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Click here for the full text of this decision FACTS: Raja Akhtar and Mohammad Salman, citizens of Pakistan, are paroled arriving aliens in removal proceedings. Under a regulation promulgated in 1997, such aliens cannot apply for adjustment of status to become immigrants. Because they make the same legal challenge to the regulation, the court consolidates their appeals. One of the aliens appeals the denial of his application for cancellation of removal. The other alien appeals an immigration judge’s denial of his motion for continuance during removal proceedings. HOLDING: Affirmed. Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), provides the two-step process for evaluating the validity of regulations. Step one asks whether Congress has spoken to the precise question at issue; if so, the inquiry ends and Congress’s wishes control. If the statute is silent or ambiguous, step two asks whether the agency’s interpretation is reasonable. The attorney general made a substantive change to the adjustment of status regulations, 8 C.F.R. �245.1(c)(8), rendering seven categories of aliens “ineligible” to apply for adjustment of status under �1255(a), including “[a]ny arriving alien who is in removal proceedings. . . .” This regulation dovetails with the new regulation governing adjustment procedure, promulgated at the same time. The court agrees with Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005), that �245.1(c)(8) passes Chevron review. Congress did not speak precisely to the issue because it gave respondent unreviewable discretion to adjudicate individual applications. There is no reason why an agency given such discretion cannot exercise it by rule. The decision in Lopez v. Davis, 531 U.S. 230 (2001), concurs, and the court finds the the attempt made in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), to distinguish Lopez unconvincing for the reasons explained by Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005). Furthermore, as explained in Mouelle, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), does not create some artificial distinction between eligibility and case-by-case discretion such that the latter cannot de facto affect, or even redefine, the former. It merely held that the Board of Immigration Appeals’ interpretation of the statute in that case failed because Congress did not intend the heightened mandatory-withholding showing to apply to discretionary asylum. Turning to step two, the court finds that �245.1(c)(8) is a reasonable method of exercising that discretion to facilitate removal. The court concludes that �245.1(c)(8) is valid under Chevron. Respondent has discretion to adjudicate applications for adjustment of status, and he has done so by a reasonable rule. OPINION: Higginbotham, J.; Higginbotham, Davis and Stewart, J.J.

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