                      United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 05-1405
                                 ________________

Charles Geach,                             *
                                           *
              Appellant,                   *
                                           *
      v.                                   *
                                           *
Michael Chertoff,1 Director of the         *      Appeal from the United States
Department of Homeland                     *      District Court for the District of
Security; Mark Cangemi, District           *      Minnesota.
Director of the Bureau of Customs          *
and Immigration Enforcement;               *
Alberto Gonzales, United States            *
Attorney General, Department of            *
Justice,                                   *
                                           *
               Appellees.                  *

                                 ________________

                            Submitted: September 15, 2005
                                Filed: March 3, 2006
                                 ________________

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.
1




      1
         Pursuant to Fed. R. App. P. 43(c)(2), Michael Chertoff is substituted for Tom
Ridge.
        Charles Geach (“Geach”), a citizen of the United Kingdom, was charged as
inadmissible due to two foreign convictions. He was placed in exclusion proceedings
because he last had entered the United States pursuant to advance parole. Throughout
his administrative hearings, Geach was denied the opportunity to apply for suspension
of deportation pursuant to 8 U.S.C. § 1254 (repealed 1996).2 After he was ordered
excluded and had exhausted his administrative appeals, the district court3 denied his
petition for habeas corpus relief. On appeal, Geach argues that the district court erred
in this denial because the advance parole regulation that precludes him from applying
for suspension of deportation is ultra vires to § 1254 and violates his right to due
process and equal protection. For the reasons discussed below, we affirm.

I.    BACKGROUND

       Geach came to the United States for the first time in 1984 on a B-2 visitor visa.
He married a United States citizen eight days after his arrival and filed an application
to adjust his status to permanent resident. During the pendency of his application,
Geach traveled to England on three occasions: in 1985, 1986, and 1991. Before each
trip, he obtained a grant of advance parole from the former Immigration and
Naturalization Service (“INS”) that permitted him to travel outside the United States
with the assurance that he would be allowed to reenter and not be deemed to have
abandoned his application for adjustment of status. The advance parole documents
issued to Geach for his second and third trips included the following warning: “if your
application for adjustment of status is denied, you will be subject to exclusion
proceedings.”



      2
      We use the statute as it existed in 1994, the year of Geach’s first exclusion
proceeding. See discussion infra Section II.B.
      3
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
                                          -2-
      In 1992, the INS denied Geach’s application for permanent residency because
he had two foreign convictions for possession of marijuana prior to his arrival in 1984.
See 8 U.S.C. § 1182(a)(2)(A)(i). The INS placed Geach in exclusion proceedings
because he last reentered the United States under a 1991 grant of advance parole
associated with his third trip to England.

      In 1994, the Immigration Judge (“IJ”) at Geach’s first exclusion hearing granted
Geach’s request to terminate exclusion proceedings so he could apply for suspension
of deportation. The INS appealed this decision, however, and the Board of
Immigration Appeals (“BIA”) reinstated Geach’s placement in exclusion proceedings
because of his advance parole status. In 1999, the matter was remanded to the IJ, who
excluded Geach and denied his request to seek suspension of deportation. The BIA
affirmed these rulings.

       In 2003, Geach petitioned the district court for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241.4 He argued that the regulation preventing him from seeking
suspension of deportation was ultra vires to the suspension of deportation statute and
that his placement in exclusion proceedings violated his constitutional right to due
process and equal protection. The district court denied Geach’s petition.

II.   DISCUSSION

      A. Standard of Review

     This Court reviews de novo a question of law in a denial of a habeas petition,
Grove v. Fed. Bureau of Prisons, 245 F.3d 743, 746 (8th Cir. 2001), but must give

      4
        Geach properly sought habeas corpus instead of directly appealing his
exclusion: “any alien against whom a final order of exclusion has been made . . . may
obtain judicial review of such order by habeas corpus proceedings and not otherwise.”
8 U.S.C. § 1105a (repealed 1996).
                                          -3-
substantial deference to the INS’s interpretation of federal statutes and regulations, see
INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).

      B. Applicable Law

       Because proceedings in this case began prior to April 1, 1997, we apply the
transitional rules of the Illegal Immigrant Reform and Immigration Responsibility Act
(IIRIRA) and, therefore, apply the provisions of the former Immigration and
Naturalization Act (INA) to the merits of this case.5 See, e.g., Sol v. INS, 274 F.3d
648, 650 (2d Cir. 2001); see generally 8 U.S.C. § 1101.

      C. Ultra Vires

      Geach argues that the advance parole regulation, 8 C.F.R. § 245.2(a)(4)(ii)
(1991) (amended 1996), is ultra vires to the statute that establishes suspension of
deportation, 8 U.S.C. § 1254, because the advance parole regulation denies suspension
of deportation to aliens admitted on advance parole who otherwise meet the statutory
requirements of § 1254. We disagree.

      Under the INA, aliens who arrive at the United States border are subject to
exclusion proceedings while aliens who are physically present in the United States are
subject to deportation proceedings. See 8 U.S.C. § 1251(a) (1991) (current version
at 8 U.S.C. § 1226). One exception to this general rule is the concept of “parole.”
Aliens who are physically present in the United States pursuant to a grant of parole
are not considered “admitted” for purposes of deportation proceeding eligibility. 8


      5
        The Government argues that the IIRIRA’s “stop-time” rule precludes Geach
from obtaining his desired ultimate relief, suspension of deportation. See 8 U.S.C. §
1229b(d)(1); Afolayan v. INS, 219 F.3d 784, 787-89 (8th Cir. 2000). Because we
affirm the district court on other grounds, we do not address the question of whether
the stop-time rule precludes such relief.
                                           -4-
U.S.C. § 1182(d)(5)(A). The Attorney General created “advance parole” to allow
aliens who are present in the United States and have applied for an adjustment of
status to travel outside the United States without abandoning their applications. 8
C.F.R. § 245.2(a)(4)(ii). A potential consequence of advance parole, however, is
mandatory placement in exclusion proceedings. “If the application [for adjustment
of status] of an individual granted advance parole is subsequently denied, the applicant
will be subject to the exclusion provisions of . . . the Act. No alien granted advance
parole and inspected upon return shall be entitled to a deportation hearing.” 8 C.F.R.
§ 245.2(a)(4)(ii). Thus, a consequence of placement in exclusion proceedings is the
inability to apply for suspension of deportation. Leng May Ma v. Barber, 357 U.S.
185, 187 (1958); see also Sherifi v. INS, 260 F.3d 737, 740 (7th Cir. 2001)
(recognizing the “longstanding principle that persons in exclusion proceedings prior
to April 1, 1997 are ineligible to apply for suspension of deportation”).

        The advance parole regulation is not ultra vires to the suspension of deportation
statute because the Attorney General’s ability to suspend deportation is discretionary.
8 U.S.C. § 1254 (“the Attorney General may, in his discretion, suspend deportation
and adjust the status to that of an alien lawfully admitted for permanent residence”
(emphasis added)). Given this broad discretion Congress granted to the Attorney
General with regard to suspension of deportation, the Attorney General’s decision to
categorically exclude aliens under advance parole from suspension of deportation
relief is not outside the scope of § 1254. See Leng May Ma, 357 U.S. at 186 (holding
that aliens who are paroled into the United States are not entitled to deportation
proceedings, only exclusion proceedings); Barney v. Rogers, 83 F.3d 318, 321 (9th
Cir. 1996) (holding that an alien with a pending adjustment application was placed
properly in exclusion proceedings following a grant of advance parole). “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



                                           -5-
. . . .” Mouelle v. Gonzalez, 416 F.3d 923, 929 (8th Cir. 2005) (quoting Fook Hong
Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970)).

       Geach raises a number of ultra vires arguments on appeal to establish that
Congress did not intend for aliens to be categorically denied suspension of deportation
when they otherwise satisfy the statutory prerequisites of § 1254. These arguments
fail, however, because they rest on a false premise. Aliens are not automatically
eligible for suspension of deportation just because they could satisfy the prerequisites
if allowed to apply. Geach overlooks the fact that the inquiry into an alien’s eligibility
for suspension of deportation is subordinate to the Attorney General’s overriding
discretion to determine who is eligible for such suspension. See Patel v. McElroy, 143
F.3d 56, 58 (2d Cir. 1998) (holding that an alien in exclusion proceedings is not
entitled to apply for suspension of deportation).




      6




                                           -6-
                                   onsistent with the advance parole regulation, the
advance parole document warned Geach that his travel to England could result in
exclusion proceedings, and he was placed in those exclusion proceedings when his
application for adjustment was denied. Geach’s resultant inability to apply for
suspension of deportation was not ultra vires to the Attorney General’s broad statutory
discretion with respect to suspension of deportation.

      D. Equal Protection

       Geach argues that his inability to seek suspension of deportation violates his
right to equal protection. See Plyler v. Doe, 457 U.S. 202, 210 (1982) (holding that
aliens are protected by the Fifth Amendment’s equal protection guarantee). To
establish an equal protection violation, Geach must identify a class of similarly
situated persons who are treated dissimilarly. See Anderson v. Cass County, Mo., 367
F.3d 741, 747 (8th Cir. 2004). Disparate treatment of similarly situated aliens will be
upheld, however, if the Government has a rational basis for its classifications. See,
e.g., Vasquez-Velezmoro v. INS, 281 F.3d 693, 697 (8th Cir. 2002).

      As a threshold matter, the Government argues that we do not have subject-
matter jurisdiction over this constitutional issue because Geach failed to exhaust
administrative remedies on this issue. This is an issue of first impression for this
Court. We are prohibited from exercising subject-matter jurisdiction when an alien




                                          -7-
fails to exhaust administrative remedies “unless the petition presents grounds which
the court finds could not have been presented in such prior proceeding.” 8 U.S.C. §
1105a(c). We agree with the circuits that have considered this issue and hold that we
have subject-matter jurisdiction over aliens’ unexhausted constitutional claims unless
the claims concern procedural errors correctable by the administrative tribunal. See,
e.g., Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993); Ravindran v. INS,
976 F.2d 754, 762-63 (1st Cir. 1992); Bagues-Valles v. INS, 779 F.2d 483, 484 (9th
Cir. 1985) (holding that aliens are not precluded from raising due process claims on
appeal that were not raised during administrative proceedings because the BIA has no
jurisdiction to adjudicate constitutional issues). Geach’s equal protection claim does
not concern a procedural error. See Ravindran, 976 F.2d at 762-63 (suggesting that
“challenging the constitutionality of . . . statutes [or] regulations” is not a procedural
error). Therefore, we consider the merits.

       Geach argues that he is similarly situated to aliens who reenter the United States
without advance parole and that the Government failed to provide a rational basis for
allowing those aliens to seek suspension of deportation but not allowing him to apply.7
Aliens who attempt to legally reenter the United States without advance parole are
treated as applicants for admission, 8 U.S.C. § 1225(a), thereby subjecting them to
exclusion proceedings and rendering them ineligible for suspension of deportation.
Therefore, the only aliens who reenter without advance parole and are allowed to
apply for suspension of deportation are aliens who illegally reenter the United States.

      7
        In earlier proceedings, Geach argued that he was similarly situated to aliens
who apply for status adjustments and do not depart the United States during the
pendency of their application. Geach abandoned this argument on appeal. His
fleeting reference to “aliens who failed to depart” in the last sentence of the argument
section in his opening brief is insufficient to constitute an appellate “argument.” See
Fed. R. App. P. 28(a)(9)(A) (requiring appellants’ briefs to contain arguments “with
citations to the authorities and parts of the record on which the appellant relies”);
United States v. Zavala, 427 F.3d 562, 565 (8th Cir. 2005) (holding an argument
abandoned despite a brief mention of the issue in appellant’s brief).
                                           -8-
Geach is not similarly situated to these illegal aliens because they are subject to
criminal charges and other adverse consequences. See, e.g., 8 U.S.C. § 1326
(establishing fines and imprisonment for illegal reentry); 8 C.F.R. 245.2(a)(4)(ii)
(deeming aliens who reenter illegally to have abandoned their applications for
adjustment of status); cf. Dimenski v. INS, 275 F.3d 574, 578 (7th Cir. 2001) (listing
benefits of advance parole).

       Even if Geach was similarly situated to aliens who reenter illegally, any
difference in treatment of these aliens is justified by the government’s rational basis
of “efficient administration of the immigration laws at the border.” Landon v.
Plasencia, 459 U.S. 21, 34 (1982). “The authority of Congress and the executive
branch to regulate the admission and retention of aliens is virtually unrestricted.”
Francis v. INS, 532 F.2d 269, 273 (2d Cir. 1976). “Rational basis review does not
require us to identify the legislature’s actual rationale for the distinction; rather, we
will uphold the statute if ‘there are plausible reasons for Congress’ action.’” Hamama
v. INS, 78 F.3d 233, 237 (6th Cir. 1996) (quoting United States R.R. Retirement Bd.
v. Fritz, 449 U.S. 166, 179 (1980)). There are plausible reasons for establishing
different administrative procedures for aliens depending on the legality of their
reentries. For example, it would be rational to place paroled aliens in exclusion
proceedings to offset the administrative burdens created by their departures during the
pendency of their adjustment applications. Cf. Skelly v. INS, 168 F.3d 88, 91-92 (2d
Cir. 1999) (holding that conservation of government resources is a rational basis for
differing procedures for aliens in exclusion proceedings and aliens in deportation
proceedings).

      E. Due Process

       Geach alleges generally that his inability to apply for suspension of deportation
violates due process because his long-time residency in the United States creates a
liberty interest in continuing to reside in the United States. Geach does not adequately

                                           -9-
develop a due process argument in his brief.8 See Lopez v. Heinauer, 332 F.3d 507,
512 (8th Cir. 2003) (“To demonstrate a violation of due process, an alien must
demonstrate both a fundamental procedural error and that the error resulted in
prejudice.”). However, we agree with the district court that Geach’s placement in
exclusion proceedings satisfies due process. See Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 212 (1953); United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned.”); Borrero v. Aljets, 325 F.3d
1003, 1007 (8th Cir. 2003) (holding that regulations governing the parole of aliens do
not violate the Fifth Amendment’s Due Process Clause). Geach is entitled to adequate
notice and a fair hearing. Woodby v. INS, 385 U.S. 276, 286 (1966). He received
both. See Nwandu v. Crocetti, 8 Fed. Appx. 162, 165-66 (4th Cir. 2001) (unpublished
per curiam) (holding that advance-parole form provides adequate notice of possible
placement in exclusion proceedings). His placement in an exclusion hearing rather
than a deportation hearing does not violate due process.

III.   CONCLUSION

       For the reasons set forth above, we affirm.

BRIGHT, Circuit Judge, dissenting.

       It has been said that there are ten million illegal aliens residing in this country
as of 2004. GAO, Immigration Enforcement: Weaknesses Hinder Employment
Verification and Worksite Enforcement Efforts, at *1 (Aug. 2005), available at
www.gao.gov/new.items/d05813.pdf. That is a sad state of affairs and something
needs to be done to resolve this problem. However, Charles Geach is not part of the

       8
        Geach raised more detailed due process arguments in earlier proceedings and
in his reply brief. However, he abandoned such arguments on appeal by failing to
raise them in his opening brief. See Fed. R. App. P. 28(a)(9); supra note 6.
                                           -10-
problem. Geach entered this country in 1984 on a visitor visa, married an American,
and filed an application to adjust his status to permanent residency. His application
remained pending for eight years. During that time, Geach had three American
children with his American wife, worked to support his family, paid taxes, and
followed the laws of this country. Today, Geach has lived in this country for over
twenty-one years, has a fourth American child, and owns a home with his wife. He
continues to work, pay taxes, and obey the law. Geach, however, has lost the
opportunity to remain in this country for a questionable reason. Geach made brief
visits to see his parents in England in 1985, 1986, and 1991, with each of the three
visits lasting less than thirty days. Because of those visits coupled with a prior, very
minor, criminal record in his youth, Geach finds himself banned from remaining with
his wife and children in this country. Yet had he not visited his parents, he would
have a good opportunity of remaining here.

      Let me explain.

       When Geach obtained permission from the Attorney General to visit his parents
in England, he received advance parole travel documents that permitted him to return
to this country. However, under the INS’s advance parole regulation, 8 C.F.R.
§ 245.2(a)(4)(ii), an alien who travels under advance parole is placed in exclusion
proceedings when the INS denies the alien’s adjustment application. See Slip Op. at
5-6. In 1992, the INS denied Geach’s adjustment application and placed him in
exclusion proceedings because, before coming to this country, Geach incurred two
convictions for possessing marijuana as a young man in his twenties. See 8 U.S.C.
§ 1182(a)(2)(A)(i) (excluding aliens with two or more controlled substance
convictions from admission into the United States). Suppose Geach had not traveled
to visit his parents, then he would have been placed in deportation proceedings
because he entered this country under a visa in 1984. See Succar v. Ashcroft, 394 F.3d
8, 12-13, 15-16 (1st Cir. 2005) (explaining that before 1996 immigration reform,
aliens who made an entry into the United States were subject to deportation

                                          -11-
proceedings while aliens who had not made an entry were subject to exclusion
proceedings, and aliens paroled into the United States were treated as aliens who had
not entered and therefore subject to exclusion proceedings). In deportation
proceedings, Geach would have an opportunity to remain in this country despite his
prior marijuana convictions by applying for suspension of deportation under 8 U.S.C.
§ 1254.9

       Congress passed the suspension of deportation statute to afford some aliens
relief based on the hardship that deportation would cause to their families in the
United States, but made this relief available only in deportation proceedings. To
qualify for this relief, Geach would need to show his deportation would cause extreme
hardship to his American wife and children. He would also need to show good moral
character in this country for at least seven years. See infra n.4 (setting forth the
eligibility criteria for suspension of deportation applicable to Geach, § 1254(a)(1),
(b)(2)). Favorable factors that would support the Attorney General’s grant of an
indefinite stay include: Geach’s age (fifty-two), his long duration in the United States
(twenty-one years), his strong and continuing marriage to his United States citizen
wife (Elizabeth), his four United States citizen children (Christopher, James, Lucy,
and Emma), his steady employment to support his family, and his following the laws
of this country for over twenty-one years.

       As I explain below, the regulation placing Geach in exclusion proceedings
conflicts with the intent of Congress and is invalid as applied to Geach. The


      9
       In fact, the immigration judge initially terminated exclusion proceedings “to
allow Mr. Geach the opportunity to make an application for suspension of
deportation,” reasoning that his trips to see his parents in England were “brief, casual
and innocent.” Add. at 67-68. The Board of Immigration Appeals reversed and
ordered that Geach be placed back in exclusion proceedings without the opportunity
of suspension of deportation in accordance with the terms of the advance parole
regulation. Add. at 62-64.
                                          -12-
suspension of deportation statute gives the Attorney General discretion in deciding
which, if any, aliens satisfying the statutory eligibility criteria should nonetheless be
denied suspension of deportation. See infra n.4 (setting forth the text of § 1254(a)).
However, the Attorney General’s discretion under this statute is not without limits.
      The statutory structure of setting forth eligibility criteria and giving the
Attorney General discretion to grant or deny relief to qualifying aliens is common to
many forms of immigration relief. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987),
discussed the concept of discretion granted the Attorney General in certain
immigration matters. The Court commented:

      This vesting of discretion in the Attorney General is quite typical in the
      immigration area, see, e.g., INS v. Jong Ha Wang, 450 U.S. 139, 101 S.
      Ct. 1027, 67 L.Ed.2d 123 (1981). If anything is anomalous, it is that the
      Government now asks us to restrict its discretion to a narrow class of
      aliens. Congress has assigned to the Attorney General and his delegates
      the task of making these hard individualized decisions; although
      Congress could have crafted a narrower definition, it chose to authorize
      the Attorney General to determine which, if any, eligible refugees should
      be denied asylum.

Id. at 444-45.

       In Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), the First Circuit considered
the scope of the Attorney General’s delegated authority under the adjustment of status
statute, 8 U.S.C. § 1255.10 The statute included aliens paroled into this country among


      10
        The court quoted the applicable text of Section 1255(a):

             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
                                          -13-
the class of aliens eligible for adjustment of status. Id. at 14. However, the INS later
promulgated a regulation, 8 C.F.R. § 245.1(c)(8), that made “[a]ny arriving alien who
is in removal proceedings” ineligible for adjustment of status.11 Id. at 17. The
appellant argued that the regulation was contrary to Section 1255(a) because it would
have the effect of denying adjustment of status to most paroled aliens. Id. at 18, 21.
The court’s opinion further explained that “Parolees, although they are physically
present in the United States, are treated as if they were at the border seeking
admission. . . . [Thus, as] arriving aliens, parolees are subject to removal proceedings[]
‘if the examining officer determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted . . . .’ 8 U.S.C. § 1225(b)(2)(A).” Id. at 16.



       “The Attorney General defend[ed] the regulation, arguing that 8 U.S.C. §
1255(a) expressly states that the decision to grant adjustment of status is subject to the
Attorney General’s discretion and that the regulation is no more than a valid exercise
of that discretion.” Id. at 21. The First Circuit disagreed and held “that the regulation
is contrary to the language and intent of the statute, 8 U.S.C. § 1255(a).” Id. at 9.
Significantly, the court reasoned:



      The mere fact that a statute gives the Attorney General discretion as to
      whether to grant relief after application does not by itself give the
      Attorney General the discretion to define eligibility for such relief. . . .
      [T]he statute is not silent – it defines persons who have parole status as


      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.

Succar, 394 F.3d at 24.
      11
        In 1996, “Congress . . . eliminated deportation and exclusion proceedings and
replaced them with removal proceedings . . . .” Id. at 13.
                                           -14-
       eligible for adjustment of status and does not carve out an exception for
       parolees who are in removal proceedings.

             ....

             The statutory scheme reflects Congress’s careful balancing of the
       country’s security needs against the national interests Congress wished
       to advance through adjustment of status proceedings. The regulation
       upsets the balance Congress created.

              Checking our construction of the statute against the legislative
       history of section 1255, we find the regulation to be inconsistent with the
       intent expressed in the statute. In 1960, when Congress included paroled
       aliens as aliens who are eligible for adjustment of status relief through
       section 1255, it did so to solve certain problems . . . . The effect of the
       regulation is to re-institute the problems Congress wished to solve.
       Further, until the 1997 promulgation of the regulation, the Attorney
       General had consistently interpreted section 1255 in a manner consistent
       with the statute and the legislative history and inconsistent with the 1997
       regulation.

Id. at 10.

       [B]ecause eligibility is explicit in this statute, the Attorney General
       cannot categorically refuse to exercise discretion favorably for classes
       deemed eligible by the statute.

Id. at 29 n.28.

       Succar is good authority to grant relief to Geach. Rather than follow Succar,
the majority in this case follows the reasoning of Mouelle v. Gonzales, 416 F.3d 923,
927-30 (8th Cir. 2005), which expressly disagreed with Succar. Confronted with a
similar question as the First Circuit, a majority in Mouelle concluded that the Attorney
General’s discretion included the authority to make classes of aliens ineligible even
if they are eligible under the statutory criteria. See id. at 929. (“If the Attorney


                                          -15-
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.”). “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. . . . Administrators vested with such discretion may exercise that
discretion by rule or on a case-by-case basis.” Id. at 928. Judge Bye dissented in
Mouelle “for the reasons articulated in Succar . . . .” Id. at 931.

       Since the Mouelle decision, two other circuits have considered a similar issue.
In Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir. 2005), the Ninth Circuit “agree[d]
with the analysis and holding of Succar[, stating] that because the ‘regulation
redefines certain aliens as ineligible to apply for adjustment of status . . . whom a
statute, 8 U.S.C. § 1255(a), defines as eligible to apply[,]’ the regulation is invalid.”
(quoting Succar, 394 F.3d at 9). “[W]e agree with the First Circuit that Congress has
spoken to the precise issue of who is eligible to apply for adjustment of status and that
8 C.F.R. § 245.1(c)(8) is directly contrary to this Congressional determination.” Id.
at 670-71. “[W]e find the reasoning of Succar more persuasive and therefore reject
the approach taken by the Mouelle court.” Id. at 668 n.6.

       The Third Circuit also reached the conclusion that the regulation is contrary to
the statute, but on the ground that “the regulation is not based on a permissible
statutory reading.” Zheng v. Gonzales, 422 F.3d 98, 103, 119-20 (3d Cir. 2005).

      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

                                           -16-
      forecloses this statutory eligibility, the regulation is not based on a
      permissible statutory reading.

Id.

         The background in Mouelle is quite different than that in the present case. The
Mouelles overstayed their nonimmigrant visas. 416 F.3d at 924. The Mouelles later
filed an application for asylum and withholding of removal, then left the United States
on advance parole and did not have proper documents to reenter the United States.
Id. at 924-25. The INS commenced removal proceedings following their return to this
country. Id. The immigration judge denied the Mouelles’ claims for asylum and
withholding of removal, and the BIA affirmed. Id. The Mouelles then sought to
reopen their removal proceedings and remand to the immigration judge so that they
might apply for adjustment of status, which the BIA denied. Id. at 926. On appeal to
this court, the Mouelles, among other things, argued that the BIA improperly denied
their motion to reopen because the BIA determined they were considered arriving
aliens. Id. at 926-27. The court noted that 8 C.F.R. § 1245.1(c)(8) made ineligible for
adjustment of status “[a]ny arriving alien who is in removal proceedings pursuant to
. . . section 240 of the Act [8 U.S.C. § 1229a].” Id. at 927. The court asserted that,
because the statute granted full discretion to the Attorney General to grant or deny
relief, the Attorney General could by regulation deny relief by rule, as well as case-by-
case adjustment. Id. at 928-30. However, Mouelle is different on its facts and does
not interpret the same statute and regulation as in the present case. Thus, if its
reasoning is subject to question, its rational need not bind this panel.



       The advance parole regulation, 8 C.F.R. § 245.2(a)(4)(ii), is contrary to the
suspension of deportation statute, 8 U.S.C. § 1254. Section 1254 shows Congress’s
intent that aliens would not become ineligible for suspension of deportation based on
“brief, casual, and innocent” trips abroad. To be eligible under the suspension of
deportation statute, an alien must “ha[ve] been physically present in the United States

                                          -17-
for a continuous period of not less than seven years immediately preceding the date
of such application . . . .” § 1254(a). The Supreme Court decided in INS v.
Phinpathya, 464 U.S. 183, 196 (1984), that any travel abroad during the seven-year
period would make an alien ineligible for suspension of deportation. Congress
responded, amending the statute to add: “An alien shall not be considered to have
failed to maintain continuous physical presence in the United States . . . if the absence
from the United States was brief, casual, and innocent and did not meaningfully
interrupt the continuous physical presence.” § 1254(b)(2). The legislative history to
the amendment also evinces Congress’s intent. See H.R. Rep. No. 99-682(I), at 78,
reprinted in 1986 U.S.C.C.A.N. 5649, 5682 (“The Committee Amendment relaxes the
recent Supreme Court interpretation with respect to the seven year ‘continuous
physical’ residence requirement to qualify for suspension of deportation . . . . That
decision [INS v. Phinpathya, 464 U.S. 183 (1984)] held that any departure from the
U.S. during the seven year period was interruptive of the residence requirement, thus
making the alien ineligible for relief. This Amendment relaxes the residence
requirement in the case of a ‘brief, casual, and innocent’ departure from the U.S.”).
Further, the suspension of deportation statute reveals a carefully drafted legislative
scheme consisting of specific eligibility criteria and exceptions to those criteria.12

      12
        Section 1254 read:

      (a) Adjustment of status for permanent residence; contents

              As hereinafter prescribed in this section, the Attorney General
      may, in his discretion, suspend deportation and adjust the status to that
      of an alien lawfully admitted for permanent residence, in the case of an
      alien (other than an alien described in section 1251(a)(4)(D) of this title)
      who applies to the Attorney General for suspension of deportation and–
      (1) is deportable under any law of the United States except the provisions
      specified in paragraph (2) of this subsection; has been physically present
      in the United States for a continuous period of not less than seven years
      immediately preceding the date of such application, and proves that
      during all of such period he was and is a person of good moral character;
                                          -18-
Congress did not give the Attorney General the discretion to undo this scheme and the
criteria determining eligibility.

       The majority concedes the regulation would directly contravene § 1254 if it
“den[ied] Geach an opportunity to apply for suspension of deportation merely because
of his brief trips abroad . . . .” Slip Op. at 6. In the majority’s view, however, the
advance parole regulation is permissible because it “granted Geach the

benefit of making those trips without abandoning his application for adjustment of
status to permanent resident . . . .” Id.

        I disagree with this analysis. In my view, the advance parole regulation made
Geach ineligible for suspension of deportation based on his brief, casual, and innocent
trips to England. Congress, in amending the suspension statute, intended that travel
of this character would not make an alien ineligible for relief. Geach traveled using


      and is a person whose deportation would, in the opinion of the Attorney
      General, result in extreme hardship to the alien or to his spouse, parent,
      or child, who is a citizen of the United States or an alien lawfully
      admitted for permanent residence;
      (2) is deportable under paragraph (2), (3), or (4) of section 1251(a) of
      this title; has been physically present in the United States for a
      continuous period of not less than ten years immediately following the
      commission of an act, or the assumption of a status, constituting a
      ground for deportation, and proves . . . .

      ....

      (b) . . . (2) An alien shall not be considered to have failed to maintain
      continuous physical presence in the United States under paragraphs (1)
      and (2) of subsection (a) if the absence from the United States was brief,
      casual, and innocent and did not meaningfully interrupt the continuous
      physical presence.


                                         -19-
advance parole and the regulation placed him in exclusion proceedings on rejection
of his adjustment application. See Slip Op. at 5. Alternatively, if Geach had traveled
without advance parole and presented himself for inspection on his return from
England, he still would have been placed in exclusion proceedings. See Slip Op. at
8. Thus, the regulation assured that the only way Geach could preserve his right to a
suspension of deportation hearing was if he did not visit his parents during the eight
years his adjustment application remained pending before the INS.

       No individual discretion exists as to those aliens who have traveled abroad
under advance parole, such as Geach. The advance parole regulation frustrates the
purpose of the suspension of deportation statute to alleviate the extreme hardships that
can be created by deporting an alien whose family and whole life is here in the United
States. The regulation also frustrates the intent of Congress that an alien could take
a brief, casual, and innocent trip abroad and remain eligible for suspension of
deportation.

       I note that the regulation could have been written to avoid this result. Under a
prior version of the advance parole regulation, the Fourth Circuit concluded that an
alien returning under advance parole should have been placed in deportation
proceedings after his return to this country and entitled to a suspension of deportation
hearing. Joshi v. INS, 720 F.2d 799, 803-04 (4th Cir. 1983). The Fourth Circuit also
explained that the parole statute, 8 U.S.C. § 1182(d)(5), which requires that an alien
admitted under parole leaves his legal status at the border and upon which the INS
conceived advanced parole, was intended “to allow the applicant entry ‘for emergent
reasons or for reasons deemed strictly in the public interest[]’ . . . [and] does not
purport to deal with authorization for foreign travel or with readmittance to the
country to resume prosecution of a pending motion.” Id. at 803-04.

        I would hold the advance parole regulation, 8 C.F.R. § 245.2(a)(4)(ii), invalid
in this case as inconsistent with the suspension of deportation statute, 8 U.S.C. § 1254.

                                          -20-
See Succar v. Ashcroft, 394 F.3d 8, 9-10, 36 (1st Cir. 2005); Bona v. Gonzales, 425
F.3d 663, 668 (9th Cir. 2005); Zheng v. Gonzales, 422 F.3d 98, 103, 119-20 (3d Cir.
2005). Accordingly, I dissent.
                       ______________________________




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