Mohammad M. Qatanani v. Attorney General United States of America on Petition for Review of An Order of the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 24-1849
____________
MOHAMMAD M. QATANANI,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF
AMERICA
____________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(Agency No. A076-133-969)
Immigration Judge: Alberto J. Riefkohl
____________
Argued on May 13, 2025
Before: KRAUSE, MATEY, and FREEMAN, Circuit Judges
(Opinion filed: July 15, 2025)

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Cyrus D. Mehta
David A. Isaacson [Argued]
Cyrus D. Mehta & Partners
One Battery Park Plaza, 9th Floor
New York, NY 10004
Claudia Slovinsky
233 Broadway Suite 2020
New York, NY 10279
Counsel for Petitioner
Merrick B. Garland
Gregory M. Kelch
Lindsay M. Murphy [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
FREEMAN, Circuit Judge.
The Supreme Court has long recognized that the
admission and exclusion of noncitizens is a “fundamental
sovereign attribute exercised by the Government’s political

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departments largely immune from judicial control.” Fiallo v.
Bell, 430 U.S. 787, 792 (1977) (quoting Shaughnessy v. Mezei,
345 U.S. 206, 210 (1953)). But in that endeavor, both political
branches have particular roles to play. On the one hand, the
Executive has authority to enforce the immigration laws passed
by Congress and to exercise the discretion Congress delegates
to it. INS v. Chadha, 462 U.S. 919, 953 n.16 (1983). On the
other hand, “the formulation of [immigration] policies is
entrusted exclusively to Congress.” Galvan v. Press, 347 U.S.
522, 531 (1954); see also Osorio-Martinez v. Att’y Gen., 893
F.3d 153, 176 (3d Cir. 2018). Indeed, there is “no conceivable
subject” over which the “legislative power of Congress [is]
more complete” than the admission and exclusion of
noncitizens. Fiallo, 430 U.S. at 792 (quoting Oceanic
Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)). In
this balance, it is the Judiciary’s exclusive province to resolve
separation-of-powers questions. See Freytag v. Comm’r, 501
U.S. 868, 878–80 (1991); Mistretta v. United States, 488 U.S.
361, 380–82 (1989). So where an administrative agency
purports by regulation to evade procedures mandated by
Congress in the Immigration and Nationality Act (“INA”), it is
incumbent upon us to intervene. We do so here.
In 1996, Mohammad M. Qatanani was admitted to the
United States on a work visa. In 1999, he applied under
8 U.S.C. § 1255(a) to adjust his immigration status to that of a
Lawful Permanent Resident (“LPR”). After lengthy
proceedings regarding Qatanani’s application, an Immigration
Judge (“IJ”) twice made fact findings and credibility
determinations in Qatanani’s favor and granted his application
to adjust to LPR status. The IJ issued those orders in 2008 and
2020, respectively.

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The IJ’s 2008 order never became final; the Department
of Homeland Security (“DHS”) appealed the order within the
30-day period permitted for it to do so. On appeal, the Board
of Immigration Appeals (“BIA”) vacated the IJ’s order and
remanded the matter to the IJ for further proceedings. Those
proceedings led to the IJ’s April 2020 order that again granted
Qatanani’s application to adjust to LPR status.
DHS did not appeal the IJ’s April 2020 order within 30
days, so that order became final. As part of Congress’s regime
for adjustment to and recission of LPR status, the Attorney
General was then required to memorialize that final order by
recording Qatanani’s admission with LPR status as of the date
of the IJ’s April 2020 order. 8 U.S.C. § 1255(b). And
Congress specified how the Attorney General could rescind
that LPR status if warranted: Within five years of the
adjustment date, the Attorney General could commence
proceedings pursuant to § 1256(a).
But here, the Attorney General evaded that statutory
path. Instead, the BIA invoked an agency regulation to “self-
certify” an appeal of the IJ’s April 2020 order eleven months
after that order issued. And at the conclusion of those self-
certified appeal proceedings, the BIA issued an order
purporting to reverse the IJ’s April 2020 order and to order
Qatanani removed from the United States. Qatanani petitioned
us for review of the BIA’s decision.
The BIA exceeded its authority when it attempted to
undo Qatanani’s adjustment to LPR status by using an agency
regulation in a manner inconsistent with the procedures set out

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by Congress in the INA. Accordingly, we granted Qatanani’s
petition for review and vacated the BIA’s order.1
I.
Qatanani is Palestinian and a citizen of Jordan. He was
born in the West Bank and lived there until he finished high
school. In 1982, he began studying at the University of Jordan,
where he earned his bachelor’s and master’s degrees and a
Ph.D. In 1989, he began working as an Imam in Jordan.
In 1993, Qatanani traveled to the West Bank with his
wife and children to renew his residency card. While there, he
was detained, beaten, and interrogated by the Israeli military.
Upon his release, Israeli authorities renewed Qatanani’s
residency card.
In 1996, Qatanani was admitted to the United States,
along with his wife and then four children, on a non-immigrant
H1-B visa to serve as an Imam at the Islamic Center of Passaic
County (“Islamic Center”) in Paterson, New Jersey. In 1998,
the Immigration and Naturalization Service determined that
Qatanani was eligible to receive an immigrant visa. See
8 U.S.C. § 1101(a)(27)(C). On April 1, 1999, when his H1-B
visa was set to expire, Qatanani applied to adjust his status to
LPR. On his application form (“I-485 application”), Qatanani
checked a box stating that he had not been arrested or
1 On May 19, 2025, we issued a Judgment granting Qatanani’s
petition for review and vacating the BIA’s decision and its
order of removal. We noted that a full opinion would follow.
We now issue that opinion.

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imprisoned for violating a law or ordinance within or outside
the United States.
In 2005, while his I-485 application was still pending,
Qatanani requested a meeting with the Federal Bureau of
Investigation (“FBI”) and Immigration and Customs
Enforcement (“ICE”) to inquire about the reason for the delay.
In February 2005, an FBI agent and an ICE agent conducted a
voluntary interview in which Qatanani disclosed that the Israeli
military detained him in the West Bank in 1993. The agents
informed United States Citizenship and Immigration Services
(“USCIS”) that Qatanani had been arrested and possibly
convicted in the West Bank, and officials reached out to Israeli
authorities to obtain records.
In May 2006, USCIS interviewed Qatanani regarding
his I-485 application. The USCIS officer presented a
declaration executed in January 2006 by the FBI agent who
conducted the February 2005 interview. Qatanani and his
counsel, who were seeing the declaration for the first time,
objected that its contents were inaccurate and that they needed
more time to review the document. The interview was
terminated soon thereafter, and there was no subsequent
USCIS interview.
In July 2006, USCIS denied Qatanani’s I-485
application. It stated that Qatanani was inadmissible because
he made a material misrepresentation in his application. See
8 U.S.C. § 1182(a)(6)(C)(i). Relying on the FBI agent’s
declaration, USCIS found that, in the February 2005 interview,
Qatanani admitted that he was arrested, pleaded guilty to a
crime, and was imprisoned for three months by Israeli
authorities in the West Bank in 1993. Accordingly, USCIS

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found that Qatanani made a material misrepresentation when
he stated on an immigration form that he had never been
arrested, charged, or imprisoned for violating any law or
ordinance. USCIS also denied Qatanani’s application in the
exercise of discretion.
That same day, ICE placed Qatanani in removal
proceedings. Qatanani appeared before the Newark
Immigration Court and conceded his removability. As relief
from removal, he renewed his request for adjustment of status
before the Immigration Court.
After receiving voluminous documents in evidence and
holding a hearing over four days, the IJ granted Qatanani’s
application for adjustment of status. In a lengthy opinion
issued in 2008, the IJ found that Qatanani was admissible and
that he merited adjustment of status as a matter of discretion.
The IJ rejected the two grounds upon which DHS
claimed that Qatanani was inadmissible. The first ground was
alleged engagement in terrorist activity. See 8 U.S.C.
§ 1182(a)(3)(B)(i)(I). Specifically, DHS claimed that
Qatanani provided material support to Hamas. DHS based this
claim in large part on documents it obtained from the Israeli
military. Those documents state that, in 1993, a military court
convicted Qatanani of two charges: (1) membership in an
unlawful association (specifically, Hamas) and (2) performing
a service for an unlawful association.
The IJ conducted a detailed discussion of the evidence.
Among other concerns, the IJ stated that the documents from
the Israeli military were premised on a written confession that
was absent from the record. The IJ found that the military court

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was internationally stigmatized for failing to meet fair-trial
standards, and even the Israeli Supreme Court had condemned
it for abusive treatment to coerce confessions from detainees
during the time of Qatanani’s detention. The IJ also found it
“perplex[ing]” and “remarkable” that the Israeli military would
convict Qatanani (who refused to cooperate or become a spy
for Israel) of being a member of Hamas and then release him
after three months and renew his West Bank residency permit.
App. A160. Because the military court documents were
“highly questionable, fail to clarify the identity of the
respondent[,] and border on being, flatly stated, unreliable,”
the IJ gave the documents “very low evidentiary weight.” App.
150. He found they did not prove Qatanani engaged in terrorist
activity.
In addition to the military court documents, two DHS
witnesses—the FBI agent and the ICE agent who interviewed
Qatanani in 2005—testified that Qatanani admitted during the
interview that he was arrested for being a member of Hamas.
In Qatanani’s own testimony, he maintained that he had not
done so. The IJ found Qatanani credible. But the IJ recounted
numerous examples of the FBI agent’s evasive, unresponsive,
implausible, and contradictory answers that caused the IJ to
disregard the FBI agent’s testimony as unreliable. The IJ also
explained that the ICE agent contradicted herself in her
testimony, which was further undermined by DHS’s failure to
present the documents the ICE agent reviewed to prepare for
her testimony. As a result, the IJ did not credit either agent,
leaving Qatanani as the “only one of the three that has been
consistent” about whether he was detained in 1993 or whether
he was arrested and convicted. App. A172.

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The other grounds DHS raised to support its allegation
that Qatanani engaged in terrorist activity were Qatanani’s
possible associations with members of Hamas and his one-time
transfer of money to the West Bank. But, upon review of the
evidence, the IJ found none of Qatanani’s associations were
improper, and DHS presented no evidence that the money
Qatanani transferred to the West Bank came from an illegal
source or was used for an illegal purpose. So the IJ found that
Qatanani was not inadmissible for having engaged in terrorist
activity.
The IJ then turned to DHS’s second allegation of
inadmissibility: the alleged willful misrepresentation of a
material fact in Qatanani’s application for adjustment of status.
8 U.S.C. § 1182(a)(6)(C)(i). The IJ found that Qatanani made
no willful misrepresentation. Again crediting Qatanani’s
testimony, the IJ found that Qatanani “answered truthfully in
his I-485 application for adjustment of status when he marked
the box indicating that he was never arrested or convicted in
any country.” App. A188.
The IJ analyzed the distinction between arrest and
administrative detention under the Israeli military court
regulations in effect in the West Bank in 1993. Arrest required
reasonable suspicion of an offense, while administrative
detention required neither reasonable suspicion nor a criminal
charge. The IJ credited the testimony of the experts presented
by Qatanani and DHS, all of whom testified that thousands of
Palestinian men were subject to administrative detention in the
Israeli-occupied territories in 1993. Considering these facts,
and Qatanani’s credible testimony, the IJ found that Qatanani
reasonably believed he was administratively detained without
arrest in the West Bank in 1993. The IJ also found that

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Qatanani was released without explanation and only learned
during the USCIS interview that he allegedly had been
convicted of a crime in 1993.
Although the IJ “d[id] not find that Mr. Qatanani
willfully misrepresented a fact material [sic] in his application
for adjustment of status,” the IJ noted that “[i]t was unwise for
Mr. Qatanani to not be candid on his application about his
detention in the West Bank in 1993.” App. A192. The IJ
posited that, if Qatanani had explained the circumstances when
he applied for adjustment of status, he might have avoided the
lengthy proceedings about his admissibility. Nonetheless,
because Qatanani voluntarily disclosed his detention to the FBI
during the February 2005 interview, the IJ found that
Qatanani’s conduct did not cut off a line of inquiry relevant to
the application for adjustment of status.
Having found Qatanani eligible for admission, the IJ
addressed whether Qatanani merited adjustment to LPR status
as a matter of discretion. The IJ weighed several factors in
Qatanani’s favor, including the “outstanding” character
witnesses who took time out of their schedules to testify at the
hearing. App. A190. Those witnesses included three law
enforcement officers—two county sheriffs and an Assistant
United States Attorney who was the then-Chief of the Criminal
Division in the United States Attorney’s Office for the District
of New Jersey—who testified to the assistance Qatanani
provided to federal and local law enforcement during his tenure
at the Islamic Center. Additionally, three respected members
of Jewish and Christian religious organizations each “attested
to [Qatanani’s] character and dedication to an all[-]inclusive
movement and message of tolerance and unity among all
denominations.” Id. The IJ also weighed positively that

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Qatanani’s family—his wife and six children, three of whom
were United States citizens—had lived in the country as law-
abiding members of the community for over 12 years. The
only negative factor was a criminal charge (which had since
been dismissed) Qatanani sustained for producing an invalid
international driver’s license to a police officer during a traffic
stop in 2005. Because that negative factor did not outweigh all
the positive factors, the IJ granted Qatanani’s application and
adjusted his status to LPR.
DHS timely appealed to the BIA. In a 2009 opinion, the
BIA remanded the matter to the IJ for additional evidentiary
proceedings. The BIA determined that the IJ improperly
discredited the FBI and ICE agents, but it did not disturb the
IJ’s determination that Qatanani testified credibly.
Additionally, the BIA instructed the IJ to further evaluate the
documents DHS obtained from the Israeli military because,
“[a]lthough the documents may have deficiencies, [they]
appear to relate to the lead respondent” and “reasonably
indicate the existence of a criminal conviction.” App. A121–
22.
Upon remand, the parties submitted additional evidence
and argument, and the IJ heard testimony over three dates in
2016 and 2017. (During those proceedings, DHS specifically
refused to present the FBI and ICE agents to be rehabilitated.)
In April 2020, the IJ again granted Qatanani’s application for
an adjustment to LPR status. In his decision, the IJ found that
Qatanani had established his admissibility and merited relief as
a matter of discretion.
Contrary to DHS’s charge that Qatanani had engaged in
terrorist activity, the IJ found that Qatanani is not and has never

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been a member of Hamas. Upon remand from the BIA, DHS
supported this charge by relying only on the Israeli military
documents showing Qatanani’s alleged conviction by the
Israeli military. The IJ found those documents not credible
because they were obtained by a fundamentally unfair process.
The IJ assumed without deciding that Qatanani signed a written
confession to being a member of Hamas,2 and the IJ found that
Qatanani only signed the confession because the Israeli
military used torturous interrogation tactics to coerce him into
doing so. The IJ also found that if Qatanani signed a written
confession at all, Qatanani did not understand what he was
signing. So the only basis for the alleged conviction was a
coerced and unknowing confession.3 Thus, the IJ found that
Qatanani proved by clear and convincing evidence that he was
not inadmissible for engaging in terrorist activity.
The IJ also found that Qatanani proved he was not
inadmissible for making a material misrepresentation in his I-
485 application. The IJ explained (per the BIA’s instruction)
that Qatanani’s failure to disclose his administrative detention
in the West Bank tended to shut off a line of inquiry relevant
to his eligibility for adjustment; thus, the omission was a
material misrepresentation. But under BIA precedent, the
burden then shifted to Qatanani to prove that he would have
2 The IJ noted Qatanani’s testimony that one of the signatures
on the written confession looked like his own and the other
looked like an attempt to copy his signature.
3 The IJ also noted that DHS never produced original records
of the alleged conviction and relied instead on “a series of
alleged certifications” by Israeli authorities that the IJ found
was “tantamount to hearsay over hearsay.” App. A63 n.5.

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been admissible had the facts been disclosed. And the IJ found
that Qatanani met his burden by presenting “overwhelming
evidence, both in the record and through witness testimony,
that [he] was tortured into making a confession of guilt,” so
Qatanani would have been admissible if he had disclosed his
detention. App. A65.
Turning to the exercise of discretion, the IJ recounted a
list of positive factors, including Qatanani’s good moral
character, substantial period of residence in the United States,
significant community ties, consistent payment of his taxes,
and contributions to religious and academic institutions. The
IJ then turned to a topic DHS raised during the post-remand
proceedings: a speech Qatanani gave during a rally in Times
Square in December 2017.
In his brief speech, Qatanani stated his opposition to
President Trump’s decision to recognize Jerusalem as the
capital of Israel. DHS argued that the speech was an adverse
factor because a certain phrase Qatanani used during that
speech—a call for “a new intifada”—equated to a call for
violence. (DHS presented the IJ with a videorecording and a
transcript of the speech.) For his part, Qatanani maintained that
he was not advocating violence, and that he only promotes
peaceful methods of political opposition.
After reviewing the contents of the speech and related
materials from the parties, the IJ found that Qatanani was
expressing his opinion about the President’s decision by means

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of a peaceful demonstration.4 Accordingly, the IJ did not
consider the speech to be an adverse factor.
In an order dated April 27, 2020, the IJ granted
Qatanani’s application for adjustment to LPR status.
According to the Immigration Court’s certificate of service, the
IJ’s order was served on DHS by the Executive Office for
Immigration Review via mail and personal service on the day
the order was issued.
4 Qatanani opened his speech by addressing “every good man
and woman in the world who loves justice, who loves peace.”
A.R. 1410. Midway through the speech, he said:
Brothers and sisters. Palestine is the heart of all
Muslims. The heart of all Arabs. The heart of
all the people in the world! It is for every good
man and woman in the world who loves justice,
[cough] who loves peace. Our message to
Palestinian Authority: you have to stop all kinds
of peace process! No peace process and
negotiation without liberation in Palestine. Also
has to be stopped and to be finished. We have to
start a new intifada. [Uprising] Intifada,
intifada!
Id. (bracketed text in original). He and the crowd then
exchanged several chants of “Intifada, intifada!” before
Qatanani concluded the speech by saying, “Brothers, this is the
answer to Mr. Trump. We will continue, we will continue
coming to Times Square until Jerusalem will be free. Until
every place in the world to be free. Thank you very much.”
Id.

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Thus, pursuant to 8 C.F.R. § 1003.38(b), DHS had 30
days to file its notice of appeal with the BIA. But it did not do
so. Instead, more than three months later, it filed a motion
asking the BIA to hear a late appeal of the IJ’s order. DHS
filed its motion on August 12, 2020, and invoked a regulation
that, according to DHS, permits the BIA to hear an appeal “by
certification” in any case over which it has appellate
jurisdiction. 8 C.F.R. § 1003.1(c) (2020). The regulation
provides no time limit on the BIA’s authority to self-certify a
late appeal. DHS asserted that certification was warranted
because it first learned of the IJ’s April 27 order on July 14—
one day after its physical office in Newark reopened following
a COVID-19 closure. Over Qatanani’s opposition, the BIA
self-certified the appeal on March 10, 2021.5
5 After DHS filed its motion, a new regulation temporarily
removed the BIA’s ability to self-certify appeals to itself under
8 C.F.R. § 1003.1(c). See Appellate Procedure and Decisional
Finality in Immigration Proceedings; Administrative Closure,
85 Fed. Reg. 81588 (Dec. 16, 2020). The new regulation took
effect on January 15, 2021, but a district court enjoined it on
March 10, 2021—the same day the BIA self-certified an appeal
in Qatanani’s case. Centro Legal de la Raza v. Exec. Off. for
Immigr. Rev., 524 F. Supp. 3d 919, 980 (N.D. Cal. Mar. 10,
2021).
Another regulation restored the BIA’s self-certification
authority, effective on July 29, 2024. See Efficient Case and
Docket Management in Immigration Proceedings, 89 Fed.
Reg. 46742 (May 29, 2024). By that time, the BIA had issued
its opinion in Qatanani’s case.

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On April 5, 2024, the BIA issued an order that purported
to (1) reverse the IJ’s decision granting Qatanani’s application
for adjustment to LPR status and (2) order Qatanani removed
to Jordan. In its opinion, the BIA declined to address
Qatanani’s admissibility. Instead, it overturned the IJ’s
exercise of discretion, finding that four adverse factors
outweighed the positive factors. The adverse factors it relied
upon were (1) Qatanani’s “lack of candor in his application for
adjustment of status . . . regarding his detention in the West
Bank in 1993,” App. A6; (2) that he had “associated with
individuals who support[ed] Hamas,” App. A7; (3) his Times
Square speech, which the BIA characterized as “advocat[ing]
for a violent, armed uprising against another sovereign nation,”
App. A8; and (4) his insufficient response to DHS’s argument
on appeal that he did not prove he filed tax returns for the years
2011 through 2016, App. A9.
This timely petition for review followed.
II.6
Qatanani brings an as-applied challenge to the BIA’s
authority to self-certify an appeal of the IJ’s April 2020 order
granting his application for adjustment to LPR status. In doing
6 We have jurisdiction to review a final order of removal, 8
U.S.C. § 1252(a)(1) and (5), and to determine whether a
petitioner has LPR status, see Sharkey v. Quarantillo, 541 F.3d
75, 91–92 (2d Cir. 2008). When an agency has acted, we have
jurisdiction to determine whether it exceeded its statutory
powers. Chehazeh v. Att’y Gen., 666 F.3d 118, 129 (3d Cir.
2012). We review the BIA’s legal conclusions de novo.
Pesikan v. Att’y Gen., 83 F.4th 222, 227 n.7 (3d Cir. 2023).

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so, he contends that the BIA used a regulation, 8 C.F.R.
§ 1003.1(c), to circumvent Congress’s process for rescinding a
grant of LPR status and the procedural protections afforded by
that process. He is correct that the BIA exceeded its authority
in this case. The IJ issued his April 2020 order pursuant to 8
U.S.C. § 1255(a). When DHS did not appeal that order within
30 days, the order became final, with an effective date of April
27, 2020. See 8 U.S.C. § 1255(b). And once that appeal period
passed and Qatanani obtained LPR status, if the government
wished to revoke that status, it was required to adhere to the
recission process Congress provided in 8 U.S.C. § 1256(a).
The BIA lacked authority to usurp that process by self-
certifying an appeal of the IJ’s April 2020 order adjusting
Qatanani’s status.
A.
We begin with first principles. “Policies pertaining to
the entry of [noncitizens] and their right to remain here are
peculiarly concerned with the political conduct of
government.” Galvan, 347 U.S. at 531; Fiallo, 430 U.S. at 792
(recognizing that “the power to expel or exclude [noncitizens]
[i]s a fundamental sovereign attribute exercised by the
Government’s political departments” (quoting Shaughnessy,
345 U.S. at 210)). But our Nation does not vest that power in
only one of our political branches. Instead, it is “the
responsibility of the Executive Branch faithfully to execute the
immigration policy adopted by Congress.” United States v.
Valenzuela-Bernal, 458 U.S. 858, 872 (1982). And “the
creation of statutory rights associated with a given immigration
status falls exclusively within the purview of Congress.”
Osorio-Martinez, 893 F.3d at 172.

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The question here is one that is peculiarly in the
province of the Judiciary: “whether . . . the Executive is
‘aggrandizing its power at the expense of another branch.’”
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 197
(2012) (quoting Freytag, 501 U.S. at 878); see also Mistretta,
488 U.S. at 380. The answer to that question depends on what
authority Congress delegated to the Executive. See Chadha,
462 U.S. at 953 n.16 (“Executive action under legislatively
delegated authority . . . is always subject to check by the terms
of the legislation that authorized it; and if that authority is
exceeded it is open to judicial review . . . .”).
In the INA, Congress set out a comprehensive
framework for the adjustment to and recission of LPR status.
See, e.g., 8 U.S.C. §§ 1255–56. Within the parameters of the
INA, it granted the Attorney General the authority to adjust a
noncitizen’s status to that of an LPR “in his discretion and
under such regulations as he may prescribe.” 8 U.S.C.
§ 1255(a); see also Pinho v. Gonzales, 432 F.3d 193, 203 (3d
Cir. 2005). The INA specifies which groups of noncitizens are
eligible for adjustment to LPR status, 8 U.S.C. § 1255(a)
(limiting eligibility to noncitizens lawfully admitted or paroled
to the United States or noncitizens who have been approved for
a classification under the Violence Against Women Act), and
it lists certain prerequisites for that adjustment, id. (requiring
that an immigration visa be available, that the noncitizen apply
for adjustment, and that the noncitizen be eligible for an
immigrant visa and admissible to the United States).
As relevant here, the Attorney General has delegated to
the presiding immigration judge the “exclusive jurisdiction to
adjudicate any application for adjustment of status” filed by
“any alien who has been placed in deportation proceedings or

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in removal proceedings.” 8 C.F.R. § 1245.2(a)(1)(i). Once
that immigration judge issues a decision in the removal
proceeding, a party has 30 days to appeal that decision to the
BIA. 8 C.F.R. § 1003.38(b). “Except when certified to the
Board, the decision of the Immigration Judge becomes final
upon waiver of appeal or upon expiration of the time to appeal
if no appeal is taken whichever occurs first.” 8 C.F.R.
§ 1003.39 (2020).
When the IJ’s grant of status adjustment becomes final,
the Attorney General’s discretion gives way to the INA’s
mandate that “the Attorney General shall record the alien’s
lawful admission for permanent residence as of the date the
order of the Attorney General approving the application for the
adjustment of status is made.” 8 U.S.C. § 1255(b) (emphasis
added) (also providing that “the Secretary of State shall reduce
by one the number of the preference visas authorized to be
issued”); see Bouarfa v. Mayorkas, 604 U.S. 6, 9–10 (2024)
(observing, in the context of 8 U.S.C. § 1154(b), that language
providing the agency “shall . . . approve the [spousal visa]
petition” if certain criteria were met was a “mandatory
determination[]” by Congress). This language stands in sharp
contrast to other provisions of the INA in which Congress
specifically gave the Attorney General discretion about
whether to record adjustment to LPR status. See 8 U.S.C.
§ 1255b(b) (“[T]he Attorney General, in his discretion, may
record the alien’s lawful admission for permanent residence as
of the date the order of the Attorney General approving the
application for adjustment of status is made.” (emphasis
added)); 8 U.S.C. § 1259 (“A record of lawful admission for
permanent residence may, in the discretion of the Attorney
General and under such regulations as he may prescribe, be
made in the case of any alien, as of the date of the approval of

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his application or, if entry occurred prior to July 1, 1924, as of
the date of such entry . . . .” (emphasis added)).7 Plainly,
Congress knew how to afford the Executive discretion when it
intended to do so. And “our caselaw distinguishes between
actions which an agency official may freely decide to take or
not to take, and those which he is obligated by law to take or
not to take” with respect to adjustments of status. Pinho, 432
F.3d at 203.
Although the recordation of an admission with LPR
status is a ministerial task (one that helps track the number of
LPRs admitted in a given year), the admission itself is a
statutorily-defined event. Hanif v. Att’y Gen., 694 F.3d 479,
485 (3d Cir. 2012); 8 U.S.C. § 1101(a)(20). It is also an event
that has a significant legal effect. It provides a noncitizen “the
status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws.” 8 U.S.C.
§ 1101(a)(20). And, as discussed below, that status comes with
a great measure of security. See Bamidele v. INS, 99 F.3d 557,
564–65 (3d Cir. 1996); Castro v. United States Dep’t of
Homeland Sec., 835 F.3d 422, 446 (3d Cir. 2016) (“[A] lawful
permanent resident[’s] . . . entitlement to broad constitutional
protections is undisputed.”). That security includes clarity as
to when the adjustment to LPR status becomes final, thereby
concluding the period of the Attorney General’s discretion.
Congress provided this clarity by mandating that the Attorney
General record an adjustment to LPR status made under
8 U.S.C. § 1255(a) as of the date of the approval order.
8 U.S.C. § 1255(b).
7 8 U.S.C. §§ 1255b(b) and 1259 apply to certain classes of
nonimmigrants, and these provisions are not at issue here.

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Congress also provided clarity about when and why the
Attorney General may pursue recission of an adjustment to
LPR status. Even after the Attorney General no longer has
discretion over the adjustment itself, Congress has provided the
Attorney General a mechanism to rescind an adjustment to
LPR status in limited circumstances. The Attorney General
shall do so only when the person awarded adjustment to LPR
status was “not in fact eligible for such adjustment of status” at
the time of the adjustment. 8 U.S.C. § 1256(a).8 And even
8 8 U.S.C. § 1256(a) provides as follows:
If, at any time within five years after the status of
a person has been otherwise adjusted under the
provisions of section 1255 or 1259 of this title or
any other provision of law to that of an alien
lawfully admitted for permanent residence, it
shall appear to the satisfaction of the Attorney
General that the person was not in fact eligible
for such adjustment of status, the Attorney
General shall rescind the action taken granting an
adjustment of status to such person and
cancelling removal in the case of such person if
that occurred and the person shall thereupon be
subject to all provisions of this chapter to the
same extent as if the adjustment of status had not
been made. Nothing in this subsection shall
require the Attorney General to rescind
the alien’s status prior to commencement of
procedures to remove the alien under section

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22
when the Attorney General is satisfied of that person’s
ineligibility, the Attorney General may only seek to rescind
LPR status “within five years after [the adjustment date].” Id.;
see also Bamidele, 99 F.3d at 564–65 (requiring strict
compliance with the five-year statutory limitation period for
initiating recission of LPR status, even when LPR status was
obtained by misconduct); Garcia v. Att’y Gen., 553 F.3d 724,
726–28 (3d Cir. 2009) (confirming that Bamidele retains its
precedential authority after the 1996 amendment to 8 U.S.C.
§ 1256(a)).
By providing the Attorney General with only a
circumscribed ability to rescind an adjustment to LPR status,
Congress recognized that an order approving an application for
adjustment to LPR status under § 1255(a) is an event of legal
significance. It results in “the alien’s lawful admission for
permanent residence” that goes into effect on a specific date:
“the date the order of the Attorney General approving the
application for the adjustment of status is made.” 8 U.S.C.
§ 1255(b). And once that lawful admission goes into effect,
the Attorney General’s discretion ceases. See id. (mandating
that the Attorney General record the adjustment to LPR status).
Applying this statutory and regulatory regime to this
case, the time to appeal the IJ’s April 2020 order adjusting
Qatanani’s status to LPR expired 30 days after the IJ issued
that order. 8 C.F.R. § 1003.38(b). And while that appeal
period might be flexible when it pertains to other decisions by
immigration judges, see 8 C.F.R. § 1003.1(b) (listing the
1229a of this title, and an order of removal issued
by an immigration judge shall be sufficient to
rescind the alien’s status.

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decisions that are subject to the regulatory 30-day appeal
period), the decision at issue granted an adjustment to LPR
status. So it is governed by the provisions of the INA discussed
above. And when 30 days elapsed without any party initiating
an appeal, Qatanani’s admission with LPR status became final
by operation of law, effective as of April 27, 2020 (the date of
the immigration judge’s order). See 8 U.S.C. § 1255(b).
With this framework in mind, we turn to the task before
us: assessing whether a BIA regulation can circumvent the
statutory commands of Congress and the procedures therein.
B.
As a threshold matter, the government argues that we
cannot reach Qatanani’s challenge to the BIA’s authority. It
asserts that the challenge is barred because Qatanani failed to
exhaust his administrative remedies before the BIA. See
8 U.S.C. § 1252(d)(1).
The government is incorrect. Exhaustion is required
only when the BIA “was capable of granting the remedy sought
by the [noncitizen].” Barradas Jacome v. Att’y Gen., 39 F.4th
111, 120 (3d Cir. 2022) (citation omitted). Here, the BIA was
incapable of granting Qatanani relief from 8 C.F.R.
§ 1003.1(c). On its face, the regulation imposes no time limit
on the BIA’s authority to self-certify a late appeal. And “[t]he
[BIA] is bound to uphold agency regulations.” In Re Ponce De
Leon-Ruiz, 21 I. & N. Dec. 154, 158 (BIA 1996); see also
Matter of Anselmo, 20 I. & N. Dec. 25, 30 (BIA 1989) (“A
regulation promulgated by the Attorney General has the force
and effect of law as to this Board and immigration judges, and

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neither has any authority to consider challenges to regulations
implemented by the Attorney General. . . .”).
For similar reasons, we also recognize that the
exhaustion of administrative remedies is not required where, as
here, “the petitioner advances a due process claim” and shows
he suffered prejudice from the “breach of the entitled
protections.”9 Hernandez Garmendia v. Att’y Gen., 28 F.4th
476, 485 (3d Cir. 2022) (quoting Khan v. Att’y Gen., 448 F.3d
226, 236 n.8 (3d Cir. 2006)). This exception does not reach
mere procedural errors that could have been corrected by the
BIA. But the Board’s lack of “jurisdiction to adjudicate
constitutional issues” rendered it incapable of addressing the
due process claim presented here. Khan, 448 F.3d at 236 n.8
(quoting Bonhometre v. Gonzales, 414 F.3d 442, 447 n.7 (3d
Cir. 2005)). Just as the BIA had no authority to set aside a
facially valid regulation for exceeding the statutory
authorization of Congress, it also lacked jurisdiction to
9 The dissent asserts that Qatanani “expressly declined to
develop any such [due process] argument in this appeal,” so it
dismisses our analysis as dicta. Dissent at 13 n.20. But
Qatanani argued that adherence to the “requisite recission
procedures” may “be constitutionally required” by the Due
Process Clause due to the “heightened procedural protections”
afforded when an LPR’s resident status is threatened. Opening
Br. at 21 (quoting Sharkey, 541 F.3d at 92–93). And, at oral
argument, his counsel argued that “due process goes to the
interpretation of the statute . . . . [W]e’re not saying the statute
doesn’t go far enough and so he needs more due process. We
are saying the statute is in part there to protect these due
process rights and that’s one of the reasons it has to be strictly
followed.” OA Tr. at 11:23–12:5.

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25
adjudicate whether its use comports with the constitutional
minimums of due process. Barradas Jacome, 39 F.4th at 120
(requiring exhaustion only when “the . . . claim was within the
jurisdiction of the [agency] to consider”).
Qatanani had no obligation to present the BIA with a
challenge it had no authority to consider.
1.
Rather than acknowledging the LPR status Qatanani
attained 30 days after the IJ’s April 2020 order, the BIA sought
to undo the IJ’s order in March 2021 by way of self-
certification under 8 C.F.R. § 1003.1(c). In doing so, the BIA
disregarded the import of the Congressional directive in
8 U.S.C. 1255(b) and attempted to end-run the LPR-rescission
procedures Congress established in 8 U.S.C. § 1256(a). Its
actions were unlawful.
The government argues that the BIA’s behavior
comported with the INA because the IJ’s April 2020 order
never became final. It relies on a regulation that states: “Except
when certified to the Board, the decision of the Immigration
Judge becomes final upon waiver of appeal or upon expiration
of the time to appeal if no appeal is taken whichever occurs
first.” 8 C.F.R. § 1003.39 (emphasis added). According to the
government, the BIA can self-certify an appeal of an
immigration judge’s decision at any time—even decades after
the immigration judge makes his decision.
The implications of this argument are extraordinary.
Under this reading of agency authority, the government has
carte blanche to evade the limits Congress imposed on the

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26
Executive’s discretionary authority over adjustments to LPR
status and to circumvent the procedures Congress mandated for
recission of such adjustments. According to this view, by
merely invoking two regulations (8 C.F.R. §§ 1003.39 and
1003.1(c)), the BIA could render a final adjudication to LPR
status non-final, without the procedural protections that
Congress provided. And it could do so at any time.
At oral argument, the government doubled down on that
position. It asserted that, “whether it’s lawful permanent
resident status, [or] whether it’s naturalization, the
Government does retain the power to go back and revoke that
status if certain conditions are met.” OA Tr. 52:5–8. And
although Congress has proscribed the time frame in which the
Attorney General may rescind LPR status, the government
submitted that “there [is] no requirement” to follow Congress’s
statutory command because an agency “regulation permits . . .
the B[IA] with an unlimited time to go back and certify a
decision that has come before it.” OA Tr. 52:13–15.
When asked why “there would ever be a need to invoke
[§] 1256(a) if the B[IA] has the unlimited discretion decades
after an Immigration Judge’s [o]rder to . . . revisit the decision
that was made to adjust status,” the government acknowledged
that its position creates “an inherent tension between the
regulation and the recission statute.” OA Tr. 52:18–24. But
this is no mere “tension.” The government’s position is
antithetical to “the basic concept of separation of powers . . .
that flow[s] from the scheme of a tripartite government.” Stern
v. Marshall, 564 U.S. 462, 483 (2011) (quoting United States
v. Nixon, 418 U.S. 683, 704 (1974)). We therefore reject it.

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27
In this as-applied challenge, we need not address the
scope of the BIA’s self- certification authority across the
board. We need only address whether the BIA was authorized
to self-certify an appeal in this case, where (1) the IJ’s order
adjusted Qatanani’s status to LPR under 8 U.S.C. § 1255(a),
and (2) the BIA sought to self-certify an appeal more than 30
days after the IJ’s order. That action is inconsistent with the
finality of an adjustment to LPR status under § 1255(a), as
recognized by § 1255(b). When the time to appeal lapsed with
no appeal filed, that marked the end of the Attorney General’s
discretion over Qatanani’s adjustment of status in the first
instance. The Attorney General was obligated by
Congressional mandate to record Qatanani’s adjustment to
LPR status as of the date of the IJ’s April 2020 order. 8 U.S.C.
§ 1255(b).
Of course, Congress provided the Attorney General
another five years of authority to pursue recission of the
adjustment if the Attorney General was satisfied that Qatanani
was ineligible for the adjustment as of the date it took effect
(that is, April 27, 2020). 8 U.S.C. § 1256(a).10 But the
10 Any disputes about recission proceedings for Qatanani are
beyond the scope of this petition. We are unaware of whether
the Attorney General initiated recission proceedings.
However, because the government contended in a post-
argument letter that the five-year period to do so had not yet
expired (but was set to expire in late May 2025), we issued a
Judgment in this matter just six days after oral argument. In
that Judgment, we stated,

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28
Attorney General was prohibited from otherwise disturbing the
adjustment to LPR status. To hold otherwise “would
undermine the security which ought to attend permanent
resident status.” Bamidele, 99 F.3d at 564 (cleaned up).
As we have long recognized, “[t]hat which is
accomplished by a rescission of status is pretty harsh. It is
comparable to the revocation of citizenship about which the
courts have been very keen to make sure that the individual
received careful protection.” Id. (quoting Quintana v. Holland,
255 F.2d 161, 164 (3d Cir. 1958)); see also id. (noting that the
rescission of LPR status “blocks the man on the road to
citizenship, and results in banishment from a country where he
may have lived a long time”) (quoting Quintana, 255 F.2d at
164). Rescission of LPR status and revocation of naturalized
citizenship require the Executive to follow the procedures
[I]n the circumstances of this case, the Board
exceeded its authority when it invoked 8 C.F.R.
§ 1003.1(c) and reversed the Immigration
Judge’s decision adjusting petitioner’s status to
that of a lawful permanent resident. This
conclusion is without prejudice to the Attorney
General’s exercise of authority to commence
other proceedings under the Immigration and
Nationality Act to the extent applicable.
Judgment at 2, Dkt. No. 49, May 19, 2025 (emphasis added
and footnote omitted). In a footnote, we explained that we
issued the Judgment with an opinion to follow because we
were “[m]indful that certain provisions of the INA impose a
limitations period on the authority of the Attorney General to
commence proceedings.” Id. at 2 n.2.

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29
Congress has put in place. See id. at 564–65; Gorbach v. Reno,
219 F.3d 1087, 1094 (9th Cir. 2000) (“[I]mplying authority for
the Attorney General to take away people’s citizenship
administratively would gravely upset this carefully constructed
legislative arrangement.”).11
“To permit an agency to expand its power in the face of
a congressional limitation on its jurisdiction would be to grant
to the agency power to override Congress.” Louisiana Pub.
11 According to the dissent, § 1256(a) limits only the Attorney
General’s authority to rescind an adjustment to LPR status
based on ineligibility, and the Attorney General may
continually reevaluate the discretionary aspect of an
adjustment to LPR status. Dissent at 12–14. But Congress
imposed a five-year limitation period on the Attorney
General’s ability to pursue recission of an adjustment to LPR
status when a noncitizen never satisfied Congress’s criteria for
his adjustment to LPR status in the first instance. 8 U.S.C.
§ 1256(a). This limitation would be toothless if the Attorney
General could exercise her discretion to rescind an adjustment
to LPR status at any time. See Bamidele v. INS, 99 F.3d 557,
565 (3d Cir. 1996) (“[W]e cannot agree that Congress,
presumably knowing that rescission usually places [a
noncitizen] at immediate risk of deportation, would go to the
trouble of enacting a statute of limitations on rescission
actions, and then intend it to be construed so narrowly that it
offered virtually no protection from untimely action by the
[Attorney General].”).

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30
Serv. Comm’n v. FCC, 476 U.S. 355, 374–75 (1986).12 And,
here, the BIA’s actions went beyond the scope of the rescission
procedures Congress authorized in the INA. See Sharkey v.
Quarantillo, 541 F.3d 75, 93 (2d Cir. 2008) (“We cannot
accept the [agency]’s interpretation of the statute and the
regulation, which would render them nullities.”). It acted
unlawfully.
12 Because no regulation can undermine a statute, we need not
address deference to the BIA’s interpretation of its regulations.
We note, however, that we defer to an agency’s interpretation
of its regulation only when the regulation is genuinely
ambiguous, the agency’s interpretation is reasonable and
implicates its substantive expertise, and does not create unfair
surprise to regulated parties. Kisor v. Wilkie, 588 U.S. 558,
575–77 (2019); see also United States v. McIntosh, 124 F.4th
199, 206 n.3 (3d Cir. 2024) (confirming that Kisor is
undisturbed by the Supreme Court’s decision eliminating
Chevron deference). No deference would be due to the BIA’s
interpretation of 8 C.F.R. § 1003.1(c) in Qatanani’s case. The
BIA’s interpretation is not reasonable for all the reasons
discussed above. It also creates unfair surprise to parties who
rely on the permanence of an adjustment to LPR status under
§ 1255(a). And the issue here—the interaction between (1) the
30-day period to appeal the IJ’s order granting an adjustment
to LPR status under § 1255(a) and (2) the terms of the INA—
is a legal issue that implicates the expertise of the Judiciary,
not the Executive. See Garcia v. Att’y Gen., 553 F.3d 724, 727
(3d Cir. 2009); Bamidele, 99 F.3d at 561; McCuin v. Sec’y of
Health & Hum. Servs., 817 F.2d 161, 168 (1st Cir. 1987).

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31
2.
The BIA’s purported authority to retroactively nullify
Qatanani’s adjustment to LPR status also runs afoul of the
well-settled principles of finality and due process.
In administrative proceedings—and in immigration
matters specifically—“the finality of an order cannot be
conditioned on something that may never happen.” Jie Fang v.
Dir. United States Immigr. & Customs Enf’t, 935 F.3d 172, 184
(3d Cir. 2019) (citing Pinho, 432 F.3d at 193).13 The BIA
rarely self-certifies any late-filed appeal. See Matter of
Morales-Morales, 28 I. & N. Dec. 714, 715 (BIA 2023)
(describing the BIA’s authority to self-certify a late-filed
appeal under § 1003.1(c) as “a safety valve for exceptional
circumstances.”).14 And we are unaware of any case other than
13 See also Univ. of Tenn. v. Elliott, 478 U.S. 788, 798 n.6
(1986) (“Where an administrative forum has the essential
procedural characteristics of a court, . . . its determinations
should be accorded the same finality that is accorded the
judgment of a court. The importance of bringing a legal
controversy to conclusion is generally no less when the tribunal
is an administrative tribunal than when it is a court.”)
(alteration in original) (quoting Restatement (Second) of
Judgments § 83, p. 269 (1982)).
14 The government suggests that concerns about the BIA’s
purported authority to self-certify a late appeal of an order
adjusting a noncitizen’s status to that of an LPR are tempered
by the requirement that the BIA use its authority only in
“exceptional circumstances.” See Matter of Morales-Morales,

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32
Qatanani’s in which the BIA has attempted to self-certify a
late-filed DHS appeal of an order granting an adjustment to
LPR status. We conclude that the finality of an immigration
judge’s order granting adjustment to LPR status under
§ 1225(a) cannot depend on whether the Executive self-
certifies a late-filed appeal of that order—an event that may
never happen. See Jie Fang, 935 F.3d at 184.15 Instead, those
orders become final by operation of law at a predictable and
discernable time: when the 30-day period to appeal such an
order lapses and no appeal has been taken.
Due process also requires that an order granting an
application to adjust to LPR status have clear and predictable
finality. It does not matter that adjustment to LPR status is
itself discretionary.16 Noncitizens who seek discretionary
28 I. & N. Dec. 714, 715 (BIA 2023); OA Tr. at 43–45. But
that amorphous standard does not begin to cure the finality and
due-process concerns addressed in this opinion. Further, the
government offers little more than “its assurances that we can
trust the BIA not to abuse its power.” Chehazeh, 666 F.3d at
129. But “‘trust us’ is a poor operating principle for
government.” Id. at 130.
15 We do not address the BIA’s authority to self-certify late
appeals of orders other than those granting adjustment to LPR
status under § 1225(a).
16 We need not reach the Attorney General’s exercise of
discretion because we conclude that the BIA lacked authority
to hear a late appeal of the IJ’s April 2020 order. See Garcia,
553 F.3d at 729 (distinguishing between a challenge to a

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33
relief in immigration proceedings are guaranteed due process.
Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 384 (3d Cir.
2020) (addressing the procedural due process rights of persons
seeking asylum); see Galvan, 347 U.S. at 531 (“In the
enforcement of [immigration] policies, the Executive Branch
of the Government must respect the procedural safeguards of
due process.”).
Moreover, a noncitizen is “accorded a generous and
ascending scale of rights as he increases his identity with our
society.” Osorio-Martinez, 893 F.3d at 168 (quoting Kwong
Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953)). An
immigrant with LPR status has developed “substantial
connections with this country.” United States v. Verdugo-
Urquidez, 494 U.S. 259, 271 (1990). That makes him the
“quintessential example of [a noncitizen] entitled to ‘broad
constitutional protections.’” Osorio-Martinez, 893 F.3d at 174
(quoting Castro, 835 F.3d at 447). That entitlement includes
heightened procedural protections. See Sharkey, 541 F.3d at
86–87.
As discussed above, when 30 days elapsed without any
party initiating an appeal from the IJ’s April 2020 order,
discretionary decision to commence proceedings and “the
government’s very authority to commence those
proceedings”). Qatanani is seeking “to enforce the result of an
adjudication that has already taken place,” Chehazeh, 666 F.3d
at 137—the adjudication that conferred LPR status upon him.

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34
Qatanani’s admission with LPR status became final.17 As a
noncitizen with LPR status, he was entitled to heightened
procedural protections. See id. Permitting the BIA to rescind
his adjustment to LPR status outside of the process Congress
provided would violate those due process protections. See
Chrupcala v. Heckler, 829 F.2d 1269, 1273 (3d Cir. 1987)
(rejecting on procedural due process grounds an administrative
appeal body’s authority to review the grant of social security
benefits after the appeal period expired). It would eliminate
the security that attends LPR status, undermining Qatanani’s
ability to rely on his status to make decisions about home,
family, community, and career in this country. See Bamidele,
99 F.3d at 564. And the purported authority of the BIA to self-
certify late appeals of orders conferring LPR status would
subject permanent residents to the “embarrassment, expense
and ordeal . . . [of] liv[ing] in a continuing state of anxiety and
insecurity.” Chehazeh v. Att’y Gen., 666 F.3d 118, 137 (3d Cir.
2012) (citation omitted).
For all of these reasons, the BIA lacked authority to self-
certify a late appeal in this case. It also lacked authority to
issue an order of removal.18
17 We do not “make [Qatanani] a lawful permanent resident.”
Dissent at 1. The IJ did that, acting as the delegate of the
Attorney General. We grant Qatanani’s request to “enforce the
result of an adjudication that has already taken place,”
Chehazeh, 666 F.3d at 137, by providing his adjustment to LPR
status the protection Congress commanded.
18 The government argues that the IJ’s April 2020 order never
became final because Qatanani’s medical exam, fingerprints,

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35
C.
We briefly express our grave concerns with the
substance of the BIA’s 2024 decision. At several points, the
BIA ignored the IJ’s factfinding (including credibility
determinations), found facts for itself, substituted its view of
the facts in place of the IJ’s “permissible” view, and cherry-
picked from the record (rather than meaningfully considering
it as a whole), despite the clear instruction of our precedent and
its own regulations. See Alimbaev v. Att’y Gen., 872 F.3d 188,
195–200 (3d Cir. 2017); 8 C.F.R. § 1003.1(d)(3)(i), (iv).
Moreover, the BIA penalized Qatanani for quintessential First
Amendment activity. But we do not have occasion here to
adjudicate the merits of those issues given an even more
fundamental problem: The IJ’s April 2020 order adjusting
Qatanani’s status became final when no timely appeal was
filed, and the BIA lacked authority to hear DHS’s late appeal
of that order.
and background checks may have required updating,
(notwithstanding that the IJ and counsel for DHS confirmed
they were updated. At most, these issues go to whether the IJ
should have adjusted Qatanani’s status, not whether the IJ did
so. The government also questions whether the Secretary of
State allocated a visa number for Qatanani as required upon the
grant of LPR status. See 8 U.S.C. § 1255(b). But whether the
Secretary of State completed this ministerial task does not
affect the adjustment of Qatanani’s status. See Hanif v. Att’y
Gen., 694 F.3d 479, 485 (3d Cir. 2012).

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36
* * *
For the foregoing reasons, we granted Qatanani’s
petition for review and vacated the BIA’s order of removal in
our May 19, 2025, Judgment.

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1
MATEY, Circuit Judge, dissenting.
For more than a quarter century, five Presidents and ten
Attorneys General have objected to Mohammad Qatanani’s
presence in our Nation. After his three-year allowance ended
in 1999, these Executives and their representatives determined,
over and again, that Qatanani must leave. Yet today, this Court
makes him a lawful permanent resident because we have lost
the “respect for the functions of the other branches,” Webster
v. Doe, 486 U.S. 592, 609 (1988) (Scalia, J., dissenting), which
was grounded in “a judicial attitude founded in law and
hallowed by time” that “sees judicial review of agency action
and executive action as sensitive business” deserving
deference, Adrian Vermeule, A Traditional Respect for the
Functions of the Other Branches, The New Digest (Feb. 27,
2025). Our decision today forgets that humility and adds
another impediment to the Executive’s ability to carry out his
duty to take care of immigration matters, a power that is both
derived from congressional will and inherent in any sovereign.
Nearly thirty years ago, the same year Qatanani arrived
for his “temporary” visit to the United States, Congress, in an
action praised by then-President Clinton as a “landmark
immigration reform” that “strengthens the rule of law by
cracking down on illegal immigration at the border,”1 acted to
“‘protec[t] the Executive’s discretion’ from undue interference
1 William J. Clinton, Statement on Signing the Omnibus
Consolidated Appropriations Act, 1997 (Sept. 30, 1996),
available at Gerhard Peters and John T. Woolley, The
American Presidency Project, https://perma.cc/L47G-PSQQ.

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2
by the courts.”2 I would respect that political judgment,
mindful that “[n]o one, so far as my search of the several
constitutional records uncovered, look[s] to the Court for
‘leadership’ in resolving problems that Congress, the
President . . . failed to solve.”3 So with due regard for the
political branches’ control over immigration, I would dismiss
Qatanani’s petition.
I.
Qatanani entered the United States in 1996 on a H-1B
nonimmigrant visa with authorization to serve as an imam at
The Islamic Center of Passaic Country (ICPC) until April 1,
1999. Rather than leave, he applied to adjust his status to lawful
permanent residence (LPR). After almost two decades of
2 Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S.
103, 112 (2020) (alteration in original) (quoting Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486
(1999)); see Reno, 525 U.S. at 486 (“Of course many
provisions of IIRIRA are aimed at protecting the Executive’s
discretion from the courts—indeed, that can fairly be said to be
the theme of the legislation.”).
3 Raoul Berger, Government by Judiciary: The
Transformation of the Fourteenth Amendment 326 (2d ed.
1997).

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3
administrative proceedings,4 an Immigration Judge (IJ)5 found
Qatanani eligible for a status adjustment and deserving one as
a matter of discretion. But the Board of Immigration Appeals
4 DHS initiated removal proceedings in 2006, but the IJ
did not reach a preliminary decision until 2008. The BIA
reversed that decision in 2009, triggering nearly five more
years of administrative review, another interim appeal and
reversal by the BIA in 2014, followed by another three years
of hearings before the IJ closed the evidentiary record in 2017.
Not until three years later did the IJ grant Qatanani a status
adjustment, a decision the BIA reversed in 2024. None can
deny the Executive afforded Qatanani extensive, personalized
process.
5 As I have explained elsewhere, special inquiry officers
were renamed “immigration judges” in the 1970s to confer “a
more prestigious title.” David A. Martin, Major Issues in
Immigration Law 7 (Federal Judicial Center 1987);
Immigration Judge, 38 Fed. Reg. 8590 (Apr. 4, 1973);
Pino-Porras v. Att’y Gen., No. 22-3419, 2025 WL 1752491, at
*3 n.1 (3d Cir. June 25, 2025) (Matey, J., dissenting). This new
title needlessly promoted the “judicialization” of IJs, Martin,
supra, at 8, and brought understandable confusion as
commentators, and citizens, understandably assume these
employees exercise judicial, rather than executive power. But
they hold no power under Article III, and are merely inferior
officers of the United States, supervised by the Attorney
General, and, in turn, the President, performing only “such
duties as the Attorney General shall prescribe.” 8 U.S.C.
§ 1101(b)(4).

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4
(BIA) disagreed, noting Qatanani’s lack of candor,6 admitted
association with Hamas supporters, public call for a “new
intifada,” and failure to demonstrate yearly tax filings. A.R. 8.
As I explain below, I would not disturb the BIA’s decision.
II.
Qatanani raises three main arguments. First, he claims
the BIA could not review the IJ’s decision under 8 C.F.R.
§ 1003.1(c). But as I explain in Part III, the BIA’s authority to
self-certify a case is not temporally limited. Second, Qatanani
claims the BIA relied on facts not found by the IJ. That is either
incorrect, or a harmless error, as I explain in Part IV. Third,
Qatanani claims the BIA’s decision violated the First
Amendment by considering his call for a new intifada and
associations with Hamas supporters. But as I explain in Part V,
Qatanani is not a member of “the people” the First Amendment
6 As the majority notes, Qatanani was detained and
questioned by Israeli forces upon crossing into the West Bank
from Jordan in 1993. From 1985 to 1991, Qatanani was an
active member in the Muslim Brotherhood, which led to Israeli
suspicion that Qatanani was a “member of the Islamic
Resistance Movement; also known as HAMAS” because
“HAMAS had been formed from the Muslim Brotherhood” in
1987. A.R. 7170, 7460–61. The same year Qatanani was
detained by Israeli forces, Qatanani met with his now deceased
brother-in-law, Sumaia Abu Hanoud, whom Qatanani himself
described as the “military leader of HAMAS.” A.R. 7171.
Despite Qatanani’s acknowledgment of Hanoud’s leadership
in Hamas, Qatanani’s wife and her brothers have “denied the
relationship between Mr. Hanoud and HAMAS when
questioned by the U.S. authorities.” A.R. 7172.

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5
restricts government action against, nor is the denial of a status
adjustment a punitive action that could ever ground a First
Amendment claim. More broadly, Qatanani’s arguments and
the majority’s reasoning deviate from the nature of our
Nation’s immigration laws, and the tradition they are founded
on. So I begin by explaining the Executive’s role over
immigration.
Much of our present policy is governed by the
Immigration and Nationality Act (INA). 66 Stat. 163, as
amended 8 U.S.C. § 1101 et seq. But the ends enacted by
Congress are informed by principles animating the INA7 and
“any policy toward aliens” is “intricately interwoven with
contemporaneous policies in regard to the conduct of foreign
7 Statutes are merely “a communal directive,” Dig. 1.3.1
(Papinian, Definitions 1) (Alan Watson, trans., 1998), “the
lawmaker’s reasoned ordination for the common good”
expressed in text, Adrian Vermeule, Common Good
Constitutionalism 75 (2022). Since reasoned choices arise
against, and from, the natural law, Vermeule, supra, at 80, we
look to those principles to “ascertain the meaning and will of
the lawmaking body,” William M. Lile et al., Brief Making and
the Use of Law Books 337 (3d ed. 1914) (quoted in Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 12 (2012)). Otherwise, we miss “grasping
[statutes’] force and tendency.” Dig. 1.3.17 (Celsus, Digest
26); see also Richard Ekins, The Nature of Legislative Intent
245 (2012) (“[T]he central point of interpreting . . . some
legislature’s lawmaking act [is] to understand what they have
said and done, which means to identify the intentions on which
they acted and which they aimed—meant—to make
recognizable.”).

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6
relations, the war power, and the maintenance of a republican
form of government.” Harisiades v. Shaughnessy, 342 U.S.
580, 588–89 (1952). A sovereign’s control over immigration is
not a creation of our Constitution but is instead “an accepted
maxim of international law,” Nishimura Ekiu v. United States,
142 U.S. 651, 659 (1892), so I turn first to that universal
understanding.
A sovereign may always “forbid the entrance of his
territory either to foreigners in general or in particular cases, or
to certain persons or for certain particular purposes.”8 As part
of that duty, a sovereign has complete discretion to determine
who it deems worthy to enter all parts of its political
community.9 Necessarily, there is no obligation to accept all
8 Emmerich de Vattel, The Laws of Nations § 94, at
169–70 (Philadelphia, Joseph Chitty ed., R. & J. W. Johnson
1852) (1758); see also 1 Robert Phillimore, Commentaries
Upon International Law 320 (London, Butterworths 3d ed.
1879) (“[T]he Government of a State may prohibit the entrance
of strangers into the country . . . .”); Samuel Pufendorf, Of the
Law of Nature and Nations c. 3, § 9, at 245–46 (London, Basil
Kennett trans., 4th ed. 1729) (explaining sovereigns may grant
“[l]icence to Foreigners to come and settle amongst them”).
9 Vattel explained a sovereign can admit and expel a
foreigner from the land “as he may think it advantageous to the
state.” Vattel, supra, at 170. As Phillimore put it, a sovereign
“regulate[s] the conditions under which [foreigners] shall be
allowed to remain in [the territory[], or may require and compel
their departure from it.” Phillimore, supra, at 320. This
discretion to extend foreigners the privilege to be within a
sovereign’s domain was only exercised favorably if a foreigner
“submit[s] to the establish’d Government, and behave[s]

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7
aliens under all circumstances.10 The English tradition
mirrored this understanding of sovereign discretion, granting
the King sole administrative power. See 1 William Blackstone,
Commentaries *259–60 (explaining that “strangers” to the
nation are “liable to be sent home whenever the king sees
occasion”).11 The American practice followed England’s lead,
vesting immigration choices in the political branches. See
Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“[C]ontrol over
matters of immigration is a sovereign prerogative, largely
within the control of the executive and the legislature.”).12
themselves with such Prudence and Decency, as to administer
no occasion to Factions and Seditions” or “endanger the
Natives.” Pufendorf, supra, at §§ 9–10, 245–46.
10 Pufendorf, supra, at § 10, 246 (explaining that
“[h]umanity” does not counsel a sovereign to accept a
foreigner who was “expell’d their Home” “for their own
Demerit and Crime”).
11 See also John Locke, Second Treatise of Civil
Government §§ 146–47, at 73 (J.W. Gough ed., Basil
Blackwell 1948) (1690) (noting the power to act toward
“foreigners, depending much upon their actions, and the
variation of designs and interests, must be left in great part to
the prudence” of the executive “who ha[s] this power
committed to them, to be managed by the best of their skill, for
the advantage of the commonwealth”).
12 See also Fong Yue Ting v. United States, 149 U.S.
698, 707 (1893) (“The right to exclude or to expel all aliens, or
any class of aliens, absolutely or upon certain conditions, in
war or in peace, [is] an inherent and inalienable right of every
sovereign and independent nation, essential to its safety, its
independence, and its welfare . . . .”); Ping v. United States,
130 U.S. 581, 603–04 (1889) (“Jurisdiction over its own

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8
Because a sovereign holds the duty to control who may
enter its borders, an alien’s license to remain within our Nation
is always “a matter of grace, not right.” Elkins v. Moreno, 435
U.S. 647, 667 (1978); see also Ameeriar v. Immigr. &
Naturalization Serv., 438 F.2d 1028, 1030 (3d Cir. 1971) (en
banc) (“Adjustment of status is . . . a matter of administrative
grace, not mere statutory eligibility.”). That is because
“[a]dmission of aliens to the United States is a privilege
granted by the sovereign United States Government . . . only
upon such terms as the United States shall prescribe.” Knauff
v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon,
459 U.S. at 32 (“This Court has long held that an alien seeking
initial admission to the United States requests a privilege and
has no constitutional rights regarding his application, for the
power to admit or exclude aliens is a sovereign prerogative.”).
The Sovereign’s duty to police its borders imposes a
continuous prerogative, one Congress codified in the INA. The
design of the INA embraces Executive reassessment of aliens,
confirming constant oversight and corresponding authority to
conclude that the grace by which an alien was permitted to
territory to that extent is an incident of every independent
nation. It is a part of its independence. If it could not exclude
aliens it would be to that extent subject to the control of another
power.”); Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)
(“The exclusion of aliens is a fundamental act of sovereignty.
The right to do so stems not alone from legislative power but
is inherent in the executive power to control the foreign affairs
of the nation. When Congress prescribes a procedure
concerning the admissibility of aliens, it is not dealing alone
with a legislative power. It is implementing an inherent
executive power.”).

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9
enter and remain in our Nation is no longer due. Executive
immigration decisions, unlike judicial judgments, necessarily
fluctuate and so do not possess the finality associated with
ordinary civil or criminal cases.13 That is true even if an alien
naturalizes.14 All meaning that no judicial-like finality
13 For example, the Attorney General is not constrained
in ordering “any person not a citizen or national of the United
States,” 8 U.S.C. § 1101(a)(3), removed if—regardless of
status—the alien “has engaged in a terrorist activity,” 8 U.S.C.
§ 1182(a)(3)(B)(i)(I), or “endorses or espouses terrorist
activity or persuades others to endorse or espouse terrorist
activity or support a terrorist organization,”
§ 1182(a)(3)(B)(i)(VII). See 8 U.S.C. § 1227(a)(4)(B) (“Any
alien who is described in subparagraph (B) or (F) of section
1182(a)(3) of this title is deportable.”).
14 If an alien became a naturalized citizen “upon the
basis of a record of a lawful admission for permanent
residence” that was “created as a result of an adjustment of
status for which such person was in fact not eligible,” his LPR
status may be rescinded and his naturalization may be revoked.
8 U.S.C. § 1256(b). Naturalization can also be revoked on
other grounds under 8 U.S.C. § 1451, including when a
naturalized person “become[s] a member of or affiliated with
any organization . . . with which at the time of naturalization
would have precluded such person from naturalization.”
§ 1451(c). That action is “considered prima facia evidence that
such person was not attached to the principles of the
Constitution of the United States and was not well disposed to
the good order and happiness of the United States at the time
of naturalization.” § 1451(c). And the Attorney General has the
power to “correct, reopen, alter, modify, or vacate an order
naturalizing the person.” § 1451(h).

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10
descends upon immigration decisions, including discretionary
status adjustment determinations. And that is where the
majority and I part: due regard for the political questions
inherent in immigration leaves no room for judicial policing
over policy.15
15 By “political questions” I refer not to modern tests
from caselaw, but the original principle that discretionary
judgments assigned to, or arising in, the political process
cannot involve the judicial power over cases and controversies.
Many have rightly criticized the reimagining of this limitation
in Baker v. Carr, 369 U.S. 186 (1962), as doubly deceitful.
Baker stingily cabins the deference owed to the political
branches while expanding judicial review all under the guise
of restraint. But “[t]he distinction in constitutional law between
political and legal questions has been with us from the
beginning.” Robert F. Nagel, Political Law, Legalistic Politics:
A Recent History of the Political Question Doctrine, 56 Chi. L.
Rev. 643, 644 (1989). Unfortunately, adherence to that “old
fashioned” principle changed with Baker, which through the
“the lens of modern functionalism” limited the scope of the
political question doctrine by replacing “observation” and
“rationalization” with “functional analysis” to “expand[] the
judiciary’s role.” Id. at 644–46. Such perversion of
long-standing principle, “extend[ed] the judicial function
beyond its bounds,” resulting in “a pedantic and academic
treatment of the texts of the constitution and laws,” far
removed from “ordinary and humble judicial duty.” James B.
Thayer, The Origin and Scope of the American Doctrine of
Constitutional Law, 7 Harv. L. Rev. 129, 138 (1893).
Instead, courts should observe the firmer, older view
that “[i]n the case of purely political acts and of the exercise of
mere discretion, it mattered not that other departments were

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11
III.
The majority contends LPR status became final when
DHS’s appeal window expired, an argument Qatanani failed to
exhaust, and a conclusion that conflicts with the BIA’s codified
authority.
violating the constitution, the judiciary could not interfere; on
the contrary, they must accept and enforce their acts.” Id. at
134–35; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137,
170–71 (1803); Decatur v. Paulding, 39 U.S. (14 Pet.) 497,
515 (1840). It is not balancing factors that make the Attorney
General’s discretion unreviewable, but the nature of
immigration decisions inherent in Sovereignty. See Oliver P.
Field, The Doctrine of Political Questions in the Federal
Courts, 8 Minn. L. Rev. 485, 492–94 (1924); Lem Moon Sing
v. United States, 158 U.S. 538, 548 (1895) (whether an alien
may remain is “a matter wholly political in its character,” that
must be made “exclusively and finally, in every instance, by
executive officers charged by an act of congress with the duty
of executing the will of the political department of the
government”). Fear that such power by the political branches
“may be abused” provides no justification for departing from
this longstanding principle. Martin v. Mott, 25 U.S. (12
Wheat.) 19, 32 (1827). The remedy for abuse “as well as for all
other official misconduct” “is to be found in the constitution
itself. In a free government, the danger must be remote, since
in addition to the high qualities which the Executive must be
presumed to possess, of public virtue, and honest devotion to
the public interests, the frequency of elections, and the
watchfulness of the representatives of the nation, carry with
them all the checks which can be useful to guard against
usurpation or wanton tyranny.” Id.

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12
A.
Start with exhaustion, as we “may review a final order
of removal only if . . . the alien has exhausted all administrative
remedies available.” 8 U.S.C. § 1252(d). Qatanani has not. He
never argued before the BIA that his LPR status was final and
could not be rescinded absent compliance with 8 U.S.C.
§ 1256(a) (rescission of status adjustment) or 8 U.S.C. §§ 1229
and 1229a (commencement of new removal proceedings). The
Attorney General noted Qatanani’s failure to comply with
section 1252(d)(1), so “we ‘must enforce the rule,’” Aguilar v.
Att’y Gen., 107 F.4th 164, 169 (3d Cir. 2024) (quoting Fort
Bend Cnty. v. Davis, 587 U.S. 541, 549 (2019)).
Qatanani tries to justify his noncompliance by
repackaging his claims as a facial challenge to the “validity of
the BIA’s certification regulation.” Opening Br. 26. He reasons
that because the BIA lacks authority to consider challenges to
its own regulations, exhaustion was unnecessary. Not so.
Although the BIA will not review challenges to the validity or
constitutionality of its own regulations, Matter of Anselmo, 20
I. & N. Dec. 25, 30 (BIA 1989), it can consider challenges to
its own application of a regulation in specific circumstances.
Thus, his “claim was within the jurisdiction of the BIA to
consider,” and the BIA “was capable of granting the remedy
sought by the alien,” so it is subject to administrative
exhaustion. Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d
Cir. 2005).
Following our usual practice of requiring a petitioner
“make[] some effort . . . to place the Board on notice” of the
issue, Nkomo v. Att’y Gen., 986 F.3d 268, 272 (3d Cir. 2021),

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13
makes much sense here. If Qatanani had advised the BIA of his
construction of section 1003.1(c) and offered his arguments
about the burdens and hardships of using that authority in his
case—points he argued on appeal for the first time—the BIA
might well have agreed. That would have obviated our wading
into a host of novel questions without any chance for
administrative input. Reaching to resolve niche questions
about obscure procedural practices presents the sort of risks,
inefficiencies, and intrusions into the Executive that animate
the statutory exhaustion requirement. I would apply that sound
limitation here.
B.
On the merits, the IJ’s decision did not result in a final
status adjustment because the BIA self-certified Qatanani’s
case for review. That decision was proper because 1) there is
no temporal limit on the BIA’s certification authority, and 2)
the certification regulation does not conflict with the statutory
scheme for rescinding LPR status.
1.
Ordinarily, “the decision of the Immigration Judge
becomes final upon waiver of appeal or upon expiration of the
time to appeal if no appeal is taken whichever occurs first.”
8 C.F.R. § 1003.39. Any notice of appeal “shall be
filed . . . within 30 calendar days after the stating of an
immigration judge’s oral decision or the mailing or electronic
notification of an immigration judge’s written decision.”
8 C.F.R. § 1003.38(b). Typically, then, an IJ’s decision would
be treated as final within thirty calendar days absent appeal.
§ 1003.38. But section 1003.39 explains “the decision of the

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14
Immigration Judge becomes final” “[e]xcept when certified to
the Board.” That carveout controls this case. The majority
disagrees and cabins the BIA’s ability to certify a case to the
thirty-day window for appeal, imposing a limitation absent
from regulation and statute.
Certification is a compliment to the appeals process, one
that allows the Attorney General to discharge the Executive’s
duty to oversee immigration decisions. Embodying the
responsibility to ensure consistent and suitable judgments
within the Executive branch, the BIA’s certification power
extends to any case over which it has appellate jurisdiction,
including decisions of an IJ in removal proceedings16 or on an
application for adjustment of status.17 § 1003.1(c).
A case can be certified to the BIA by an IJ, DHS, or the
BIA itself. Id. Requests by an IJ or DHS are limited to the
timeframe “after an initial decision has been made and before
an appeal has been taken.” 8 C.F.R. § 1003.7. That means
certifications sought by an IJ or DHS must occur inside the
thirty-day appeal window.18 But no similar temporal limitation
is placed on the BIA’s certification authority. Instead, “[t]he
Board, in its discretion, may review any such case by
certification without regard to” the temporal limits placed on
an IJ or DHS officer under section 1003.7 if “the parties have
already been given a fair opportunity to make representations
16 See § 1003.1(b)(3).
17 See § 1003.1(b)(12).
18 See § 1003.38(b) (requiring any notice of appeal of an
IJ’s decision to be filed “within 30 calendar days after the
stating of an [IJ’s] oral decision or the mailing or electronic
notification of an [IJ’s] written decision”).

-- 50 of 75 --

15
before the Board regarding the case, including the opportunity
to request oral argument and to submit a brief.” § 1003.1(c). So
to give meaning to “every word and every provision” in both
sections 1003.1(c) and 1003.7, the BIA’s certification
authority cannot be limited to the thirty-day appeal window.
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 174 (2012) (citing Dig. 2.7.5.2
(Ulpian, Edict 5) (“Words are to be taken as having an
effect.”)). The absence of a temporal restriction on the BIA’s
authority to self-certify a case is not a defect, evidenced by a
parallel regulation giving the BIA power to review its own
prior decisions sua sponte and without a temporal restriction,
see 8 C.F.R. § 1003.2(a), one we have recognized, see Park v.
Att’y Gen., 846 F.3d 645, 647–48 (3d Cir. 2017). As a result,
the BIA’s discretion to revisit both an IJ’s decision and its own
decisions “is broad—so broad, in fact, that we have no
meaningful way to review it, thereby depriving us of
jurisdiction.” Park, 846 F.3d at 648. In sum, an IJ’s decision
can be reviewed whenever the BIA self-certifies the case.
2.
The majority does not disagree with the ordinary
reading of section 1003.1(c); rather, it sees irreconcilable
tension with statutory authority over ministerial acts
accompanying status adjustments and the recission of LPR
status. But none exists.
First, there is no conflict between the BIA’s authority to
self-certify a case under section 1003.1(c) and recission of
status under section 1256(a). Status adjustments involve a
two-step inquiry. 8 U.S.C. § 1255(a). First, the alien must
prove he is “eligible” by demonstrating the “threshold

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16
requirements established by Congress.” Patel v. Garland, 596
U.S. 328, 332 (2022); see also §§ 1255(a), 1182. Second, the
alien must also persuade the Executive that “he merits a
favorable exercise of discretion.” Patel, 596 U.S. at 332.
Section 1256(a) concerns solely the first step, and the Attorney
General may rescind a status adjustment only if the alien was
ineligible for a status adjustment within five years of the
adjustment.19 But section 1256(a) says nothing about the
discretionary judgment of the Attorney General’s analysis.
Thus, while the statutory scheme Congress created for
rescinding LPR status is cabined to eligibility determinations,
the BIA’s certification authority permits the Executive to
review the discretionary determination whether an alien’s
presence remains preferable. Properly framed, the purported
problems among sections 1003.1(c) and 1256(a) fall away as
they each relate to a different part of the status adjustment
analysis.
Second, the administrative acts that follow a status
adjustment pose no conflict with the BIA’s ongoing
certification authority. As the majority explains, the Attorney
General must record a status adjustment “as of the date [of] the
order,” while the “Secretary of State shall reduce by one the
number of the preference visas authorized to be issued.”
§ 1255(b). Both are mere ministerial acts to track the ebb and
flow of aliens in our Nation. But they say nothing about the
status conferred to the alien and its duration. Nor do these
19 See § 1256(a) (permitting the Attorney General to
rescind LPR status if it “appear[s] to the satisfaction of the
Attorney General that the person was not in fact eligible for
such adjustment of status” and treat the alien “to the same
extent as if the adjustment of status had not been made”).

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17
record keeping requirements in any way cabin future Executive
action to reconsider earlier assessments. Such secretarial
systems are silent as to the substance of the Executive’s
authority to evaluate the suitability of status adjustments.
Distilled down, the majority’s view that section
1003.1(c) conflicts with the statutory scheme for rescinding
LPR status is grounded in the view that, at some point,
immigration decisions must become final, permanent, and
unchangeable. But as explained in Part II, immigration is a
tiered process through which the Executive exercises authority
under the INA and its inherent power to continually reevaluate
an alien’s request to remain within our Nation. And as licenses
to remain are always a matter of administrative grace, nothing
unexpected, much less unfair, follows from fresh Executive
review through perpetual certification authority.20
20 The majority invokes notions of due process to
ground its view that status adjustments are final. That is
unwarranted as Qatanani never raised a due process claim
before the BIA and has expressly declined to develop any such
argument in this appeal, making the observations dicta. And
any discussion of that notoriously vague phrase requires
precision. The Fifth Amendment does not create an individual
right, but instead serves as a restriction on government,
“secur[ing] the individual from the arbitrary exercise of the
powers of government.” Bank of Columbia v. Okely, 17 U.S.
(4 Wheat.) 235, 244 (1819); see also Hurtado v. California,
110 U.S. 516, 527 (1884). There are no freestanding
substantive rights to oppose all government action, only a
commitment to a set of procedures that, if established,
government must follow before acting against an individual’s
life, liberty, or property. See Nathan S. Chapman, Due Process

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18
The BIA did not err in self-certifying the IJ’s decision
for review because no restriction temporally limits its
certification authority. And because certification occurred, the
IJ’s decision granting Qatanani a status adjustment was subject
to review and revision.
IV.
I consider next the BIA’s conclusion that Qatanani did
not warrant a status adjustment as a matter of discretion based
on four adverse factors: 1) his lack of candor in disclosing his
detention in Israel, 2) his failure to submit proof that he
Abroad, 112 Nw. U. L. Rev. 377, 441 (2017) (“The original
understanding of due process guaranteed that courts would
enforce constitutional and statutory limits on governmental
deprivations of ‘life, liberty, or property.’”).
With that proper framing in mind, the majority’s due
process discussion makes two errors. First, the majority
assumes the conversion of status to LPR, the very issue on
appeal before the BIA. Second, even accepting Qatanani
maintained LPR status at the time of the BIA appeal, no
process was skipped. An alien with LPR status must receive “a
fair hearing.” Landon, 459 U.S. at 32. And when certifying a
case for review beyond the thirty-day appeal window, the BIA
must provide the parties an “opportunity to make
representations before the Board regarding the case, including
the opportunity to request oral argument and to submit a brief,”
§ 1003.1(c), which occurred here. So the BIA gave Qatanani
all the process he was owed on appeal. Not to mention the
twenty-five years of extensive process the Executive has
afforded Qatanani since 1999, the sole reason he remains
present.

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19
consistently filed taxes, 3) his public call for a new intifada,
and 4) his admitted associations with supporters of the terrorist
organization Hamas. Qatanani says the BIA’s reasoning
hinged on impermissible factual findings. I disagree. And I
note the narrow margin of my review, mindful that Congress
asks the Executive, not the courts, to decide questions about
status adjustments. § 1255(a). With due regard for the
Executive’s authority over such political questions, Congress
stripped our jurisdiction to second guess the Executive’s status
adjustment determinations and the necessarily fact-sensitive
issues that accompany those decisions, 8 U.S.C.
§ 1252(a)(2)(B)(ii), leaving us to review only “whether the
agency made an error of law,” Cortez-Amador v. Att’y Gen.,
66 F.4th 429, 434 (3d Cir. 2023); see § 1252(a)(2)(D). Here,
none occurred.
A.
Qatanani contends the BIA misconstrued facts found by
the IJ regarding his lack of candor and failure to file tax returns.
The BIA is prohibited from “engag[ing] in de novo review of
findings of fact determined by an [IJ].” § 1003.1(d)(3)(i). So if
the BIA’s “characterization of the record appears inaccurate
and reflects a decision to ‘ignor[e]’ evidence crucial to [the]
case” or reweigh testimony, Alimbaev v. Att’y Gen., 872 F.3d
188, 200 (3d Cir. 2017) (quoting Kabba v. Mukasey, 530 F.3d
1239, 1247 (10th Cir. 2008)), then the BIA has exceeded its
authority. Here, at most, the BIA repeated findings made by
the IJ or looked to facts undisputed in the record, neither of
which amounts to fresh findings.

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20
1.
In reaching its conclusion that Qatanani’s “lack of
candor on his application for adjustment of status” counseled
against a status adjustment, the BIA relied on the facts noted
by the IJ. A.R. 7. The BIA pointed to Qatanani’s failure to
disclose “his detention in the West Bank” on his adjustment
application. A.R. 7. And based on Qatanani’s educational and
professional accomplishments, see Majority Op. at 4, and his
assistance of counsel in submitting his adjustment
application—all facts the IJ noted—the BIA concluded his
failure to disclose his detention, even if not a willful material
misrepresentation, still reflected a lack of candor. The same
conclusion drawn by the IJ about Qatanani’s lack of candor
based on the same facts the BIA noted. Regardless of whether
the BIA quoted the IJ’s words directly or rephrased them, it did
not substitute findings or discover new facts beyond the record.
2.
The same conclusion applies to the BIA’s determination
that Qatanani failed to “present[] sufficient evidence of having
filed tax returns for the years 2011-2016,” A.R. 10, facts
apparent from the record. The BIA did not suggest, let alone
find, that Qatanani failed to file his taxes, it merely noted
Qatanani omitted those filings.21 Pared down, Qatanani’s
21 While the IJ stated that Qatanani “has consistently
paid his taxes,” A.R. 437, even Qatanani concedes the record
contains no evidence of returns from 2011 to 2016. Whatever
the IJ meant by “consistently,” his statement cannot be
construed as a finding that Qatanani filed taxes from 2011 to
2016.

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21
argument amounts to mere disagreement with the BIA, but we
lack jurisdiction to review the BIA’s discretionary decision to
treat certain facts as adverse. See Zheng v. Gonzales, 422 F.3d
98, 111 (3d Cir. 2005) (“[Section 1252(a)(2)(B)(i)] plainly
forecloses review of the Attorney General’s exercise of
discretion in granting adjustment of status in individual
cases . . . .”).
B.
Next, Qatanani quarrels with the BIA’s review of his
speech in Times Square. Let us first set the stage. Qatanani was
a featured speaker at rally in Times Square protesting the
President’s decision to recognize Jerusalem as the capital of
Israel, and to relocate the United States embassy from Tel Aviv
to Jerusalem. As a lead speaker, Qatanani urged the crowd:
“No peace process and negotiation without liberation in
Palestine. [Oslo] has to be stopped and finished. We have to
start a new intifada. Intifada, intifada!” A.R. 1410, 1575.
Qatanani then led the attendees in a call and response exchange
of “Intifada, Intifada!” A.R. 1410. Qatanani again extolled the
crowd that “The time now is different! It is not nineteen ninety-
five,” to which the crowd responded, “With our soul, with our
blood, we will sacrifice [these] for you, Al-Aqsa.” A.R. 1410.22
22 Around the same time as Qatanani’s speech, Hamas
released statements similarly denouncing peace and calling for
a new intifada. At the time DHS moved to enter his speech into
the evidentiary record, those calls had led to multiple outbreaks
of violence, resulting in “deaths and hundreds of injuries.”
A.R. 1575. Unfortunately, the “incessant calls” to “globalize
the intifada” continue on today, and tragically have only
“soften[ed] the ground for future attacks against Jews.” Lee P.

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22
None challenge the accuracy of this account.23 The IJ said
intifada means “rebellion” or “uprising,” but declined to say
whether it called for violence. A.R. 437–38. The BIA affirmed
that view, noting “intifada” means “an armed uprising against
another sovereign nation.” A.R. 9. In my view, neither exercise
in reading amounts to a factual finding about Qatanani’s intent.
But even assuming they are, the BIA properly applied
clear-error review.
This is a narrow disagreement about a dictionary entry.
The IJ looked to Merriam-Webster, but despite the clear
definition of “intifada” as an “uprising” or “rebellion,” could
not “decipher what [Qatanani’s] ‘new intifada’ would entail.”
A.R. 438. Then, based on nothing more, the IJ decided
Qatanani’s speech was a “peaceful demonstration.” A.R. 438.
The IJ made no credibility determination and resolved no
disputed facts. He just looked up a word, incorrectly it turns
out.24 The BIA did the same but read the whole entry, which
included “an armed uprising of Palestinians against Israeli
occupation.” A.R. 9.25 If it was permissible for the IJ to look
Rudofsky, et al., Make Sarah and Yaron’s Memory a Blessing,
The Dispatch (May 28, 2025), https://perma.cc/4BY7-469A.
23 To view Qatanani’s full remarks, see Times Square
Rally Opposing Jerusalem as Capital of Israel, Youtube at
17:66–20:36 (Dec. 8, 2017), https://perma.cc/J6KM-ASB5.
24 It appears the IJ quoted the synonyms provided for
“intifada,” not the definition. See Intifada, Merriam-Webster,
https://perma.cc/78F4-V6G9 (last visited Apr. 23, 2025).
25 Of course, “the word intifada is no mystery: It’s a
reference to armed violence—harkening back to the
Palestinian terrorism of the First and Second Intifadas in
Israel.” Rudofsky, supra.

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23
up a word, then it is permissible for the BIA to read the full
definition.
But even if buried somewhere in the IJ’s synonym
pursual is a factual finding, the BIA correctly applied the
clear-error standard in reversing. True, the BIA cannot “engage
in de novo review of findings of fact determined by an [IJ].”
§ 1003.1(d)(3)(i). But the BIA may review factual findings “to
determine whether the findings of the [IJ] are clearly
erroneous,” § 1003.1(d)(3)(i), so long as it “identifies specific
reasons for forming a definite and firm conviction that a
mistake has been made,” Alimbaev, 872 F.3d at 196 (citation
and quotation omitted). The BIA did just that, providing
specific explanations for how the IJ erred in finding “intifada”
does not denote at least some sort of violence given its
definition as “an armed uprising.” A.R. 9. The BIA ignored no
contrary evidence, acknowledged the parties’ differing
positions, and did not disturb the IJ’s credibility conclusions.
See Alimbaev, 872 F.3d at 197. If clear-error analysis applies,
the IJ was clearly incorrect.
C.
The BIA also considered Qatanani’s “admitted
connections to people who have fundraised for Hamas” to
counsel against a status adjustment. A.R. 8. That conclusion is
not impugned with reliance on impermissibly found facts.
Even if it were, such error is harmless.
First, the BIA merely pointed to Qatanani’s own
admissions about his connections to people he acknowledged

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24
raised funds for Hamas.26 Nothing prohibits the BIA from
considering uncontested facts, even those the IJ did not
mention.27 That is because when the IJ credits the petitioner’s
testimony, as the IJ did here, “a reviewing court is as competent
as an immigration judge to draw logical inferences from those
facts.” Jishiashvili v. Att’y Gen., 402 F.3d 386, 398 (3d Cir.
2005) (Aldisert, J., concurring). Otherwise, the BIA would be
limited to considering only the parts of the record an IJ cited in
rendering a decision.
But even construing the BIA’s analysis as error, it was
harmless. We have repeatedly explained harmless error is not
enough to disturb the Executive’s immigration decisions.28 An
error is “harmless” “when it is highly probable that the error
did not affect the outcome of the case.” Yuan v. Att’y Gen., 642
F.3d 420, 427 (3d Cir. 2011). A sensible limitation, since “[t]he
pursuit of perfection is particularly unwise in the immigration
26 The BIA cited the transcript of Qatanani’s testimony
before the IJ on June 2, 2008, that 1) Qatanani donated money
to the Holy Land Foundation before it was shut down in 2001
for providing material support to Hamas; 2) the ICPC, where
he serves as imam, donated money to the Holy Land
Foundation and held fundraisers for it; and 3) the second imam
at ICPC Qatanani worked with was prosecuted for fundraising
for Hamas.
27 See Wallace v. Gonzales, 463 F.3d 135, 141 (2d Cir.
2006) (per curiam); Chen v. Holder, 703 F.3d 17, 23 (1st Cir.
2012). 28 See, e.g., Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d
Cir. 2011); Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 144 (3d
Cir. 2021); Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 86 n.5
(3d Cir. 2021).

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25
context,” where “[n]o principle of administrative law or
common sense requires us to remand a case in quest of a perfect
opinion unless there is reason to believe that the remand might
lead to a different result.” Shkabari v. Gonzales, 427 F.3d 324,
328 (6th Cir. 2005) (quoting Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989)). That is the case here because any error
about Qatanani’s donations was harmless considering
Qatanani’s other admitted associations to Hamas supporters.
V.
Finally, I explain why the BIA’s review of Qatanani’s
Times Square speech and admitted associations with Hamas
supporters does not violate the First Amendment. Of course,
an alien’s speech can offer important insight into his character
that informs the Executive’s determination about whether the
alien’s presence will add to the common good. None disagree
with that observation, nor does the First Amendment because
Qatanani is not part of “the people” the First Amendment
protects, nor is the denial of LPR status a punitive action.
A.
Under the First Amendment, “Congress shall make no
law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and
to petition the government for a redress of grievances.” U.S.
Const. amend. I. This guarantee cannot be invoked by aliens
excluded from our borders because an alien “does not become
one of the people to whom” the First Amendment applies “by
an attempt to enter, forbidden by law.” U.S. ex rel. Turner v.
Williams, 194 U.S. 279, 292 (1904). That is because “[t]o

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26
appeal to the Constitution is to concede that this is a land
governed by that supreme law, and as under it the power to
exclude has been determined to exist, those who are excluded
cannot assert the rights in general obtaining in a land to which
they do not belong as citizens or otherwise.” Id. So there is no
debate that excluded aliens cannot invoke the First
Amendment.29
Whether the First Amendment restrains government
action against all aliens within our Nation’s borders is less
explored. Begin with Bridges v. California, involving state
contempt charges against a group including a resident alien
lawfully within the country for at least two decades. 314 U.S.
252 (1941); Bridges v. Wixon, 326 U.S. 135, 137 (1945). With
little analysis, the Court concluded the contempt charge was
impermissible under the First Amendment. Bridges, 314 U.S.
at 270–78. But the Court did not mention, let alone analyze,
Bridges’s alien status. A few years later, the Court considered
whether Bridges, still a lawful resident alien, was removable
under 8 U.S.C. § 137(f) for affiliation with the Communist
Party. Wixon, 326 U.S. at 141. The majority saw insufficient
29 Aliens on the threshold of initial entry are treated as
excluded. See Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 212 (1953). So too are aliens who unlawfully step
foot within our borders but are shortly stopped before
developing substantial connections with our Nation akin to
permanent residence. United States v. Ju Toy, 198 U.S. 253,
263 (1905). And aliens paroled into the country are also seen
as excluded because they are treated as if stopped at the border
while administrative proceedings ensue. Thuraissigiam, 591
U.S. at 139; see also Leng May Ma v. Barber, 357 U.S. 185,
190 (1958).

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27
evidence of his alleged membership but, in dicta, wrote that
“[f]reedom of speech and press is accorded aliens residing in
this country,” citing only the earlier decision in Bridges v.
California. Id. at 148. Concurring, Justice Murphy wrote that
the statute was unconstitutional and that all aliens lawfully
within our borders receive “the immutable freedoms
guaranteed by the Bill of Rights,” including freedom of speech.
Id. at 160 (Murphy, J., concurring); see id. at 161–62. But
Chief Justice Stone and Justices Roberts and Frankfurter found
no fault with the statute based on Congress’s “plenary power
over the deportation of aliens.” Id. at 167 (Stone, C.J.,
dissenting). So Wixon does not resolve whether the First
Amendment applies to all resident aliens, much less
unauthorized aliens.30 At most, its dicta suggests that lawful
30 Little has been clarified since Wixon. The Court has
continued to acknowledge lawful resident aliens receive First
Amendment protections, but it has never held the First
Amendment restrains government action against aliens with
less protective status. See, e.g., United States v. Verdugo-
Urquidez, 494 U.S. 259, 271 (1990). Some decisions correctly
understand Wixon to address no more than LPRs. See, e.g.,
OPAWL - Bldg. AAPI Feminist Leadership v. Yost, 118 F.4th
770, 776 (6th Cir. 2024); Nat’l Council of Resistance of Iran v.
Dep’t of State, 251 F.3d 192, 203 (D.C. Cir. 2001). But others
read Wixon with less nuance and assume any alien within the
country holds First Amendment guarantees, regardless of
whether the alien is an LPR, only has temporary authorization
to be in the country, or is here illegally. See, e.g., Kim Ho Ma
v. Ashcroft, 257 F.3d 1095, 1109 n.23 (9th Cir. 2001);
Underwager v. Channel 9 Austl., 69 F.3d 361, 365 (9th Cir.
1995); Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d
1045, 1056 (9th Cir. 1995).

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28
resident aliens, what we today could call LPRs, can potentially
invoke the First Amendment in some criminal prosecutions.
Our Nation’s longstanding practice also yields few
insights, as there is no unbroken chain of understanding or
“regular course of practice” that might “liquidate & settle the
meaning” of the First Amendment’s applicability to aliens.
Letter to S. Roane (Sept. 2, 1819), in 8 The Writings of James
Madison 450 (1908); see also N.Y. State Rifle & Pistol Ass’n,
Inc. v. Bruen, 597 U.S. 1, 35–36 (2022). Nor is there any
evidence of “a governmental practice [that] has been open,
widespread, and unchallenged since the early days of the
Republic,” that might “guide our interpretation.” Nat’l Lab.
Rel. Bd. v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J.,
concurring in the judgment). All to say, there is no long
standing post-enactment practice—custom, we might properly
call it—recognizing all aliens within our borders possess First
Amendment rights.
B.
But lack of precedent and practice does not mean an
absence of answer derived from “the natural principles that
support our legal tradition,” Range v. Att’y Gen., 124 F.4th
218, 234–35 (3d Cir. 2024) (Matey, J., concurring), which are
the “certain ‘primary truths, or first principles, upon which all
subsequent reasoning must depend,’” id. at 234–35 (quoting
The Federalist No. 31, at 193 (Alexander Hamilton) (C.
Rossiter ed., 1961)).
We know that many aliens within our borders do not
enjoy constitutional protections against state action. Much like
the Preamble and the Second, Fourth, Ninth, and Tenth
Amendments, the First Amendment uses the term “the

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29
people,”31 referring “to a class of persons who are part of a
national community or who have otherwise developed
sufficient connections with this country to be considered part
of that community.” United States v. Verdugo-Urquidez, 494
U.S. 259, 265 (1990); see Dist. of Columbia. v. Heller, 554
U.S. 570, 580 (2008) (noting “provisions of the Constitution
that mention ‘the people,’” “refer[] to all members of the
political community”). Only as an alien “increases his identity
with our society” do the “generous and ascending scale of
rights” spring into action, Verdugo-Urquidez, 494 U.S. at 269
(quoting Johnson v. Eisentrager, 339 U.S. 763, 770 (1950)),
some of which include the “constitutional provisions [that]
extend beyond the citizenry,” id. at 269. But neither “lawful
but involuntary” entry, nor mere physical entry without
“significant voluntary connection[s],” suffice for an alien to
become part of “the people.” Id. at 271.
This distinction makes sense, as it has long been
accepted that a sovereign’s laws, including restrictions and
31 The use of “the people” elsewhere in the Constitution
aligns with the political class. See U.S. Const. art. I, § 2, cl. 1
(“The House of Representatives shall be composed of
Members chosen every second Year by the People of the
several States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous
Branch of the State Legislature.”); id. amend. XVII (“The
Senate of the United States shall be composed of two Senators
from each State, elected by the people thereof, for six years;
and each Senator shall have one vote. . . . Provided, [t]hat the
legislature of any State may empower the executive thereof to
make temporary appointments until the people fill the
vacancies by election as the legislature may direct.”).

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30
privileges, extend only to “persons and things within its own
territory according to its own sovereign will and public
policy.” Joseph Story, Commentaries on the Conflict of Laws,
Foreign and Domestic § 22 (Boston, Hilliard, Gray, and
Company 1834). This understanding was viewed as “inherent
in nature, for it was derived from an underlying assumption
about the essential purpose of government, protection, which
in turn was derived from ideas about the equal freedom of
human beings in the state of nature.” Phillip Hamburger,
Beyond Protection, 109 Colum. L. Rev. 1823, 1840 (2009).
Thus, “an individual ha[s] a right to the protection of
government and its laws only by virtue of his allegiance.” Id.
at 1838.
Eighteenth-century thinkers recognized this principle as
following the nature of things, making protectionism “a truism
of the common law.” Id. “[F]ounded in reason and the nature
of government,” “[a]llegiance is the tie, or ligamen, which
binds the subject to the king, in return for that protection which
the king affords the subject.” 1 Blackstone, Commentaries
*366. But an alien falls into an “obvious division,” id., because
he owes only a “[l]ocal allegiance” to the Sovereign, id. at
*370, a temporary affinity “for so long time as he continues
within the king’s dominion and protection . . . and it ceases the
instant such stranger transfers himself from this kingdom to
another,” id. Put differently, “when an alien that is in amity
cometh into England, . . . he is within the King’s protection;
therefore so long as he is here, he oweth unto the King a local
obedience or ligeance, for that the one (as it hath been said)
draweth the other.” Calvin’s Case (1608) 77 Eng. Rep. 377,

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31
383; 7 Co. Rep. 1 a, 5 b.32 Thus, throughout the English history,
“no Lawyer hath ever yet denied” that “Protection and
Allegiance are reciprocal obligations,” for “[t]hey are founded
in Reason, Equity, and good Policy.” Sir Michael Foster,
Discourse on High Treason, in A Report of Some Proceedings
on the Commission of Oyer and Terminer 183, 188 (Oxford,
Clarendon Press 1762) (1714).
The Founders followed this understanding of the
reciprocal relationship between allegiance and protection.
Though they sometimes split over whether the principle of
protection entitled aliens to the benefit of all constitutional
rights, as contested during the debates over the Alien and
Sedition Acts,33 all acknowledged that some relationship
between the Sovereign and the alien was essential. Leading the
Democratic-Republicans, James Madison contended “[a]liens
are not more parties to the laws than they are parties to the
Constitution; yet it will not be disputed that, as they owe, on
the one hand, a temporary obedience, they are entitled, in
return, to their protection and advantage.” 4 The Debates in the
Several State Conventions on the Adoption of the Federal
Constitution 556 (Jonathan Elliot ed., Philadelphia, J.B.
32 See also 77 Eng. Rep. at 392; 7 Co. Rep. at 13 a (citing
Aristotle to explain that allegiance to the sovereign was
compelled by the natural law).
33 See Gerald L. Neuman, Whose Constitution?, 100
Yale L.J. 909, 927–38 (1991); J. Andrew Kent, A Textual and
Historical Case Against A Global Constitution, 95 Geo. L.J.
463, 531 (2007) (explaining “the poles of debate in the 1790s”
with “Federalists denying that any aliens had constitutional
rights” and “Republicans arguing that friendly aliens resident
in the United States had constitutional rights”).

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32
Lippincott Company 2d ed. 1836). And even the
Federalists—who reasoned that because aliens were not part of
the people for whom the Constitution was created and thus
have no rights thereunder—still recognized the protection
principle. See id. at 534 (explaining that the Alien and Sedition
Acts “respect[] a description of persons whose rights were not
particularly contemplated in the Constitution of the United
States,” so they “are entitled only to a temporary protection
while they yield a temporary allegiance—a protection which
ought to be withdrawn whenever they become ‘dangerous to
the public safety’”). Thus, despite disagreement about what
laws aliens were entitled to the protection of, the principle of
protection was universally accepted. And early American law
adhered to this understanding.34
This history, and the tradition it follows, reveals three
insights. First, the protection principle confers only a
temporary license to aliens—a discretionary privilege to be
within the land—so it cannot guarantee a right to indefinitely
remain. See Hamburger, supra, at 1844–45 (explaining that
allegiance and protection are “reciprocal Ties, each equally
depending upon the other, and liable to be dissolved by the
other’s being refused or withdrawn” (quoting N.J. Const. of
34 See, e.g., 33 Annals of Cong. 1042 (1819) (explaining
that men who “were not our citizens” and were outside “the
territorial limits of the United States” “owed us no allegiance,
and were entitled to no protection”); Story, supra, at § 7
(“[T]he laws of one country . . . can bind only its own subjects,
and others, who are within its jurisdictional limits; and the
latter only while they remain there.”); Eisentrager, 339 U.S. at
769 (“Citizenship as a head of jurisdiction and a ground of
protection was old when Paul invoked it in his appeal to
Caesar.”).

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33
1776 pmbl.; N.Y. Const. of 1777 pmbl.)). That is because
“[n]atural allegiance is therefore perpetual, and local
temporary only.” 1 Blackstone, Commentaries *370.
Second, the relationship between the alien and the
Sovereign can be terminated by “the express will of the
sovereign power to order him away.” Clarke v. Morey, 10
Johns. 69, 72 (N.Y. 1813); see Harisiades, 342 U.S. at 587
(“The Government’s power to terminate its hospitality has
been asserted and sustained by this Court since the question
first arose.”); Sir Alexander Cockburn, Nationality Or the Law
Relating to Subjects and Aliens 138–39 (London, William
Ridgway 1869) (“[B]y the law of many countries a power is
vested in the Government, either for cause, or at discretion, to
direct the removal of the alien.”). Although “a vested right is
to be taken from no individual without a solemn trial, . . . the
right of remaining in our country is vested in no alien; he enters
and remains by the courtesy of the sovereign power, and that
courtesy may at pleasure be withdrawn.” The Address of the
Minority in the Virginia Legislature to the People of that State;
containing a Vindication of the Constitutionality of the Alien
and Sedition Laws 9–10 (1799).35 So “even as to alien friends,
one who is ordered away or is present without permission
would be outside the public protection.” Ilan Wurman,
Jurisdiction and Citizenship 44 (May 22, 2025) (Minnesota
Legal Studies Research Paper No. 25-27) (on file with Social
Science Research Network).
35 An address attributed to General Henry Lee and John
Marshall before his time as Chief Justice. See Neuman, supra,
at 930.

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34
Third, a temporary license does not confer aliens access
to all rights enjoyed by citizens. See Hamburger, supra, at
1976–77 (explaining that aliens who enter lawfully “have a
right to the same protection as citizens, even if not the same
substantive rights as citizens”). “[T]he sovereign is supposed
to allow [an alien] access only upon this tacit condition, that he
be subject to the laws” limited to “the general laws made to
maintain good order, and which have no relation to the title of
citizen or of subject of the state.” Emmerich de Vattel, The
Laws of Nations § 101, at 172 (Joseph Chitty ed., Philadelphia,
R. & J. W. Johnson 1852) (1758). So “submitting to the laws
of any country, living quietly, and enjoying privileges and
protection under them, makes not a man a member of that
society.” John Locke, The Second Treatise of Civil
Government § 122, at 61 (J.W. Gough ed., Basil Blackwell
1948) (1690). Which explains why aliens had “circumscribed”
rights36 such as a prohibition on political engagement37 and
property ownership.38 The same thinking animated the
36 1 Blackstone, Commentaries *371.
37 Cockburn, supra, at 138 (explaining the protection
principle does not extend to “the exercise of political rights”
which “is reserved to such as are members of the community,
to the exclusion of those, who, though residing within its
territory belong to another State which may have different or
perhaps hostile interests to promote”).
38 Id. at 139–40 (tracing the prohibition on aliens
owning property back to the days of King Alfred); 1
Blackstone, Commentaries *372 (explaining an alien “may
purchase lands,” “but not for his own use” because “[i]f an
alien could acquire a permanent property in lands, he must own
an allegiance, equally permanent with that property, to the king

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35
Federalists’ position that aliens cannot claim the Constitution’s
protection because, although the protection principle applies,
the alien is not party to the Constitution. See Alexander
Addison, On the Alien Act (Washington, John Colerick 1799)
(1798), reprinted in Univ. of Mich. Libr. Digit. Collections 11,
https://perma.cc/4GLT-2GWU (last visited Apr. 30, 2025).39
All told, the protection principle establishes that the
Sovereign does not owe all aliens within its borders the same
obligation it does its citizens. Thus, Congress may make rules
for aliens that would be unacceptable if applied to citizens. See
Fiallo v. Bell, 430 U.S. 787, 792 (1977).40
of England, which would probably be inconsistent with that
which he owes to his own natural liege lord”).
39 This understanding accords with the Court’s
recognition that “the alien in several respects stands on equal
footing with citizens, but in others has never been conceded
legal parity with the citizen.” Harisiades, 342 U.S. at 586. For
example, the alien is given the same “measure of economic
opportunity,” ability to “invoke the writ of habeas corpus to
protect his personal liberty,” “protections of the Fifth and Sixth
Amendments” in criminal proceedings, and right to “just
compensation” for a taking that citizens receive. Id. at 586 n.9.
But unlike citizens, an alien “cannot stand for election to many
public offices,” has no right to vote, does not receive an
unlimited “right to travel temporarily outside the United
States,” and must “prove ‘his right to enter or remain.’” Id. at
586 n.10 (quoting 8 U.S.C. § 155(a) (repealed 1952)).
40 Arguments to the contrary violate not only precedent
but the political branches’ plenary power over immigration.
The Court has upheld removals based on determinations that
an alien’s speech or association demonstrated undesirability

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36
Under the best understanding of the First Amendment,
Qatanani is not part of “the people” whom the First
Amendment restricts government action against, and he cannot
claim its protection. At the time of the BIA’s decision,
sufficient to terminate the privilege of presence. See
Harisiades, 342 U.S. at 581–83, 591–92 (rejecting the
argument that the First Amendment barred removal of three
based on their associations with the Communist Party);
Kleindienst v. Mandel, 408 U.S. 753, 756–69 (1972)
(upholding an alien’s exclusion based on his speech the
Sovereign deemed undesirable, regardless of citizens’ First
Amendment rights to hear that alien’s speech); Reno, 525 U.S.
at 491–92 (“When an alien’s continuing presence in this
country is in violation of the immigration laws, the
Government does not offend the Constitution by deporting him
for the additional reason that it believes him to be a member of
an organization that supports terrorist activity.”). And proper
respect for the political branches’ plenary power over
immigration has repeatedly moved the courts against second
guessing their judgment. See, e.g., Reno, 525 U.S. at 490–92
(declining to enjoin deportation proceedings based on the
aliens’ claim that they were selectively targeted for deportation
because of their affiliations); Galvan v. Press, 347 U.S. 522,
523, 530–32 (1954) (upholding constitutionality of deporting
an alien based on his associations with the Communist Party
despite First Amendment concerns); Kleindienst, 408 U.S. at
769–70 (courts may neither “look behind” the “facially
legitimate and bona fide” denial of immigration waiver, nor
weigh it against asserted “First Amendment interests”); United
States v. Aguilar, 883 F.2d 662, 695 (9th Cir. 1989) (rejecting
an alien’s claims under the First Amendment in light of “the
government’s overriding interest in policing its borders”).

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Qatanani was not subject to the protection principle. He
entered the country with permission via a non-immigrant H1-B
visa to work for a limited time. During those three years,
Qatanani was within the country with the express permission
of the Sovereign and owed temporary allegiance in exchange
for a temporary license. But once the visa expired, so did the
protection principle. If not then, surely when USCIS denied his
initial status adjustment application or when DHS initiated
removal proceedings against him. No matter what date, the
Executive had removed authorization for Qatanani to remain
many years before he publicly called for a new intifada.
C.
Even if Qatanani were afforded First Amendment
protection as an unauthorized alien (or even an LPR), denial
(or recission) of an immigration privilege, to which he has no
right or entitlement, is not a punitive or adverse action that
could trigger First Amendment restrictions on government
action. Through the Constitution, “[t]he people of the United
States . . . limit[ed] the power of their government over
themselves; but la[id] no restraint on the power of their
government over aliens.” Addison, supra, at 11. So until an
alien “become[s] [a] citizen[], they are in the power of the
ordinary legislature,” which “may receive them, and admit
them to become citizens; or may reject them, or remove them,
before they become citizens.” Id. Thus, when aliens “come
here, they know, that they come at the discretion of the
ordinary legislature . . . and have no reason to complain, if this
legislature remove them, before they become citizens.” Id. Put
simply, an alien within our Nation as a matter of administrative
grace has no right to remain.

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That is why “[d]eportation is not a criminal proceeding
and has never been held to be punishment.” Carlson v. Landon,
342 U.S. 524, 537 (1952). Rather, “[a] deportation proceeding
is a purely civil action to determine eligibility to remain in this
country, not to punish an unlawful entry, though entering or
remaining unlawfully in this country is itself a crime.” Immigr.
& Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032,
1038 (1984). So “[w]hile the consequences of deportation may
assuredly be grave, they are imposed not as a punishment” but
“to bring to an end an ongoing violation of United States law.”
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
491 (1999).
The same is true for Executive determinations denying
status adjustments because the legislature has not created a
statutory entitlement to an adjustment of status under
section 1255. To the contrary, Congress explicitly stated that
the privilege of a status adjustment is purely discretionary and
should be determined by the Executive. § 1255(a); Elkins, 435
U.S. at 667; Ameeriar, 438 F.2d at 1030. Immigration benefits
differ from other benefits the Executive offers. True, neither
Congress nor the Executive may condition the receipt of a
government benefit in a manner that infringes constitutional
rights. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,
570 U.S. 205, 213–14 (2013); Rumsfeld v. F. for Acad. &
Institutional Rts., Inc., 547 U.S. 47, 59 (2006). This principle
has been applied to benefits such as “tax exemptions,”
“unemployment benefits,” “welfare payments,” and “denials
of public employment.” Perry v. Sindermann, 408 U.S. 593,
597 (1972). But legal status to enter or remain in our Nation is
not an administrative benefit held out to all aliens who meet a
strict set of qualifications. No. It is the highest privilege the
political branches may grant to those individuals deemed, in

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their discretion, deserving of the opportunity to work towards
the common good of our republic.
By design then, immigration determinations, without
more, cannot serve as adverse actions against an alien, making
appeals to First Amendment limitations inapposite.
* * *
Mohammad Qatanani’s case carries a simple caution:
courts cannot confuse the political privilege that permits an
alien’s presence with an unrestricted right to indefinitely
remain. That understanding spans from the earliest days of the
republic to the laws Congress created to control immigration
today. The uncertainty and instability that comes from residing
in a foreign land is neither new nor unique to America. It is
simply the cost immigrants in all places and all times have
counted worth spending in deciding to leave their home
country to seek a better life in another. There is nothing sinister
in acknowledging that truth, nor is it any barrier to the promise
that “[t]he bosom of America is open to receive not only the
opulent & respectable Stranger, but the oppressed &
persecuted of all Nations & Religions; whom we shall
wellcome to a participation of all our rights & previleges if by
decency & propriety of conduct they appear to merit the
enjoyment.” Letter from George Washington to Joshua
Holmes (Dec. 2, 1783).
Seeing no constitutional claim or legal question that
warrants granting the petition, and mindful we lack jurisdiction
to review the Executive’s discretionary decision not to grant
Qatanani a status adjustment, I would deny the petition and so
respectfully dissent.

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