                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 25, 2008
                            No. 07-12813                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A35-958-196

DONOVAN EARL CRAWFORD,


                                                                    Petitioner,


                                  versus


U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                           (February 25, 2008)


Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
      Donovan Earl Crawford appeals the determination of the Board of

Immigration Appeals (“BIA”) that he is ineligible for adjustment of status pursuant

to 8 C.F.R. § 1245.2(a)(ii). On appeal, Crawford argues that Sections 245(a) and

245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(a), (i),

permit him to adjust his status and that he meets the requirements of 8 C.F.R.

§ 1245.2(a)(ii) for an Immigration Judge (“IJ”), rather than the United States

Citizenship and Immigration Services (“USCIS”), to consider his application for an

adjustment of status. We affirm.

                         REGULATORY BACKGROUND

      “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 . . . .” 8 U.S.C. § 1255(a). To be eligible for adjustment

of status, an applicant must meet two statutory requirements: the alien must be

“eligible to receive an immigrant visa,” and an immigrant visa must be

“immediately available” at the time that the application for an adjustment of status

is filed. 8 U.S.C. § 1255(a).

      In April 2006, we invalidated 8 C.F.R. § 1245.1(c)(8), which barred arriving

aliens in removal proceedings from applying for adjustments of status. Scheerer v.

U.S. Att’y Gen., 445 F.3d 1311, 1319–1320 (11th Cir. 2006). We found that the
                                          2
statute enabling the regulation was ambiguous as to whether the Attorney General

could regulate the eligibility of aliens to apply for adjustments of status. Id. at

1321. The enabling statute, however, indicated that parolees, who qualify as

arriving aliens, would be eligible to apply for adjustments of status. Id. We held

that this intent, that aliens in removal proceedings be eligible to apply for

adjustments of status, was negated by the Attorney General’s regulation. Id. at

1322. Agreeing with the Third Circuit, we stated that “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 . . . that

essentially reverses the eligibility structure set out by Congress.” Id. Thus, we

stated that the Attorney General’s regulation was based on an impermissible

construction of the governing statute because it barred almost all paroled aliens

from eligibility. Id.

      On May 12, 2006, the Attorney General amended 8 C.F.R. § 1245.2(a)(1)(ii)

to state that in the case of an arriving alien who is placed in removal proceedings,

the IJ does not have jurisdiction to adjudicate an application for adjustment of

status unless:

             (A) The alien properly filed the application for
             adjustment of status with USCIS while the arriving alien
             was in the United States;



                                            3
             (B) The alien departed from and returned to the United
             States pursuant to the terms of a grant of advance parole
             to pursue the previously filed application for adjustment
             of status;

             (C) The application for adjustment of status was denied
             by USCIS; and

             (D) [The Department of Homeland Security] placed the
             arriving alien in removal proceedings either upon the
             arriving alien’s return to the United States pursuant to the
             grant of advance parole or after USCIS denied the
             application.

8 C.F.R. § 1245.2(a)(1)(ii). We recently upheld this regulation. Scheerer v. U.S.

Att’y Gen., Nos. 06-14192, 06-15971, 2008 WL 131466, at *5 (11th Cir. Jan 15,

2008) (“Scheerer II”).

      Further, the Attorney General’s amended rule is applicable to all cases

pending administrative or judicial review on or after May 12, 2006, as is the case

here. Eligibility of Arriving Aliens in Removal Proceedings to Apply for

Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment

of Status. 71 Fed. Reg. 27,588 (May 12, 2006); Scheerer II, 2008 WL 131466, at

*2.

                           FACTUAL BACKGROUND

      Crawford is a native and citizen of Jamaica who was at one point apparently

a legal permanent resident of the United States. He abandoned that status when he

returned to Jamaica in 1992 but was paroled into the United States some years later
                                          4
to pursue an adjustment of his status pursuant to an I-130 Petition for Alien

Relative filed by his first spouse, a United States citizen. Crawford claims that the

I-130 petition was approved and that an immigration officer approved the

adjustment of his status. He claims, however, that when he checked in on the

progress of his petition, he was told that his file had been lost. At the final of

several follow-up meetings, he apparently informed an immigration officer that he

was no longer married to his first wife, at which point his application for an

adjustment of his status was denied. He was subsequently placed in removal

proceedings.

      On June 9, 2003, Crawford was served with a Notice to Appear, charging

him under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as being an immigrant at the time of his

application for admission whose visa had been issued without compliance with the

provisions of Section 203 of the INA. On February 27, 2004, Crawford’s

daughter, a United States citizen, filed an I-130 petition on his behalf. At a hearing

on April 29, 2004, Crawford denied that he was removable on the basis of the

allegedly approved application for adjustment of his former wife. The Department

of Homeland Security allowed Crawford to conditionally concede that he was

removable, subject to a later determination that he had in fact been approved for an

adjustment. On the basis of that admission, the IJ found Crawford removable.



                                            5
      The petition of Crawford’s daughter was approved on February 11, 2005,

and on May 12, 2005, Crawford filed an application to adjust his status with the

USCIS. He then appeared before an IJ for a hearing on the merits of his

application wherein he asked the IJ to renew his application for an adjustment of

his status on the basis of the newly filed I-130 petition. An Immigration and

Customs Enforcement officer argued that Crawford was not eligible to argue for an

adjustment of his status because he was an arriving alien in a removal proceeding

and that the I-130 petition filed by his daughter was separate from that filed by his

first wife. The IJ agreed on the basis of the bar on such applications by arriving

aliens which we later held invalid and which was later amended by the Attorney

General. Crawford filed a notice of appeal with the BIA. On December 11, 2006,

after the Attorney General amended the relevant regulation as discussed above,

Crawford, not having filed an appellate brief, asked the BIA to remand his case to

the IJ for consideration of his application in light of the regulatory amendment.

The BIA declined to do so, concluding that Crawford did not fit within the narrow

exception that had been added to the regulation that originally barred Crawford’s

application. He appeals from that determination.

                             STANDARD OF REVIEW

      When, as here, the BIA issues its own opinion without expressly adopting

the IJ’s decision, we review only the BIA’s decision. Morales v. U.S. Att’y Gen.,
                                           6
488 F.3d 884, 890 (11th Cir. 2007). To the extent that the BIA’s decision was

based on a legal determination, we review de novo. Mohammed v. Ashcroft, 261

F.3d 1244, 1247–48 (11th Cir. 2001). We review the BIA’s factual determinations

under the substantial-evidence test, and we “must affirm the BIA’s decision if it is

‘supported by reasonable, substantial, and probative evidence on the record

considered as a whole.’” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–1284 (11th

Cir. 2001) (quoting Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)).

      We review our subject matter jurisdiction de novo. Ortega v. U.S. Att’y

Gen., 416 F.3d 1348, 1350 (11th Cir. 2005). Failure to raise an issue before the

BIA leaves us without jurisdiction to hear the issue. Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250–1251 (11th Cir. 2006) (finding that the petitioner

failed to challenge adverse credibility finding in both his notice of appeal and his

brief to the BIA). “When an appellant fails to offer argument on an issue, that

issue is abandoned.” Sepulveda v. U.S. Att’y Gen, 401 F.3d 1226, 1228 n.2 (11th

Cir. 2005). Section 242(a)(2)(B)(i) of the INA “precludes appellate review of

discretionary decisions, but does not preclude review of non-discretionary legal

decisions that pertain to statutory eligibility for discretionary relief.” Gonzalez-

Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Further, we

have jurisdiction to consider questions of law raised in petitions challenging

removal orders. 8 U.S.C. § 1252(a)(2)(D).
                                           7
                                        DISCUSSION

       The BIA did not err in determining that Crawford is ineligible for an

adjustment of status under the Attorney General’s amended regulation, 8 C.F.R.

§ 1245.2(a)(1)(ii). Crawford was paroled into the United States and later placed

into removal proceedings in 2003 and is, therefore, an arriving alien in removal

proceedings. The IJ, and thus, the BIA, do not have jurisdiction to consider

Crawford’s application for an adjustment of status unless he fits within the narrow

exception to the Attorney General’s regulation under 8 C.F.R. § 1245.2(a)(1)(ii).1

       Crawford does not fit within the exception because he had not been paroled

into the United States to pursue the application for adjustment initiated by his

daughter’s I-130 petition. Rather, he had been paroled in to pursue the petition for

adjustment initiated by the I-130 petition filed by his former wife, which was

denied when he informed an immigration officer that he was divorced.

       Crawford alternatively argues that he was the recipient of an I-130 petition

filed before April 30, 2001, and therefore that he should have been “grandfathered-

in” under Section 245(i) of the INA, which provides a separate avenue for certain

1
  In light of our affirmance of the BIA’s determination that Crawford does not fit within the
exception of 8 C.F.R. § 1245.2(a)(1)(ii), it appears that Crawford, in order to have his
application for an adjustment properly considered, must file it with the USCIS, which “has
jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the
immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).”
8 C.F.R. § 245.2(a)(1). It is of note, however, that Crawford has been found removable on the
basis of his conditionally offered admission of removability. Presumably the appropriate
authorities will stay Crawford’s removal pending the USCIS’s consideration of his application.
                                                  8
aliens to petition for an adjustment of status. The government responds that we

lack jurisdiction to consider the argument as Crawford abandoned it by failing to

raise it before the BIA. Crawford’s notice of appeal to the BIA properly raises the

argument. See, e.g., Amaya-Artunduaga, 463 F.3d at 1250 (“In the instant case,

Amaya failed to challenge the IJ’s adverse credibility determination in both his

notice of appeal and brief before the BIA.”) (emphasis added). Jurisdiction is

therefore proper; however, the BIA did not expressly address the argument.

      The Supreme Court has explained that in cases on appeal where the BIA has

not addressed a particular issue that a petitioner put before it, “the proper course,

except in rare circumstances, is to remand to the agency for additional

investigation or explanation.” INS v. Orlando Ventura, 537 U.S. 12, 16 (2002)

(internal quotation marks omitted). In Calle v. U.S. Attorney General, 504 F.3d

1324, 1330 (11th Cir. 2007), we found that “rare circumstances” were present in an

appeal because the issue the BIA failed to address was legal in nature and required

an “objective, procedural inquiry” concerning whether the petitioner specified

errors of law and supported them with pertinent authority or did not. Thus, we felt

comfortable deciding an issue left unresolved by the BIA in the first instance. Id.

      We feel similarly comfortable here. Although the BIA did not expressly

determine whether Section 245(i) of the INA affords relief to Crawford, it did in

essence decide as much. It concluded that Crawford is barred from applying to
                                           9
adjust his status before an IJ because he is an arriving alien in removal proceedings

who does not fit within a narrow exception to the bar. We see no reason why that

legal bar to his application for an adjustment of status, which the BIA applied to

his claim under Section 245(a) of the INA, does not also bar his application under

Section 245(i), which is simply an alternative method for aliens to seek similar

relief. Although Crawford treats Section 245(i) as a separate form of relief, 8

C.F.R. § 1245.2(a)(1)(ii) applies to arriving aliens in removal proceedings who

attempt to apply for adjustment of status.

      Finally, Crawford abandoned any argument relating to his motion to remand

by failing to raise it in his initial brief. Accordingly, we deny the petition.

      PETITION DENIED.




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