(CN) – The 7th Circuit ordered Attorney General Eric Holder to take “whatever steps are necessary” to allow a Jordanian citizen back into the U.S., after immigration officials lured the nonlawful resident out of the country with the promise of re-entry.
“By whatever means or route he got back into the United States, even if it was in a coffin in the cargo hold of an airliner, disguised as Count Dracula, he could have continued to seek to adjust his status to that of a lawful resident, until and unless he was removed,” Judge Richard Posner wrote in the court’s majority opinion.
Sabri Samirah, a Jordanian citizen, first entered the United States in 1987 on a student visa.
In the intervening years, during which time the visa expired, Samirah received a doctoral degree, married and had three children in the U.S.
In 2002, a year after the immigration service denied Samirah’s bid to change his status to lawful resident for the second time, Samirah learned that his mother in Jordan was ill.
Samirah filed a third status adjustment application and requested advanced parole, which authorizes noncitizens to travel outside of the U.S. without forfeiting the chance to adjust their immigration statuses.
His request was granted, and he was sent a travel document to present to immigration authorities upon his return from Jordan.
But when Samirah’s return flight stopped in Ireland’s Shannon Airport, an immigration officer informed him that his advance parole had been revoked because he was a “security risk,” and that he would not be allowed back in the U.S.
In rejecting his second status adjustment application, the immigration service accused Samirah of connections to Hamas and of having an invalid religious-worker visa from the American Middle Eastern League.
“The government has not repeated these shadowy accusations in the present proceeding, and the plaintiff has never been placed in removal proceedings,” Posner wrote.
In a split-panel opinion, the Chicago-based circuit court found that the grant of advance parole guaranteed Samirah the right to return to the United States. The decision to grant parole remains at the discretion of an immigration judge, according to the ruling.
“No one has told us what kind of ‘security risk’ the plaintiff is,” Posner wrote. “The government points to no facts or reasoning that might support the immigration service’s refusal to allow him to return to the United States. No evidence is mentioned that might connect him to Hamas.”
The government argued that it can prevent the entrance of aliens who endanger national security, but the 7th Circuit found that the unsubstantiated claim that Samirah is a “security risk” does not meet the criteria.
“Someone whose parole is revoked has no right to remain in the United States, as he is not a lawful resident and is subject therefore to removal, but that if he had applied for an adjustment of status when he was here he can return to the United States so that he can pursue his application,” Posner wrote.
Posner warned against revoking advance parole to circumvent removal proceedings. “The attorney general can abolish advance parole if he wants, but he cannot be permitted to make it a trap – a device for luring a nonlawful resident out of the United States so that he can be permanently excluded from this country without any procedural protections,” Posner wrote.
The court ordered Attorney General Eric Holder to take “whatever steps are necessary” to allow Samirah back into the U.S., and said the district court lacked the authority to place the Jordanian under removal proceedings.
In a dissenting opinion, Judge Daniel Manion wrote that the circuit court had exceeded its jurisdiction.
When his application was revoked, “Samirah’s real status was that of an alien abroad with a grant of advance parole,” Manion’s dissent states. “And returning him to that status would simply require mandating that the government reinstate Samirah’s advance parole.”
Manion added that such reinstatement “is beyond out power to order.”
In a footnote, Manion noted that directing the government to take “whatever steps are necessary” to allow Samirah back into the United States could require his removal from a no-fly list. “The propriety of including Samirah on a no-fly list, though, has never been litigated and should not be unconditionally ordered by the court today.”