Commonly called "advance parole," this administrative device allows an alien in the United States, who fears that she will be inadmissible if she leaves and tries to return, to leave with the assurance that she will be paroled back into the United States upon return. Assa'ad v. United States Att'y Gen., 332 F.3d 1321, 1326-27 (11th Cir. 2003). Parole, however, is not regarded as an admission of the alien.
We review the BIA's denial of a motion for reconsideration for an abuse of discretion. Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). Our review is limited to determining whether the BIA exercised its discretion arbitrarily or capriciously.
We defer to the Department of Homeland Security's ("DHS's") "interpretation of its own regulations unless its interpretation is 'plainly erroneous or inconsistent with the regulation.'" Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911, 137 L. Ed. 2d 79 (1997)). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") provides for two bases for removability including grounds of inadmissibility under 8 U.S.C. § 1182 and grounds of deportability under 8 U.S.C. § 1227, which governs the removal of aliens admitted to the United States.
We review the BIA's legal conclusions de novo and its factfindings for substantial evidence. Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003); Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001). Bayolo argues that his case is factually indistinguishable from St. Cyr and therefore, like the alien in that case (St. Cyr), he too should be allowed to apply for a now-extinct form of relief. Bayolo, like St. Cyr, was convicted of a pre-IIRIRA crime that rendered him deportable.
Although we review legal questions de novo, we must defer to the BIA's construction of the INA “if the statute is silent or ambiguous with respect to the specific issue before us and the BIA's interpretation is based on a permissible construction of the statute.” Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1326 (11th Cir.2003) (quotation marks omitted). An alien is inadmissible and ineligible for asylum, withholding of removal, or CAT relief if he has engaged in terrorist activity, which includes committing “an act that the actor knows, or reasonably should know, affords material support” to a terrorist organization.8 U.S.C. § 1182(a)(3)(B)(iv)(VI); see also id. §§ 1158(b)(2)(A)(v), 1231(b)(3)(B)(iv); 8 C.F.R. § 1208.16(d)(2).
Whether an alien had “entered” mattered because “important immigration provisions were keyed to an alien's ‘entry.’ ” Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1328 (11th Cir.2003). Aliens who had not yet entered the United States were subject to “exclusion” hearings.
The BIA's interpretation of its own regulation, however, is entitled to deference "unless that interpretation is `plainly erroneous or inconsistent with the regulation.'" Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997)). Additionally, we review our subject matter jurisdiction de novo.
On the other hand, when a motion to remand seeks, as here, to introduce evidence not previously presented, the motion is generally treated as a motion to reopen under 8 C.F.R. § 1003.2(c). Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). We review the BIA's denial of a motion to reopen for an abuse of discretion regardless of the underlying basis of the alien's request for relief. Al Najjar, 257 F.3d at 1302.
This Court reviews the BIA's denial of a motion for reconsideration and a motion to reopen only for an abuse of discretion. Asaa'ad, v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003) (relating to a motion for reconsideration); Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003) (relating to a motion to reopen). Because they are discretionary forms of relief, judicial review of denials of motions for reconsideration and to reopen are "limited to determining `whether there has been an exercise of administrative discretion and whether the matter of exercise has been arbitrary or capricious.'"
JUSTICE SOUTER took no part in the consideration or decision of this petition. Reported below: 332 F. 3d 1321.