Sabri I. Samirah v. Erich. Holder, Jr., Attorney General

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ARGUED SEPTEMBER 8, 2010

Before POSNER, MANION, and HAMILTON, Circuit Judges.

In the more than seven years that have elapsed since our first decision in this seemingly interminable immigration case, Samirah v. O’Connell, 335 F.3d 545 (7th Cir. 2003), the issues presented to us have changed, requiring us to conduct a fresh analysis. The government insists that our first decision, reversing the grant of a preliminary injunction to the plaintiff, is dispositive of the present appeal. That isn’t true. The issues are different. The central issue in the first appeal-the reviewability of revocation of “advance parole”-has dropped out, and the relief sought in the present appeal (mandamus) is different from that sought unsuccessfully in the prior one (habeas corpus). We’ll see that an immigration regulation entitled the plaintiff, upon the revocation of his advance parole, to the restoration of his pre-parole status, that of an applicant to adjust his status from nonlawful resident to lawful resident. But to pursue his application, he had, by law, to be physically present in the United States. The government, in violation of the regulation, refused to let him return to the United States. He is entitled to a writ of mandamus directing the Attorney General to enable him to return. That is the case in a nutshell, but the complexity of immigration law will require an unavoidably tedious elaboration of our analysis. The issues presented by this appeal have not been briefed and argued as carefully as we would like, perhaps because of that complexity; but we think we can see our way clear to a sound result.

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