permitted to remain in the country. And we intimate no view on whether he is entitled to such an adjustment. He very well may not be. But he has a right, conferred on him by the same agency of government that denies it, to more consideration than he has received. The Attorney General can grant advance parole or deny it, as he wishes; he can revoke it at will; he can eliminate advance parole altogether, or change the rules governing it. But having made the rules, whatever they are, he must, until he changes them, play by them.

AFFIRMED IN PART, MODIFIED, AND REMANDED.