We review a Board of Immigration Appeals order denying a motion to reconsider for abuse of discretion. Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). The Board abuses its discretion "when it misapplies the law in reaching its decision" or "by not following its own precedents without providing a reasoned explanation for doing so."
ordinarily be considered a good candidate to be allowed to adjust his status to that of a lawful permanent resident, Elkins v. Moreno, 435 U.S. 647, 667-68, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978); Patel v. INS, 738 F.2d 239, 242-43 (7th Cir. 1984); In re Hashmi 24 I. N. Dec. 785, 793 (BIA 2009); U.S.C.I.S. Adjudicator's Field Manual, § 23.2(d) (updated through Oct. 6, 2010), the denial of his two previous applications, and the possible (though only, as far as we know, a rumored) link to Hamas, suggests not. But if not — if indeed he's a threat to the security of the United States — he can be subjected to removal or perhaps even to criminal proceedings upon his return to this country and can be detained until those proceedings are completed. Advance parole entitled him to return to the United States for the sole purpose of pressing his application for adjustment of status; it gave him no greater rights than if he'd never left. Barney v. Rogers, 83 F.3d 318, 321 (9th Cir. 1996); see also Assa'ad v. U.S. Attorney General, 332 F.3d 1321, 1326-27 (11th Cir. 2003). Maybe he can be declared inadmissible; but that hasn't been done, as we said. By refusing to grant him a visa, the government is arbitrarily preventing him from exercising the right granted to him by the advance-parole regulation.
"We review the BIA's denial of a motion to reconsider for abuse of discretion." Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). The BIA's discretion in granting or denying a motion for reconsideration is "very broad."
In our de novo review, however, the BIA's interpretation and application of immigration law are subject to established principles of deference. Assa'ad v. United States Att'y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003); see Fed. Trade Comm'n v. Ind. Fed'n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2016, 90 L.Ed.2d 445 (1986). In interpreting a statute or regulation administered by an agency, the Supreme Court has established a two-part process.
Therefore, our inquiry should not focus on the absence of an explicit repeal or overruling of Fleuti, but rather on the strong indication of Congressional intent that stems from the absence of any mention of the operative terms intent, innocent, casual, or brief. See also Assa'ad v. Attorney Gen., 332 F.3d 1321, 1331 (11th Cir. 2003) ("Thus, we believe that the exception for `brief, casual, and innocent absences' in § 245A(a)(3)(B) is expressly limited to the continuous physical presence eligibility requirement. It does not affect the generally applicable definition of what constitutes an `entry' into the United States under former INA § 101(a)(13).").
In some cases (this is one of them), the Attorney General grants advance parole to an alien who is already in the United States but who also wants the assurance that he will be allowed to leave and return. Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 2003 WL 21282457, at *3 (11th Cir. June 5, 2003); 5 Charles Gordon, et al., Immigration Law and Procedure § 62.02[2], at 62-13 (Rev. ed. 2003). The Attorney General also has the discretion to revoke advance parole after it has been granted.
In some cases, advance parole is granted to an alien who is already in the United States but who wants the assurance that he or she will be allowed to leave and return. See Assa'ad v. United States Atty. Gen., 332 F.3d 1321, 1326-27 (11th Cir. 2003); 5 Charles Gordon, et al., Immigration Law and Procedure § 62.02[2], at 62-13 (Rev. ed. 2002). On September 29, 2000, petitioner was charged in an Indictment in the United States District Court for the Eastern District of New York with, inter alia, one count of conspiracy to traffic in and use unauthorized devices, in violation of 18 U.S.C. § 1029(b)(2) and (c)(1)(A).