                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                              Nos. 03-1760/03-3086
                                  ___________

Jean Mouelle; Germaine Mouelle,     *
                                    *
             Petitioners,           *
                                    *
       v.                           * Petitions for Review of Orders
                                    * of the Board of Immigration Appeals.
                   1
Alberto Gonzales, Attorney General  *
of the United States,               *
                                    *
             Respondent.            *
                               ___________

                             Submitted: October 21, 2004
                                Filed: July 29, 2005
                                 ___________

Before BYE, BEAM, and GRUENDER, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

      Jean and Germaine Mouelle ask us to grant a petition for review regarding two
Board of Immigration Appeals (BIA) decisions rendered in their removal
proceedings. We deny the petitions.




      1
       Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
I.     BACKGROUND

       Jean Mouelle, a native and citizen of the Republic of Congo, entered the United
States in 1989 as a J-1 exchange visitor so he could pursue masters and doctoral
degrees from the University of Idaho. His wife, Germaine, also a native and citizen
of the Republic of Congo, entered the United States as a dependent of an exchange
visitor. The Mouelles did not return to the Republic of Congo when their
nonimmigrant visas expired.

       In May 1996, Jean filed an application for asylum and withholding of removal,
naming Germaine as a dependent.2 In May 1997, while their asylum application was
pending, Jean was presented with the opportunity to go to Canada for field research
and to assist a class that he was teaching. Cognizant of their immigration status and
the likelihood that they would not be able to reenter the United States if they went to
Canada, the Mouelles contacted the Immigration and Naturalization Service3 and
applied for advance parole, which would allow them to reenter the United States. The
INS granted that request. The Mouelles left the United States on May 31, 1997, and
reentered a day later, on June 1, 1997, at Eastport, Idaho, pursuant to their advance
parole.




       2
       Jean also came very close to obtaining lawful residency in 1994 when he won
the diversity visa lottery. But, as a J-1 nonimmigrant, Jean was required to obtain a
"no objection" letter from the Congolese government in order to relieve him of the
J-1 two-year foreign residency requirement under 8 U.S.C. § 1182(e). Though Jean
ultimately did get the "no objection" letter, he did not get it before his ability to obtain
a diversity visa had expired.
       3
       In March 2003, the functions of the Immigration and Naturalization Service
were transferred to the newly formed Department of Homeland Security (DHS). See
Homeland Security Act of 2002, 6 U.S.C. §§ 101 et seq.

                                            -2-
        On April 15, 1998, the INS commenced removal proceedings against the
Mouelles, serving them with notices to appear before an immigration judge. At the
first removal hearing in August 1998, the INS realized the allegations contained in
the notices to appear were inaccurate. The Mouelles, however, agreed to allow the
INS to add additional removal charges. Those new charges sought removal under 8
U.S.C. §§ 1182(a)(7)(A)(i)(I) & (B)(i)(II), essentially for the Mouelles' failure to
present proper documentation when they reentered the United States in June 1997.
At the next removal hearing in October 1998, the Mouelles admitted that they were
inadmissible under subsection (B)(i)(II) when they sought reentry in June 1997, and
the immigration judge found that they were also inadmissible under subsection
(A)(i)(I). In lieu of removal, Jean renewed his request for asylum and withholding
of removal, which apparently had not yet been addressed by the INS. The
immigration judge set the matter for an evidentiary hearing in August 1999.

      At the evidentiary hearing in August 1999, the immigration judge denied the
Mouelles' claims for asylum and withholding of removal. After finding that the
Mouelles were removable, the immigration judge granted them the privilege of
voluntary departure so long as they depart before October 5, 1999, and post departure
bonds.

      The Mouelles appealed the immigration judge's ruling to the BIA. The BIA
affirmed the immigration judge's decision in February 2003. But because the
Mouelles had not posted their departure bonds, the BIA revoked their privilege of
voluntary departure, making the Mouelles immediately removable.

      During the three-and-a-half years that their appeal was pending, the Mouelles
sought employment-based visas. Jean filed an I-140 Immigrant Petition for Alien
Worker on April 28, 2001. That petition was denied in November 2001, because Jean
had not shown that it was in the nation's interest for the Attorney General to waive
the job-offer requirement of 8 U.S.C. § 1153(b)(2)(B). Germaine had an I-140

                                        -3-
Immigrant Petition for Alien Worker filed on her behalf by her employer,
Presbyterian Homes and Services, Inc. That petition was approved in August 2002
under 8 U.S.C. § 1153(b)(3)(A)(i) or (ii) (skilled workers or professionals).

      The Mouelles did not try to adjust their immigration status based on Germaine's
approved I-140 petition until March 2003, after the BIA had affirmed the immigration
judge's decision. In March 2003, the Mouelles filed applications to adjust their
immigration statuses under 8 U.S.C. § 1255(i). And in May 2003, the Mouelles filed
a motion to reopen their removal proceedings and remand the matter to the
immigration judge so that they could apply for adjustment of status.

       In July 2003, the BIA denied the Mouelles' motion to reopen, stating that they
"are ineligible for adjustment of status because they are 'arriving aliens' in removal
proceedings, notwithstanding the approved [I-140] visa petition."

      The Mouelles were scheduled to be removed from the United States on May
7, 2003. We have stayed their removal, pending the resolution of their petitions for
review.

       The Mouelles have two pending petitions for review that have been
consolidated here. The first, No. 03-1760, concerns the BIA's February 2003 denial
of the Mouelles' asylum application. The second, No. 03-3086, concerns the BIA's
July 2003 denial of the Mouelles' motion to reopen the removal proceedings.4




      4
       The Mouelles also filed a motion for reconsideration with the BIA in August
2003, asking the BIA to reconsider its July 2003 denial of their motion to reopen.
The motion for reconsideration was denied in December 2003. The Mouelles have
not petitioned for review of that decision, so it is not before us. See Raffington v.
INS, 340 F.3d 720, 722 (8th Cir. 2003).

                                         -4-
II.   DISCUSSION

      A.     No. 03-1760: Asylum and Withholding of Removal

       With regard to the initial BIA decision in February 2003, denying their claims
for asylum and withholding of removal, the Mouelles argue only that the immigration
judge violated their Fifth Amendment procedural due process rights.5 The Mouelles
did not present the due process issue to the BIA in their appeal or in their motion to
reopen. Thus, we are without jurisdiction to consider it. Sayaxing v. INS, 179 F.3d
515, 522-23 (7th Cir. 1999). And, even if we had jurisdiction, the Mouelles' due
process claim fails because they have not addressed, let alone established,
prejudice—"that the outcome of the proceeding may well have been different had the
due process violation not occurred." Ismail v. Ashcroft, 396 F.3d 970, 975 (8th Cir.
2005).

      B.     No. 03-3086: Adjustment of Status

      All of the Mouelles' remaining arguments address the BIA's July 2003 denial
of their motion to reopen the removal proceedings to allow them to apply for
adjustment of status under 8 U.S.C. § 1255(i). "We have jurisdiction to review the
BIA's denial of the motion to reopen for abuse of discretion." Sidikhouya v.
Gonzales, 407 F.3d 950, 951 (8th Cir. 2005).




      5
        Specifically, the Mouelles argue that the immigration judge failed to give them
sufficient time to fully present their asylum and withholding-of-removal claims,
interrupted Jean's testimony with questioning, "failed to elicit specific and detailed
testimony that was material and significant," drew "odd conclusions before testimony
was even completed," interrupted Jean's attorney, and cut off counsel's closing
argument.

                                         -5-
      The BIA refused to reopen the Mouelles' removal proceedings because they
were "arriving aliens in removal proceedings" under 8 C.F.R. § 1245.1(c)(8)6 and
were thus ineligible to apply for relief under 8 U.S.C. § 1255(i). The Mouelles make
two arguments: (1) they were in fact eligible to adjust status under the regulations,
and (2) if they were not, the regulations are invalid.

             1.   Status-Adjustment Eligibility Under the Regulations

         As a matter of regulatory construction, the BIA's conclusion was correct.
Section 1245.1(c) of the regulations lists certain categories of aliens who are
"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]." And section 1245.10(b) of the
regulations—which deals specifically with adjustments under 8 U.S.C. §
1255(i)—incorporates those exclusions through its reference to section 1245.1(b),
which, in turn, references section 1245.1(c). One of the section 1245.1(c) categories
of ineligible aliens is "[a]ny arriving alien who is in removal proceedings pursuant
to . . . section 240 of the Act [8 U.S.C. § 1229a]." 8 C.F.R. § 1245.1(c)(8).

       The Mouelles were in removal proceedings under 8 U.S.C. § 1229a when they
made their motion to reopen. But they argue that the BIA abused its discretion by
denying their motion based on 8 C.F.R. § 1245.1(c)(8) because they are not arriving
aliens. The term "arriving alien" is defined as




      6
       The regulations were duplicated and renumbered while the Mouelles'
proceedings were pending. As part of the Homeland Security Act of 2002 and the
transfer of immigration responsibilities to the DHS, the regulations were duplicated
from Chapter I, renumbered in the 1000 series, and placed in Chapter V of Title 8.
We cite to the Chapter V regulations, though the same regulations can be found in
Chapter I. For instance 8 C.F.R. § 1245.1(c)(8) matches 8 C.F.R. § 245.1(c)(8).

                                        -6-
      an applicant for admission coming or attempting to come into the United
      States at a port-of-entry . . . . An arriving alien remains such even if
      paroled pursuant to section 212(d)(5) of the Act [8 U.S.C. § 1182(d)(5)],
      except that . . . 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
      U.S.C. § 1225(b)(1)(A)(i)].

8 C.F.R. § 1001.1(q) (emphasis added). The Mouelles argue that their receipt of
advance parole before going to Canada qualified them for the italicized exception.
It did, but that exception is for the limited purpose of 8 U.S.C. § 1225(b)(1)(A)(i),
which requires immigration officers to order some arriving aliens immediately
removed "without further hearing or review." In other words, under the regulations,
the Mouelles were arriving aliens when they sought reentry and their parole into the
United States did not generally affect that status. But the italicized language does
preclude expedited removal in their cases because they were granted advance parole.
The regulation does not, however, allow aliens arriving with advance parol to shed
their arriving-alien status for the purpose of adjusting immigration status. Rather, the
quoted regulation preserves that status notwithstanding the aliens' arrival. And if
such aliens are in removal proceedings when they first try to adjust status,7 the
regulations make them ineligible. So the Mouelles were arriving aliens in removal
proceedings and were thus barred from adjusting their statuses.

             2.   Validity of 8 C.F.R. § 1245.1(c)(8)

       The Mouelles argue, alternatively, that 8 C.F.R. § 1245.1(c)(8) is invalid. After
this case had been argued and submitted, Succar v. Ashcroft, 394 F.3d 8 (1st Cir.
2005), was decided. The Succar court concluded that 8 C.F.R. § 1245.1(c)(8) was


      7
      An arriving alien who seeks to renew an adjustment application in removal
proceedings can do so under certain circumstances. See 8 C.F.R. § 1245.2(a).

                                          -7-
inconsistent with 8 U.S.C. § 1255(a)8, and was thus invalid under the first step of
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., because "Congress ha[d]
directly spoken to the precise question at issue." 467 U.S. 837, 842 (1984) (quoted
in Succar, 394 F.3d at 22). We allowed the parties to supplement their briefs, and we
accepted an amicus brief in support of the Mouelles from the American Immigration
Law Foundation.

       We respectfully disagree with the First Circuit's decision in Succar. Succar
rested on the notion that Congress had explicitly determined what classes of aliens
were and were not eligible to apply for discretionary adjustment-of-status relief. 394
F.3d at 29. Given that congressional judgment—constituting, in the court's opinion,
a clear expression of its intent—the court held that the regulation was invalid under
the first step of Chevron because it added eligibility requirements. Id. And, even
though the statute vested the Attorney General with full discretion to grant or deny
adjustment-of-status relief, the court concluded that the regulation could not properly
be characterized as a rule-based exercise of that discretion. Id.

      We do not believe 8 C.F.R. § 1245.1(c)(8) is properly evaluated under
Chevron's first step, given the discretionary nature of the relief available under 8
U.S.C. § 1255. While Congress surely did speak to eligibility in the statute, it left the
question whether adjustment-of-status relief should be granted to the Attorney
General's discretion. 8 U.S.C. § 1255(a) ("[t]he status of an alien who was inspected
and admitted or paroled . . . may be adjusted by the Attorney General, in his
discretion and under such regulations as he may prescribe" (emphasis added)); id.
§ 1255(i)(2) ("the Attorney General may adjust the status of the alien") (emphasis
added). Administrators vested with such discretion may exercise that discretion by

      8
        Notably, the Mouelles did not seek to adjust status under section 1255(a).
They sought to adjust under section 1255(i). Nonetheless, the reasoning of the Succar
court, if correct, is broad enough to invalidate the regulation as inconsistent with the
statutory scheme at issue.

                                          -8-
rule or on a case-by-case basis. Bellis v. Davis, 186 F.3d 1092, 1094-95 (8th Cir.
1999). And we can find no basis upon which to conclude that this regulation does not
embody the Attorney General's decision not to afford discretionary relief to the
delineated class of aliens—arriving aliens in removal proceedings. Attorney General
Reno stated this discretionary-relief basis for the regulation when it was proposed.
"[T]he Attorney General has determined that she will not favorably exercise her
discretion to adjust the status of arriving aliens who 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." 62 Fed. Reg. 444, 452 (Jan. 3, 1997). And she again stressed the
discretionary nature of status adjustments when the interim rule issued:

             Some commenters objected to the policy statement contained in
      the proposed rule that amended § [1]245.1(c)(8) and indicated that, as
      an exercise of discretion, the Attorney General would not adjust the
      status of arriving aliens . . . in proceedings under section 240 of the Act.

             ....

             In response to the commenters who suggested this policy
      exceeded the Attorney General's statutory authority, it is noted that
      section 245 of the Act [8 U.S.C. § 1255] clearly and unambiguously
      states that adjustment of status is a discretionary decision, subject to
      such regulatory limitations as the Attorney General may prescribe.

62 Fed. Reg. 10312, 10326-27 (Mar. 6, 1997). As Judge Friendly wrote with regard
to 8 U.S.C. § 1255(a), "We are unable to understand why there should be any general
principle forbidding an administrator, vested with discretionary power, to determine
by appropriate rulemaking that he will not use it in favor of a particular class on a
case-by-case basis . . . ." Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970);
see also Bellis 186 F.3d at 1095 (concluding that the Bureau of Prisons validly
exercised its discretion to grant early release by "identifying additional categories of



                                          -9-
inmates who are ineligible for the early-release program"), aff'd, Lopez v. Davis, 531
U.S. 230, 343-44 (2001).

       Even though 8 C.F.R. § 1245.1(c)(8) says that the particular class of aliens at
issue is "ineligible to apply for adjustment of status," that does not change matters.
The Succar court concluded this was of primary significance, finding that Congress
had unequivocally stated that statutorily eligible aliens must be allowed to apply for
status adjustment. 394 F.3d at 28. But why should the Attorney General be forced
to exercise his discretion through rules that speak only to the ultimate relief rather
than eligibility? If the Attorney General decided that arriving aliens in removal
proceedings will not be given adjustment-of-status relief (as she clearly did in
promulgating this rule), and if that decision does not contravene the statute (as we
conclude it does not), then it makes little sense to invalidate this regulation simply
because it speaks in terms of eligibility. See Lopez, 531 U.S. at 243-44 ("Even if a
statutory scheme requires individualized determinations, which this scheme does not,
the decisionmaker has the authority to rely on rulemaking to resolve certain issues of
general applicability unless Congress clearly expresses an intent to withhold that
authority. . . . [C]ase-by-case decisionmaking in thousands of cases each year, . . .
could invite favoritism, disunity, and inconsistency." (citations and quotations
omitted)).

        The Succar court concluded that INS v. Cardoza-Fonseca, 480 U.S. 421 (1987),
established the difference between statutory eligibility and the Attorney General's
discretion to grant relief. It then took that premise and concluded that if Congress
had spoken to eligibility, then an administrator with discretion to grant relief cannot
impose eligibility requirements that are not found in the statute. We cannot find
support for the latter premise in Cardoza-Fonseca. The Court in Cardoza-Fonseca did
emphasize the difference between eligibility and the discretionary decision to grant
relief, but it did so in a much different context than that presented here.



                                         -10-
       The BIA in Cardoza-Fonseca had construed the statutory eligibility standard
for asylum (a form of discretionary relief) as requiring the same showing—a clear
probability of persecution—as the statutory eligibility standard for withholding of
deportation (a form of relief that must be given to an eligible alien). Id. at 443. The
Court reasoned that the BIA's construction did not fit the statutes because the
difference between the nature of the relief available under each—discretionary versus
mandatory—evinced a congressional intent that the eligibility standard for
discretionary asylum would be less demanding than the eligibility standard for
mandatory withholding. Id. at 443-44. But the Court did not hold that the Attorney
General could not by regulation determine who among the class of aliens that is
statutorily eligible for discretionary relief would or would not be afforded such relief.
It simply held that the BIA's interpretation of the statute in that case failed because
Congress did not intend the heightened mandatory-withholding showing to apply to
discretionary asylum.

       This case is quite different. First, the regulation at issue 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. And, even if we take Cardoza-Fonseca as somehow relevant to our inquiry,
there is no congressional intent evinced by a similar mandatory-relief provision that
limits the Attorney General's ability to determine by regulation which statutorily
eligible aliens will get the relief that he has the power, but not the duty, to grant.

       As a rule-based exercise of the Attorney General's discretion to allow status
adjustments, we conclude section 1245.1(c)(8) of the regulations is not invalid as
contrary to the statute. This does not mean, however, that the regulation is
necessarily valid. To be valid, such gap-filling regulations must be "reasonable in
light of the legislature's revealed design." Lopez, 531 U.S. at 242 (quotation
omitted); accord Fook Hong Mak, 435 F.2d at 731 ("reasonably related to the
statutory scheme"). The class of aliens delineated by 8 C.F.R. 1245.1(c)(8) consists

                                          -11-
of (1) arriving aliens who are (2) in removal proceedings. As mentioned, arriving
aliens are aliens who seek admission to the United States at a port-of-entry. The
Attorney General's stated reasons for delineating this class of aliens clearly show that
the classification is reasonable under the statutory scheme. See 62 Fed. Reg. at
10312-13 & 10326-27. And arriving aliens' placement in removal proceedings is a
characteristic that is a reasonably sound basis for choosing not to grant relief under
8 U.S.C. § 1255(i).9 Applications for such relief would necessarily lengthen removal
proceedings (much like they have here), and expediency was one of the goals of the
1996 amendments to the Immigration and Nationality Act. See S. Rep. No. 104-249,
1996 WL 180026, at *2 (Apr. 10, 1996). Thus, we conclude the regulatory bar to
status adjustment contained in 8 C.F.R. § 1245.1(c)(8) is valid and the BIA did not
abuse its discretion by denying the Mouelles' motion to reopen on that basis.

      We have considered all of the Mouelles' other arguments that are properly
presented by their petitions for review, and we find them without merit.



      9
         The court in Succar opined that the relevant characteristic—placement in
removal proceedings—effectively barred most aliens who had been paroled from
adjusting status because most paroled aliens were in removal proceedings. 394 F.3d
at 18. Thus, the court concluded, the regulation was contrary to 8 U.S.C. § 1255(a)
because paroled aliens were among those eligible to adjust status under the statute.
As an evidentiary matter, we cannot conclude that the regulation bars most paroled
aliens from adjusting status. Unlike the court in Succar, we have not been
"informed," id., of that fact. And in this case the Attorney General cites DHS
statistics suggesting that only about two to three percent of parolees who entered the
United States in 2003 have been placed in removal proceedings. Resp. Supp. Br. at
13 n.1. In fact, the INS did not initiate removal proceedings against the Mouelles
until April 15, 1998, over ten months after the Mouelles were paroled into the United
States. Moreover, even if we assumed that most aliens paroled into the United States
were placed in removal proceedings, 8 U.S.C. § 1255 does not show a congressional
intent to vest a few, most, or all paroled aliens with the right to adjust their status.
Relief remains discretionary.

                                         -12-
III.   CONCLUSION

       Accordingly, we deny the petitions.

BYE, Circuit Judge, dissenting.

      I respectfully dissent. I would hold 8 C.F.R. § 1245.1(c)(8) is invalid for the
reasons articulated in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). Accordingly,
I would vacate the removal orders and remand for further proceedings.
                        ______________________________




                                        -13-
