source: Caselaw Access Project

author: TATEL, Circuit Judge:

license: Public Domain

text:
    SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, Appellee v. Carl FERRER, Appellant
    No. 16-5232 Consolidated with 16-5274
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 3, 2017
    Decided May 16, 2017

      Robert Corn-Revere argued the cause for appellant. With him on the briefs were Ronald G. London, Robert D. Luskin, Stephen B. Kinnaird, Jamie S. Gardner, Steven R. Ross, and Stanley M. Brand, Washington, DC.
    Jessica Ring Amunson and Joshua M. Parker, Washington, DC, were on the brief for amici curiae DKT Liberty Project, et al. in support of appellant.
    Karen A. Chesley, New York, NY, and David Boies were on the brief for amici curiae Legal Momentum, et al. in support of appellee.
    Emma J. Llansó was on the brief for amici curiae Center for Democracy & Technology and Electronic Frontier Foundation in support of appellant.
    Thomas E. Caballero, Assistant Counsel, Office of Senate Legal Counsel, argued the cause for appellee. With him on the brief were Patricia Mack Bryan, Senate Legal Counsel, Morgan J. Frankel, Deputy Senate Legal Counsel, and Grant R. Vinik, Assistant Senate Legal Counsel.
    Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges.
   TATEL, Circuit Judge:

Carl Ferrer, Chief Executive Officer of the online advertising website Back-page.com, appeals two district court orders directing him to produce various documents in response to a subpoena issued by the Senate Permanent Subcommittee on Investigations. During the pendency of this appeal, however, Ferrer turned over some of the documents, and the Subcommittee completed its investigation and issued its final report. Given this, and given that the Subcommittee no longer seeks to enforce the subpoena, it argues that the case has become moot. Ferrer responds that the case remains live because, according to him, this court can order the Subcommittee to return, destroy, or refrain from publishing the produced documents. We disagree. Because the relief Ferrer seeks is barred by the separation of powers, including the Speech of Debate Clause, the case is now moot.

I.

In the first half of 2015, the Senate Permanent Subcommittee on Investigations began examining “businesses that directly or indirectly facilitate criminal sex trafficking conduct, including trafficking in minors.” S. Rep. No. 114-214, at 6 (2016). The Subcommittee suspected that online advertisers were playing a central role in sex trafficking by “providing ... easily accessible forum[s] that match[ ] buyers of sex with anonymous traffickers selling minors and adults.” Id. at 3. In particular, the Subcommittee focused on Back-page.com, a large, classified-advertising website that allows third-party users to post their own ads. At that time, Backpage featured, alongside run-of-the-mill categories like real estate, jobs, and automobiles, a section dedicated to “adult” services, which contained subcategories ranging from “escorts” and “body rubs” to “adult jobs.” Subpoena Duces Tecum of Oct. 1, 2015. Ads in those sections “typically consisted] of a headline, a photo or photos, video, and a brief description of the services being offered.” S. Rep. No. 114-214, at 4.

In April 2015, the Subcommittee asked Backpage for an explanation of its “moder: ation” procedures, i.a, standards and policies Backpage says it uses to “screen, block and remove [user-supplied] ads ... to guard against any form of human trafficking or child exploitation.” Letter from Steven R. Ross, Counsel to Backpage.com to Sens. Portman and McCaskill (Oct. 23, 2015); see S. Rep. No. 114-214, at 7. Back-page sent its General Counsel to be interviewed by the Subcommittee, but when the Subcommittee found her answers lacking in several respects, it sent follow-up questions and requests for information, all of which went unanswered.

On July 7, 2015, the Subcommittee issued its first subpoena duces tecum asking Backpage to produce a variety of documents. Responding through counsel, the company argued that the subpoena was overbroad and a per se violation of the First Amendment. Although the Subcommittee offered to narrow the subpoena, Backpage continued insisting that the subpoena violated the First Amendment.

Seeking to end the stalemate, the Subcommittee withdrew the initial subpoena on October 1 and then issued a new one to Backpage’s CEO, Appellant Carl Ferrer. The new subpoena sought eight categories of documents, giving Ferrer until October 23 to respond or “assert any claim of privilege or other right to withhold” documents in a privilege log. See Subpoena Duces Tecum of Oct. 1, 2015.

Although Ferrer supplied a handful of documents, he refused to search for any other responsive material. He gave three reasons for doing so: the subpoena exceeded the Subcommittee’s investigative authority, infringed the First Amendment rights of Backpage and its users, and sought “[im]pertinent” information. Letter from Steven R. Ross to Sens. Portman and McCaskill (Oct. 23, 2015).

The Subcommittee rejected Ferrer’s objections, but extended his deadline to comply until November 12. Ferrer produced several more documents, repeated his three objections, and added that he was withholding “[cjertain documents ... - on the basis of attorney-client and/or attorney work product privilege.” Letter from Steven R. Ross to Sens. Portman and McCas-kill (Nov. 13, 2015).

Confronted with Ferrer’s resistance, the Subcommittee sought authority from the Senate to bring a civil subpoena-enforcement action under 28 U.S.C. § 1365(a), which gives the United States District Court for the District of Columbia original jurisdiction “over any civil action brought by the Senate or any authorized ... subcommittee ... to enforce ... any subp[o]ena or order issued by the Senate or ... subcommittee of the Senate to ... any natural person.” With the Senate’s unanimous approval, the Subcommittee filed an enforcement application in district court. Ferrer responded with the same three objections raised in his October 23 letter—that the subpoena violated the First Amendment, pursued impertinent materials, and exceeded the scope of the Subcommittee’s investigative power.

The District Court granted the Subcommittee’s application on August 5, 2016, ordering Ferrer to comply with the subpoena within ten days. Ferrer immediately noticed an appeal and sought a stay in the district court, our court, and the Supreme Court, all of which denied his request.

On September 13, the day the Supreme Court denied a stay, Ferrer produced some 110,000 pages of documents, moved the district court for an extension to complete production, and, for the first time in that court, invoked attorney-client and work-product privileges as to a subset of the yet-to-be produced documents. Although the district court granted a short extension, it rejected as untimely Ferrer’s assertion of privilege. Ferrer again appealed, and this court denied a stay pending appeal except with respect to the documents Ferrer claims are privileged.

Ferrer turned over all concededly non-privileged documents in late November. Some two months later, on January 10, 2017, the Subcommittee held its last hearing, issued a final report on sex trafficking (including a lengthy appendix featuring certain documents Backpage produced), and closed the investigation. Two weeks later, the Subcommittee moved to dismiss this appeal, arguing that these subsequent events had mooted the case and deprived this court of jurisdiction.

II.

Article III of the U.S. Constitution requires a controversy to remain live “at all stages of review.” Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013). “For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed” as moot. Church of Scientology of California v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)).

The Subcommittee argues that the case has become moot because the Subcommittee has “held its hearing, issued its final report, ... completed its investigation,” and “no longer seek[s] to enforce any part of the subpoena.” Subcommittee Mot. to Dismiss at 3, 12. Ferrer concedes that no controversy remains as to the privileged documents he withheld, which the Subcommittee has never received and no longer wants. Subcommittee Mot. at 12; Oral Arg. Rec. 2:45-3:05. Nonetheless, he insists, the dispute remains live because the court may still provide at least some “effectual relief’ by ordering the Subcommittee to return, destroy, or refrain from further publishing and distributing the documents Ferrer produced. He also argues that even if the case has become moot, the dispute satisfies the “capable of repetition yet evading review” exception to mootness.

A.

In support of his argument that this case remains live because our court can order the Subcommittee to return or destroy the documents, Ferrer relies principally on the Supreme Court’s decision in Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447. In that case, the Internal Revenue Service issued an administrative summons to a state-court clerk directing him to produce tape recordings of conversations between officials of the Church of Scientology and their attorneys. Id. at 10, 113 S.Ct. 447. When the IRS filed a petition to enforce the summons in district court, the Church intervened to oppose production on the grounds that the tapes were privileged. Id. at 11, 113 S.Ct. 447. The district court ordered production of the tapes and the Church appealed, but before the appeal could be decided, the state-court clerk delivered the tapes to the IRS, at which point the appellate court dismissed the case as moot. Id. at 12, 113 S.Ct. 447. The Supreme Court reversed, explaining that the controversy remained live because “a court ... h[as] [the] power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession.” Id. at 13, 113 S.Ct. 447.

According to Ferrer, the same “destroy or return” remedy is available here. We might agree were his documents held in the grips of a federal agency. But as the Subcommittee points out, because it is Congress that holds Ferrer’s documents, he must contend with the cloak of protection afforded by the Constitution’s separation of powers, including the Speech or Debate Clause, which provides that, “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” U.S. Const, art. I, § 6, cl. 1.

Although the Speech or Debate Clause chiefly functions to immunize Members of Congress from civil or criminal liability arising from “actions [falling] within the ‘legislative sphere,’ ” Doe v. McMillan, 412 U.S. 306, 312, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), its protections extend far more broadly. In Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), our court held that the Clause affords Congress a “privilege to use materials in its possession without judicial interference,” even where unlawful acts facilitated their acquisition. Id. at 416. There, a paralegal working for a law firm representing Brown & Williamson stole internal tobacco-related documents and arranged for their delivery to the House Subcommittee on Health and the Environment. Id. at 411-12, 422. Suing the paralegal for breach of contract in state court, the law firm issued subpoenas to two Congressmen seeking production of all documents in the Subcommittee’s possession. Id. at 412. The Members removed the case to federal district court and filed a motion to quash, arguing that the Speech or Debate Clause barred the subpoena’s enforcement. Id. The district court granted the motion, and our court affirmed, holding that even though the documents had been stolen, “[a] party is no more entitled to compel congressional testimony—or production of documents—than it is to sue congressmen.” Id. at 421. “[Ejven though material comes to a legislative committee by means that are unlawful or otherwise subject to judicial inquiry,” we explained, “the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity.” Id. at 417 (quoting McSurely v. McClellan, 553 F.2d 1277, 1296-97 (D.C. Cir. 1976) (en banc) (per curiam)).

In reaching its decision, Brown & Williamson relied in part on Hearst v. Black, 87 F.2d 68 (D.C. Cir. 1936), in which our court held that the separation of powers barred it from enjoining a Senate committee from “keeping[,] ... making any use off,] • • • or disclosing” the contents of telegraphs a Senate committee had unlawfully obtained from the Washington offices of publisher William Randolph Hearst. Id. at 71 (emphasis added). Wé explained then—and it is just as true now—that “[w]e know of no case in which it has been held that a court of equity has authority to do any of these things.” Id. To circumscribe the committee’s use of material in its physical possession would, we emphasized, “destroy[ ]” the independence of the Legislature and “invade[]” the constitutional separation of powers. Id. at 72; accord McMillan, 412 U.S. 306, 338 n.11, 93 S.Ct. 2018, 36 L.Ed.2d 912 (Blackmun, J., concurring in part and dissenting in part) (‘We have no more authority to prevent Congress, or a committee ... [,] from publishing a document than to prevent them from publishing the Congressional Record.”) (quoting Methodist Federation for Social Action v. Eastland, 141 F.Supp. 729, 731 (D.D.C. 1956) (three-judge court)); Sanders v. McClellan, 463 F.2d 894, 902 (D.C. Cir. 1972) (“The judiciary has the • duty of not lightly interfering with Congress’ exercise of its legitimate powers.”) (internal quotation marks omitted).

Brown & Williamson and Hearst thus make clear that the separation of powers, including the Speech or Debate Clause, bars this court from ordering a congressional committee to return, destroy, or refrain from publishing the subpoenaed documents. Because we can provide Ferrer with no “effectual relief whatever,” Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447, the case has become moot.

Resisting this conclusion, Ferrer first argues that because the Subcommittee “enlist[ed] the jurisdiction of the judiciary” under 28 U.S.C. § 1365, “it subjected] itself to that jurisdiction,” meaning it “cannot ... assert [that] separation of powers precludes an adverse judicial resolution.” Appellant’s Opp. to Appellee’s Mot. to Dismiss (“Opp. Br.”) at 10. We disagree. Nothing in Section 1365—which gives the district court “original jurisdiction ... over any civil action brought by the Senate or any authorized ... subcommittee ... to enforce ... any subp[o]ena”—provides that the Senate forfeits its constitutional protections by seeking judicial enforcement of a subpoena. Confirming this, the Senate Report accompanying the statute’s enactment states that “[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers.” S. Rep. No. 95-170, at 94 (1977) (report accompanying Pub. L. No. 95-521, 92 Stat. 1824); see Mohamad v. Palestinian Authority, 566 U.S. 449, 459, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012) (“[Although we need not rely on legislative history given the text’s clarity, we note that the history only supports our interpretation.... ”).

Insofar as Ferrer contends that, apart from Section 1365’s text, the Subcommittee necessarily accepted an implicit restriction on the Speech or Debate Clause by seeking to enlist the judiciary’s assistance in enforcing its subpoena, his argument lacks merit. In ordering compliance with the Subcommittee’s subpoena, the district court merely aided the Senate in effectuating its inherent subpoena power. The Subcommittee did not thereby necessarily invite the courts’ interference with constitutionally protected legislative activity. Cf. United States v. Helstoski, 442 U.S. 477, 490-91, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979) (waiver of congressman’s Speech or Debate Clause immunity, assuming such waiver is possible, would require “[a]n explicit and unequivocal renunciation”).

Citing two Supreme Court Speech or Debate Clause cases—Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), and McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912— Ferrer next argues that we may prospectively enjoin the Subcommittee from further disseminating Backpage’s documents “beyond the legitimate legislative needs of Congress.” Opp. Br. 11. But Hutchinson held only that the Speech or Debate Clause could not shield a Senator from retrospective liability for defamatory statements made in non-legislative publications. Hutchinson, 443 U.S. at 132-33, 99 S.Ct. 2675. And McMillan concluded that the Clause barred an award of damages and injunctive relief arising from a congressional committee’s decision to publish materials whose distribution was “otherwise actionable under local law,” at least “insofar as [the complaint] sought relief from ... Committee members” and their legislative aides. McMillan, 412 U.S. at 312, 317, 93 S.Ct. 2018. Neither case held that courts may prospectively limit a congressional subcommittee’s lawful use of documents in the course of a legitimate legisla-. tive activity.

To be clear, we take no position on whether courts are powerless to enjoin individual members—or the committees of which they are a part—from disseminating investigative materials whose contents have no relationship to legislative functions or whose distribution would arguably violate the law. See Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) (investigative activities “must be related to, and in furtherance of, a legitimate task of the Congress”). That issue is not before us. The Subcommittee obtained the documents in service of legitimate legislative purposes and Ferrer makes no claim that publishing them is “otherwise actionable” under any law.

B.

This brings us to Ferrer’s alternative claim—that even if the case has become moot, we may nonetheless entertain the appeal under the exception to mootness for issues that are “capable of repetítion, yet evading review.” Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). This exception applies where “(1) the challenged action [is] in its duration too short to be fully litigated pri- or to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Id. (alterations in original). We have no need to address the first requirement, for Ferrer clearly fails the second.

A controversy “is capable of repetition” only if “the same parties will engage in litigation over the same issues in the future.” Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 633 (D.C. Cir. 2002). “A ‘theoretical possibility,’ ... is not sufficient to qualify as ‘capable of repetition^;] .... [t]here must instead be a ‘reasonable expectation’ or ‘demonstrated probability’ that the action will recur.” Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 951 (D.C. Cir. 2005) (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam)).

According to Ferrer, “The threat that Backpage.com could be compelled to produce documents intruding on its editorial judgment in violation of the First Amendment is easily capable of repetition.” Opp. Br. 15. For that to happen, however, Ferrer would have to again have an enforcement action brought against him for failing to comply with a similar subpoena, seeking similar documents, and raising similar issues. Although there is a “theoretical possibility” that this chain of events might occur, Ferrer gives us no basis for believing that there is a “reasonable expectation” or “demonstrated probability” that it will. Murphy, 455 U.S. at 482, 102 S.Ct. 1181; see Pharmachemie, 276 F.3d at 633-34 (where “several contingencies would have to occur for the same issues to arise again,” party failed to “demonstrate[ ] a reasonable likelihood” of repetition).

Ferrer emphasizes that two members of the Subcommittee have shown a continued interest in combating sex trafficking on Backpage.com and on other forums. See Jan. 10, 2017 Hearing Before Senate Permanent Subcommittee on Investigations, available at https://goo.gl/ot8PiM. Ranking Minority Member McCaskill stated that she would “do everything in [her] power to protect young women from being exploited ... on Backpage.com or anywhere else.” Id. 35:35-36:05. And Chairman Portman reiterated that he was “committed to continuing this effort, not just this one specific goal of uncovering information that was not previously known about Backpage ... but a broader effort ,... looking at the laws differently.” Id. 2:23:45-2:24:15. Such statements, however, hardly establish a “reasonable expectation” that the Subcommittee, having completed its work and issued its final report, will nonetheless reopen its investigation and again issue a subpoena to Ferrer.

III.

Although Ferrer’s challenge to this subpoena-enforcement order is moot, we emphasize that our decision does not leave future subpoena recipients without a remedy. As counsel for the Subcommittee pointed out at oral argument, “if you wish to appeal an order ... enforcing a Senate subpoena you stand on your privilege, you go into contempt.” Oral Arg. Rec. 17:30-45. For example, in In re Application of U.S. Senate Permanent Subcommittee on Investigations (Cammisano), 655 F.2d 1232 (D.C. Cir. 1981), a district court enforced a Senate subcommittee’s subpoena and, when the subpoena’s recipient refused to comply, entered a separate order of civil contempt. Id. at 1234-35. As a result, both the district court and this court addressed his objections on the merits. Although the subpoena recipient lost, through his disobedience he preserved his right to appellate review of his objections. By contrast, Ferrer, by responding to the subpoena, has triggered Congress’s constitutional protections and thus deprived the courts of authority “to grant any effectual relief whatever.” Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447.

Finally, Ferrer asks that we vacate the district court’s judgments if we dismiss the case as moot. “Courts usually” exercise their equitable discretion to “vacate a judgment ‘when mootness results from unilateral action of the party who prevailed below’ or from circumstances beyond the control of the parties.” Sands v. NLRB, 825 F.3d 778, 785 (D.C. Cir. 2016) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)). That is exactly what happened here. With respect to the documents Ferrer produced over his First Amendment objection, any dispute was mooted by operation of the Speech or Debate Clause. And with respect to the documents Ferrer withheld pursuant to common law privileges, the Subcommittee mooted the case by issuing its final report and disclaiming any interest in further enforcing the subpoena. Given this, and given that the Subcommittee itself does not oppose vacatur, we vacate the district court’s judgments and dismiss the case as moot. See Sands, 825 F.3d at 786 (finding “opposing side’s silence” in the face of a party’s request for vacatur to “significant[ly]” weigh in favor of granting the request).

So ordered.


author: KAVANAUGH, Circuit Judge:

text:
    John A. TAYLOR, Petitioner v. Michael P. HUERTA, as Administrator, Federal Aviation Administration, Respondent
    No. 15-1495 Consolidated with 16-1008, 16-1011
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 14, 2017
    Decided May 19, 2017

      John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.
    R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.
    Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.
    Before: KAVANAUGH and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   KAVANAUGH, Circuit Judge:

Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation’s air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as “model aircraft,” and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.

To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.

Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor’s petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order’s issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.

I

Congress has directed the FAA to “promote safe flight of civil aircraft” and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required “aircraft” to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA’s Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, compliance with the Circular by operators of model aircraft was voluntary. See J.A. 1.

As unmanned aircraft technology has advanced, small unmanned aircraft have become increasingly popular. In response, the FAA has taken a more active regulatory role. In 2007, the FAA promulgated a notice announcing a new regulatory approach to unmanned aircraft. See Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). In the notice, the FAA distinguished between commercial and recreational unmanned aircraft. Under the new regulatory approach, commercial unmanned aircraft are subject to mandatory FAA regulations. Those regulations require operators to report the aircraft’s intended use, time or number of flights, and area of operation, among other things. Id. at 6690. By contrast, this notice did not alter the longstanding voluntary regulatory approach for model aircraft. Id.

In 2012, Congress weighed in on the debate over regulation of unmanned aircraft. Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note). The Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336 of the Act, called the “Special Rule for Model Aircraft,” provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defines “model aircraft” as “an unmanned aircraft that is—(1) capa-' ble of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” Id. § 336(c).

Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The Registration Rule requires model aircraft owners to provide their names; physical, mailing, and email addresses; and any other information the FAA chooses to require. Id. at 78,595-96. The Registration Rule also creates an online platform for registration, establishes a $5 per-individual registration fee, sets compliance deadlines, and requires all small unmanned aircraft to display a unique identifier number issued by the FAA. Id. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,630.

Also in 2015, the FAA withdrew Advisory Circular 91-57 and replaced it with Advisory Circular 91-57A. See J.A. 3-5. Among other things, the revised Circular provided that model aircraft could not fly within the Flight Restricted Zone covering Washington, D.C., and the surrounding areas without specific authorization. See id. at 5.

Petitioner Taylor is a model aircraft hobbyist living in the Washington, D.C., area. Taylor argues that Section 336 of the FAA Modernization and Reform Act bars both the FAA’s Registration Rule and Advisory Circular 91-57A.

II

We first consider Taylor’s challenge to the Registration Rule.

Section 336 of the FAA Modernization and Reform Act of 2012 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule is undoubtedly a rule. By requiring the prospective registration of all model aircraft, the Registration Rule announces an FAA “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4) (defining “rule” for purposes of the Administrative Procedure Act). In addition, the Registration Rule is a rule “regarding a model aircraft.” FAA Modernization and Reform Act § 336(a). The Registration Rule sets forth requirements for “small unmanned aircraft, including small unmanned aircraft operated as model aircraft.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there be any doubt about whether the Registration Rule is a rule “regarding a model aircraft” for purposes of Section 336, the Registration Rule states that its “definition of ‘model aircraft’ is identical to the definition provided in section 336(c) of Public Law 112-95,” the FAA Modernization and Reform Act. Id. at 78,604.

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.

We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements—-to register, to pay fees, to provide information, and to display identification—on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties—civil and criminal, including prison time—on model aircraft owners who do not comply. See id. at 78,630.

In short, the Registration Rule is a rule regarding model aircraft.

Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act....”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.

Ill

We next consider Taylor’s challenge to FAA Advisory Circular 91-57A. The Circular prohibits the operation of model aircraft in certain areas, including in the Washington, D.C., Flight Restricted Zone. Taylor argues, among other things, that the Circular violates Section 336(a) of the FAA Modernization and Reform Act of 2012 because it too is a rule regarding model aircraft.

We need not consider that question because Taylor’s challenge is untimely. A person seeking to challenge an FAA order must file the challenge within 60 days of the order’s issuance. 49 U.S.C. § 46110(a). The FAA published notice of Advisory Circular 91-57A in the Federal Register on September 9, 2015. See Revision of Advisory Circular 91-57 Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 (Sept. 9, 2015). Taylor filed his petition for review on January 12, 2016—more than two months after the 60-day deadline had passed.

A court may allow a late petition filed if the petitioner has “reasonable grounds” for missing the deadline. 49 U.S.C. § 46110(a). Taylor advances two grounds for his delay. But neither constitutes reasonable grounds under this statute.

First, Taylor argues that the FAA did not provide adequate notice that it had issued the new Circular. But on September 9, 2015, the FAA published its revisions in the Federal Register. See 80 Fed. Reg. 54,367. And Congress has determined that publication in the Federal Register “is sufr ficient to give notice of the contents of the document.” 44 U.S.C. § 1507.

Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.

Ultimately, Taylor admits that he simply did not know about the revised Circular until the FAA launched a “media blitz” to publicize it. Taylor Br. 68. That may be understandable. But under our precedent, Taylor must point “to more than simply ignorance of the order” as reasonable grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition for review of Advisory Circular 91-57A is therefore untimely.

The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act. We grant Taylor’s petition for review of the Registration Rule, and we vacate the Registration Rule to the extent it applies to model aircraft. Because Taylor’s petition for review of Advisory Circular 91-57A is untimely, that petition is denied.

So ordered.

      . Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.

      . We note that Section 336(b) expressly preserves the FAA's authority to "pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system." FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.


author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roberto TORRES, Defendant-Appellant.
    No. 16-50320
    United States Court of Appeals, Fifth Circuit.
    Filed May 18, 2017

      Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Donna F. Coltharp, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender’s Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Roberto Torres appeals the denial of a motion for reduction of his sentence. We reverse and remand.

I.

Torres’s sentence stems from convictions in 2007: conspiracy to possess with intent to distribute marihuana, to import marihuana, and to launder money instruments. He was sentenced under the 2007 version of the United States Sentencing Guidelines (U.S.S.G.). Because the district court determined that the laundered money was proceeds of a drug conspiracy, the three convictions were grouped together for sentencing per U.S.S.G. § 3D1.2(c). That meant that Torres’s base offense level for his money-laundering offense was derived from the total offense level for his drug-trafficking offenses, as U.S.S.G. § 2Sl.l(a)(l) commanded.

Torres’s total offense level for his drug-trafficking offenses was 39, yielding a guideline sentencing range of 262-327 months. The range for the money-laundering offense was based entirely on the calculations for the drug-trafficking offenses and yielded an identical range. The statutory maximum for a money-laundering offense, however, was 240 months. 18 U.S.C. § 1956(a)(2). Faced with those facts, the court sentenced Torres to 262 months for each drug conviction and 240 months for money-laundering, with the sentences to run concurrently.

In May 2015, Torres and the government filed an “Agreed Motion for a Sentence Reduction.” Under 18 U.S.C. § 3582(c)(2), a court can reduce the sentence of a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Amendment 782 to the Sentencing Guidelines, effective November 1, 2014, reduced the quantity-determined offense levels in the drug-trafficking guidelines by two levels. See U.S.S.G. App. C, amend. 782. That had the effect of reducing Torres’s offense level to 37 under the amended guidelines, which would have yielded an advisory range of 210-262 months. The government and Torres agreed that a sentence of 210 months under the new guidelines would be comparable to his actual sentence of 262 months under the old guidelines.

The district court agreed, at least as regards drug-trafficking. But at the hearing on the motion for reduction, the court was skeptical that it had the power to reduce Torres’s sentence for money-laundering based on Amendment 782, noting that the money-laundering offense “[was] really not up for consideration.” It could reduce the sentences for drug-trafficking, but the sentence for money-laundering would “stay at 240 months.” Torres’s counsel concurred with the district court’s assessment.

The court denied the motion for reduction, apparently reasoning that denying it entirely would put Torres in a better position to appeal than would a grant of the motion with a reduction to 240 months. Torres appeals; he contends that Amendment 782 lowered his base offense level for both drug-trafficking and money-laundering. The government now urges affirmance despite having joined in the motion for reduction.

II.

The parties contend that we should review the district court’s decision for abuse of discretion; indeed, that is the typical standard of review of an order on a Section 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (per curiam). Torres, however, raises a new argument on appeal— namely, that Amendment 782 reduces his base offense levels for both the drug and money-laundering offense. We review for plain error any arguments not made to the district court and raised for the first time on appeal. Indeed, Torres’s counsel agreed with the district court that the base offense level for money-laundering could not be reduced.

To reverse on plain error, we must find that three initial requirements are met: (1) “[T]here must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned”; (2) “the legal error must be clear or obvious”; and (3) “the error must have affected the appellant’s substantial rights.” If those prerequisites are satisfied, we have discretion to correct the error, but “only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ”

A.

Section 3582(c)(2) permits a district court to reduce a sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that,has been subsequently lowered....” A decision on whether to reduce a sentence requires a two-step inquiry; first, “[a] court must ... determine that a reduction is consistent with [U.S.S.G.] § 1B1.10”; if it so determines, it then must examine “whether the authorized reduction is warranted ... according to the factors set forth in [18 U.S.C.] § 3553(a).” Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). “In determining whether, and to what extent, a reduction ... is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant....” U.S.S.G. § 1B1.10(b)(1). In other words, if the range under which the defendant was originally sentenced has been amended, the court should substitute the amended range for the original and leave everything else unchanged.

Torres claims' that the district court erred in not recognizing that his money-laundering conviction was subject to the same reduction as were the drug-trafficking offenses. He bases his assertion on the language of the guidelines. Section 2S1.1, which the PSR identified and the district court applied, deals with “[[laundering of [mjonetary [[Instruments.” It prescribes use of “[t]he offense level for the underlying offense from which the laundered funds were derived, if ... the defendant committed the underlying offense.” U.S.S.G. § 2Sl.l(a)(l). And that is what the PSR recommended—that Torres’s offense level for money-laundering be identical to the level for drug-trafficking.

The significant point is that the money-laundering offense level was entirely dependent on the drug-trafficking level. And neither side disputes that Amendment 782, properly applied to Torres’s drug-trafficking offense levels, reduce those levels from 39 to 37. But any reduction or increase in the drug-trafficking level would induce a corresponding change in the money-laundering level; Section 3582(c)(2) refers specifically to sentencing range, not any given offense. Thus, the district court’s stated view that its hands were tied with regard to reducing the money-laundering sentence was error. If a reduction was appropriate for the drug-trafficking offense levels, then it was appropriate for money-laundering as well.

Because there was error, we explore whether it was clear or obvious. Puckett, 556 U.S. at 135, 129 S.Ct. 1423. It was. Our conclusion that the district court erred can be reached by “a straightforward application of the guidelines,” and any error that can be identified purely by an uncomplicated resort to the language of the guidelines is plain.

B.

We therefore consider whether the error affected Torres’s substantial rights. Id. “Where the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights.” Molina-Martinez, 136 S.Ct. at 1347. There is nothing in the record to suggest that the district court would have denied a sentence reduction if it had been aware of the correct range. Its solicitude toward Torres’s counsel (by denying the motion entirely, to make it easier to ap-’ peal) suggests that, had it operated under a correct understanding of the guidelines, it would have reduced the sentence. In any event, the default is that a district court’s reliance on an incorrect range affects substantial rights.

C.

The remaining question, which is close in this case, is whether we should exercise our discretion to correct the error. The mere fact of plain error that affects substantial rights does not lead to automatic reversal. Instead, we must conclude that “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423. “The fourth prong ... is not satisfied simply because the ‘plainly’ erroneous sentencing guideline range yields a longer sentence than the range that, on appeal, we perceive as correct.” United States v. Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). Our discretion to correct plain errors “ ‘should be employed in those circumstances in which a miscarriage of justice would otherwise result.’ ”

“We sometimes exercise discretion to correct a plain error where the imposed sentence is ‘materially or substantially above the properly calculated range.’ ” Though we have exercised our discretion to correct those kinds of errors, a large gap between the correct range and the improperly-calculated-yet-relied-upon range does not mandate correction where other factors counsel abstention. Such factors include the district court’s determination that a sentence within the range was insufficient punishment to suit the goals of 18 U.S.C. § 3553(a) and recidivism.

This case is closer to Mudekunye and Price than it is to Wikkerink and Davis. The decision to deny a reduction here was based entirely on error with regard to the money-laundering offense. The court made no mention of recidivism or of the nature of this offense. And it initially sentenced Torres to 262 months, at the bottom of the then-correctly-calculated range of 262-327 months, suggesting that it felt the guidelines adequately served the purposes of Section 3553(a).

Moreover, the disparity between the correctly calculated range for resentencing and what the district court felt it was bound by is large. Because the court thought that the money-laundering guideline range was unaffected by Amendment 782, it concluded that the most to which it could reduce Torres’s sentence was to 240 months. Barring that, it seems it would have been ready to grant the joint motion to reduce to 210 months, a difference of 30 months, and there is an additional 52 months between the bottom of the correct range and what Torres will actually serve absent a reduction.

A significant disparity in time to be served satisfies the third prong of affecting substantial rights but is often not sufficient to meet the high requirements of the fourth prong. Here, however, we have, as an additional element, the fact that the government joined in the motion for reduction but now supports its denial. That raises a question as to the “fairness ... of judicial proceedings,” Puckett, 556 U.S. at 135, 129 S.Ct. 1423, that is sufficiently ■serious that we elect to exercise our discretion. We make no comment on whether we would do so if the mere difference in months were not compounded by the specific history of these proceedings.

III.

The government contends that the district court did not make a definitive decision on whether Torres was eligible for a reduction but, instead, decided that a reduction, even if authorized, was not warranted. In the government’s view, the court did not make a decision on the first step of Dillon but grounded its denial in Dillon step two—that a reduction was not “warranted ... according to the factors set forth in § 3553(a).” Dillon, 560 U.S. at 826, 130 S.Ct. 2683.

The record does not support that notion, and the government’s brief does not do much for it either. The government does not quote any portion of the transcript to support its assertion, but only cites the entirety of the transcript with no further explanation. The district court only once referenced Torres’s conduct in committing the offense, doing so after it had already made the legal error, that is the subject of this appeal. On such a silent record, we are not tempted to infer a denial based on the Section 3553(a) factors.

The order denying a motion for reduction of sentence is REVERSED and REMANDED for further proceedings as needed. We express no view on what decisions the district court should make on remand.

      . We refer to these collectively as the "drug-trafficking offenses."

      . All of the above facts regarding the appro- ' priate offense categories and guidelines ranges for Torres's various offenses were in the presentence report ("PSR”), whose findings the district court accepted.

      .The Sentencing Commission also made these amendments retroactive to those who, like Torres, had been sentenced under previous versions of the guidelines. See U.S.S.G. App. C, amend. 788.

      . See, e.g., Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); United States v. Escalante-Reyes, 689 F.3d 415, 418-19 (5th Cir. 2012) (en banc) (noting rule).

      . When the district court suggested that Torres’s “money laundering sentence is really not up for consideration,” Torres’s counsel responded "[rjight.” The court also suggested that "[e]ven if I went to 210 months [on the drug-trafficking offenses], his sentence [for money-laundering] is still going to stay at 240 months,” to which Torres's lawyer agreed.

      . Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citation and . internal quotation marks omitted and alterations in original); see also, e.g., Escalante-Reyes, 689 F.3d at 419 (reciting standard).

      . Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

      . United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (per curiam), abrogated on other grounds by Molina-Martinez v. United States, - U.S. -, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016); see also, e.g., United States v. Rosales-Mireles, 850 F.3d 246, 248-49 & n.1 (5th Cir. 2017); United States v. Espinoza, 677 F.3d 730, 736 (5th Cir. 2012).

      . See, e.g., United States v. Davis, 602 F.3d 643, 648, 650 (5th Cir. 2010) (refusing to exercise discretion); United States v. Reyna, 358 F.3d 344, 352 (5th Cir. 2004) (en banc) (declining "to adopt a blanket rule that once prejudice is found under the [third plain error prong], the error invariably requires correction”).

        .Escalante-Reyes, 689 F.3d at 425 (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770).

      . Rosales-Mireles, 850 F.3d at 250 (quoting United States v. John, 597 F.3d 263, 289 (5th Cir. 2010)).

      . See, e.g., United States v. Mudekunye, 646 F.3d 281, 290-91 (5th Cir. 2011) (exercising discretion where defendant was sentenced 19 months outside the correct range); John, 597 F.3d at 286 (exercising discretion where sentence was 21 months outside the correct range); United States v. Price, 516 F.3d 285, 289 & n.28 (5th Cir. 2008) (exercising discretion where court incorrectly calculated range as 110-120 months and imposed 110-month sentence where correct range was 92-115 months).

      . See United States v. Wikkerink, 841 F.3d 327, 338-39 (5th Cir. 2016). There, the district court believed the correct range was 180-210 months, when it in fact was 70-87. Id. at 336-37. The mandatory minimum was 180 months, but the court chose to double thal. Id. Despite the large difference, we declined to exercise our discretion. Id. at 338-39. The court had stated that it felt the guideline range did not adequately capture the "troubling” nature of the crimes and that an above-guidelines sentence was necessary both because the defendant was a recidivist and because he needed to be deterred from future criminal conduct. Id. Given the articulated reasons as to why the range did not adequately capture defendant’s culpability, we declined to exercise our discretion. Id.

      . E.g., id.

      . See, e.g., United States v. Davis, 602 F.3d 643, 650-52 (5th Cir. 2010).

      . The cases cited deal with purported errors in the initial sentencing and not, as here, the denial of a motion for resentencing. But each situation deals with an error in calculating the guideline range.

      . Indeed, most of the government’s brief is devoted to a lengthy and pointless recitation of Torres’s conduct that led to his original conviction—eleven of the brief's eighteen' pages. If the district court had referenced the egregiousness of Torres’s conduct at the re-sentencing hearing, or if there were any indication that his conduct contributed J:o the denial of a reduction, then this recounting might have had a purpose.


author: COOK, Circuit Judge.

text:
    Sofokli GAZELI; Mirela Gazeli aka Mirela Goxhaj, Petitioners, v. Jefferson B. SESSION, III, Attorney General, Respondent.
    No. 16-3270
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: May 18, 2017

      ON BRIEF: Marshal E. Hyman, Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC., Troy, Michigan, for Petitioners. Carmel A. Morgan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Before: DAUGHTREY, ROGERS, and COOK, Circuit Judges.
   OPINION

COOK, Circuit Judge.

Facing removal from the United States, Sofokli and Mírela Gazeli asked an immigration judge (IJ) to approve two sets of applications to adjust their immigration status. The IJ concluded that the Gazelis were ineligible for adjustment under their first set of applications and that it lacked jurisdiction to consider their second. The Board of Immigration Appeals (BIA) affirmed. In their petition for review, the Gazelis raise issues of first impression regarding the interpretation and validity of two immigration regulations. Because the BIA properly applied federal law, and because the challenged regulations are reasonable interpretations of the Immigration and Nationality Act (INA), we DENY their petition for review.

I. Background

“Under the Immigration and Nationality Act, an alien can become a permanent resident by obtaining an employment visa. To do so, the alien must complete a three-step process.” Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633, 634 (6th Cir. 2013) (citations omitted). First, the alien’s potential employer must apply for and receive labor certification from the Department of Labor (DOL). Id. (citing 8 U.S.C. § 1154(b)(3)(C); 20 C.F.R. § 656.17(a)(1)). Second, that employer must file an 1-140 petition for a work visa with the Citizenship and Immigration Services (USCIS). Id. (citing 8 U.S.C. § 1154(a)(1)(F); 8 C.F.R. § 204.5(a)). Third, if the USCIS approves the petition, the alien must then apply to adjust his immigration status. Id. (citing 8 U.S.C. § 1255; 8 C.F.R. § 245.2(a)(3)(ii)).

Petitioners are natives and citizens of Albania. In July 2001, Sofokli came to the United States under a B-2 visitor visa, with his wife Mírela following a few months later. Although Sofokli’s visa permitted him to stay in the United States only until January 1, 2002, Petitioners remained in the United' States without authorization after that date while Sofokli sought an employment visa.

On May 6, 2002, four months after So-fokli’s visa expired, his employer applied for labor certification for Sofokli, which the DOL granted on April 15, 2003. His employer then filed an 1-140 petition for a work visa for Sofokli on October 24, 2003.

Petitioners applied to adjust their status from visitor to permanent resident the same day, with Mírela filing as her husband’s derivative beneficiary. Thereafter, the USCIS granted Petitioners advance parole, which permits an alien who is otherwise inadmissible to leave the United States and reenter at a later date. See Rais v. Holder, 768 F.3d 453, 456 n.2 (6th Cir. 2014) (citing In re Arrabally, 25 I. & N. Dec. 771, 777 (B.I.A. 2012)). Petitioners left the United States and returned a few months later in April 2004 to await adjudication of their applications.

In February 2005, the USCIS approved the work-visa petition filed by Sofokli’s employer. Unfortunately for Petitioners, the USCIS denied their adjustment applications a few weeks later, relying on an INA provision that bars aliens from adjusting their status if they have accrued more than 180 days in the United States without “lawful status.” See 8 U.S.C. § 1255(k)(2). Following the denial of their applications, Petitioners departed again and were paroled into the United States in 2005. They filed a second set of adjustment applications upon their return, which US-CIS denied in September 2006.

A few months later, the Department of Homeland Security served Petitioners with a notice to appear before an IJ, alleging that Petitioners remained in the United States without authorization and were subject to removal. Appearing before the judge, Petitioners denied removability and renewed both their first and second adjustment applications.

The IJ denied Petitioners’ request to adjust their status and ordered their removal to Albania. The judge found that Sofokli had accrued more than 180 days out of “lawful status” at the time of his first application. As the judge saw it, So-fokli’s lawful status expired on January 1, 2002, yet he did not apply to adjust his status until October 24, 2003. The judge rejected Sofokli’s argument that he remained in lawful status by virtue of his employer’s pending labor-certification request and work-visa petition. The judge held that she lacked jurisdiction to consider Sofokli’s second set of applications. The BIA, acting through a single judge, issued a separate opinion affirming in all respects. Petitioners timely filed a petition for review.

II. Standard of Review

“Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion, rather than summarily affirming the IJ’s decision, we review the BIA’s decision as the final agency determination.” Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009) (citing Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)). We review questions of law de novo, but afford substantial deference to the BIA’s interpretation of the INA and accompanying regulations. Shewchun v. Holder, 658 F.3d 557, 561 (6th Cir. 2011) (citing Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009)).

III. Discussion

In their petition for review, the Gazelis assert their eligibility for adjustment under both their first and second sets of adjustment applications. We address each in turn.

A. Petitioners’ First Set of Adjustment Applications

Section 245 of the INA, 8 U.S.C. § 1255, provides the framework governing Petitioners’ eligibility to adjust their immigration status. Although the beneficiary of an approved work-visa is generally eligible, § 1255(c) disqualifies aliens who are “in unlawful immigration status” on the date they file their applications or who “failed (other than through no fault of [their] own or for technical reasons) to maintain continuously a lawful status since entry into the United States.” 8 U.S.C. § 1255(a), (c)(2). This eligibility bar, however, comes with an exception relevant here. Section 1255(k) permits the beneficiary of an approved work-visa petition to adjust his status if he has not accrued more than 180 days out of “lawful status” prior to applying for adjustment. 8 U.S.C. § 1255(k). In effect, subsection (k) acts as a 180-day grace period to subsection (c)’s requirement that an applicant be in lawful status at the time of filing.

Here, Sofokli’s visitor visa expired on January 1, 2002. Petitioners filed their first adjustment applications with the US-CIS on October 24, 2003, outside of § 1255(k)’s 180-day window. The BIA therefore concluded that they were ineligible for adjustment.

Petitioners’ primary argument is that the employer’s labor-certification application filed on May 6, 2002, tolled the running of time in unlawful status during its pendency, so that he was in unlawful status for only 125 days.

Petitioners’ argument turns on the proper understanding of “lawful status.” The operative definition, provided in regulations promulgated by the Attorney General, consists of six categories of lawful status: lawful permanent residency, non-expired or extended non-immigrant status, refugee status, asylee status, valid parole status, or eligibility under the Immigration Nursing Relief Act of 1989. 8 C.F.R. § 1245.1(d)(1). The Attorney General’s regulation does not include a pending labor-certification application, an omission that Petitioners argue renders the regulation an “unreasonably narrow construction” of lawful immigration status not due Chevron deference.

Because the INA does not define “lawful immigration status,” Congress has not “directly spoken to the question at issue,” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 853, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)—here, whether a pending request for labor certification confers lawful status. Furthermore, because Congress authorized the Attorney General to prescribe regulations to govern the grant of status adjustments, 8 U.S.C. § 1255(a), the definition in the regulation controls unless “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778.

The Attorney General’s definition—with its six categories of “lawful” aliens—fits comfortably within the statutory framework. An employer’s application for labor certification is only the first step in seeking adjustment of status via an employment visa. See Patel, 732 F.3d at 634. Neither an approved labor certification nor an approved work-visa petition confers permanent-resident status; the beneficiary must then apply for adjustment with the Attorney General, who retains discretion to deny the application even if the alien meets the INA’s eligibility requirements. See 8 U.S.C. § 1255(a); Ferrans v. Holder, 612 F.3d 528, 531 (6th Cir. 2010). This framework suggests that only the Attorney General’s imprimatur confers lawful immigration status, not the alien’s completion of the preliminary steps necessary to apply.

Petitioners counter by pointing out that seeking adjustment of status through an approved work visa often takes more than 180 days to complete. Yet once an employer begins the process, the holder of a B-2 visitor visa may have trouble demonstrating the nonimmigrant intent necessary to extend the visa. See 8 U.S.C. §§ 1184(b), 1101(a)(15)(B) (requiring visitor-visa applicants to demonstrate that they “have[ ] a residence in a foreign country which [they] ha[ve] no intention of abandoning” and are visiting “temporarily for pleasure”). As Petitioners see it, § 1255(k)’s short eligibility window, the difficulty of extending visitor status while the DOL processes a labor certification, and § 1245.1(d)(l)’s definition of lawful status combine to “exclude[ ] from adjustment of status eligibility the very nonciti-zens who are going through the mandatory preliminary steps of applying for adjustment of status.” This, according to Petitioners, renders § 1245.1(d)(l)’s categories of “lawful” aliens unreasonably narrow.

We disagree. Congress, not the Attorney General, settled on a 180-day safe-harbor period and required that visitors establish they are in the United States “temporarily for pleasure” before extending a B-2 visitor. visa. See 8 U.S.C. §§ 1255(k), 1184(b), 1101(a)(15)(B). Petitioners’ practicalities argument therefore ignores the fact that, by legislative design, “the B-2 visitor admission is inconsistent with efforts to immigrate.” Matovski v. Gonzales, 492 F.3d 722, 728 (6th Cir. 2007). Although nothing prohibits B-2 visa holders from adjusting their status, they must satisfy the eligibility requirements that Congress imposed. See 8 U.S.C. § 1255(c), (k). Section 1245.1(d)(1) “is a reasonable agency interpretation entitled to our deference.” Chaudhry v. Holder, 705 F.3d 289, 292-93 (7th Cir.2013) (upholding 8 C.F.R. § 245.1(d)(1), which is identical to § 1245.1(d)(1)); Dhuka v. Holder, 716 F.3d 149, 156-59 (5th Cir. 2013) (same).

Because the pending labor-certification application did not confer “lawful status,” we reject Sofokli’s argument that he accrued less than 180 days out of status.

Moreover, we lack jurisdiction to consider Petitioners’ alternative argument that the DOL’s delay in processing Sofok-li’s labor certification should excuse their failure to file within § 1255(k)’s 180-day grace period. On appeal, Petitioners argue that the DOL’s delay in processing Sofok-li’s labor-certification application is a “technical reason” that excuses their failure to maintain lawful status under 8 U.S.C-. § 1255(c).. However, despite citing § 1255(c) in their brief below, Petitioners never asked the BIA to excuse their noncompliance with § 1255(k) as a “technical reason.” Instead, they argued that “Mr. Gazeli was in lawful status while [his labor-certification application] was pending, after its approval, and while his 1-140 petition and concurrently filed adjustment of status application were pending beginning October 24, 2003.” Because Petitioners did not properly present their “technical reasons” argument to the BIA, we lack jurisdiction to consider it on appeal. Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005).

B. Petitioners’ Second Set of Adjustment Applications

After the USCIS denied their first set of applications, Petitioners received advance parole, left the United States, and filed a second set of applications upon their return. The USCIS denied those applications too, and the IJ held that it lacked jurisdiction to adjudicate them in Petitioners’ removal proceedings. The BIA affirmed. In their petition for review, the Gazelis maintain that the IJ had jurisdiction. We disagree.

In general, adjustment applications renewed by aliens placed in removal proceedings are subject to the exclusive jurisdiction of the immigration courts. 8 C.F.R. § 1245.2(a)(1)(i). Federal regulations, however, make an exception for “arriving aliens” placed in removal proceedings, whose applications may not be adjudicated in immigration court unless the alien meets certain statutory conditions enumerated in 8 C.F.R. § 1245.2(a)(1)(ii). In relevant part, the regulation provides that, in order for an application to be subject to the jurisdiction of the immigration courts, the arriving alien must have filed the application while in the United States and must have “departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue the previously filed application for adjustment of status.” Id. § 1245.2(a)(l)(ii)(A), (B) (emphasis added).

The BIA concluded that Petitioners’ second set of adjustment applications was not “previously filed” because Petitioners filed them after returning from advance parole. On appeal, Petitioners challenge the BIA’s holding on two grounds. First, they maintain that the IJ has jurisdiction “under the plain language of 8 C.F.R. § 1245.2(a)(1)(h).” Second, they argue that § 1245.2(a)(1)(h) is an impermissible reading of the INA.

(1) Petitioners Do Not Satisfy the Requirements of § 1245.2(a)(1)(h)

We reject Petitioners’ “plain language” argument because it rests on a mistaken reading of the regulation. According to Petitioners, they satisfy the regulation’s requirements because they “departed and returned” to the United States to pursue “a previously filed application”— their first set of applications. Under Petitioners’ reading, once an alien files a single application before being granted advance parole, § 1245.2(a)(1)(h) authorizes the immigration judge to consider an unlimited number of applications that the alien might file upon return.

Petitioners’ reading is untenable. Subsection (B) of § 1245.2(a)(1)(h) permits an IJ to consider an arriving alien’s adjustment application only if the alien is returning to pursue “the previously filed application,” not “a previously filed application.” And subsections (A), (C), and (D) each use the definite article to describe “the” application over which an immigration judge has jurisdiction. Id. § 1245.2(a)(l)(h)(A), (C), (D). Section 1245.2(a)(l)(ii)’s consistent.use of the definite article makes apparent that it grants jurisdiction over a specific application: “the previously filed application” that the alien is returning to pursue. See Rais v. Holder, 518 Fed.Appx. 476, 477 (6th Cir. 2013) (per curiam); Brito v. Mukasey, 521 F.Sd 160, 167-68 (2d Cir. 2008).

We turn next to Petitioners’ argument that § 1245.2(a)(l)(ii) is invalid under Chevron.

(2) Section 1245.2(a)(1)(h) is a Permissible Reading of the INA

Although the validity of § 1245.2(a)(1)(h) is an issue of first impression in this circuit, the Eleventh Circuit has upheld the regulation in a published decision. Scheerer v. United States Attorney Gen., 513 F.3d 1244, 1252 (11th Cir. 2008). We agree that the regulation is an appropriate exercise of the Attorney General’s authority to implement the INA.

Petitioners argue that § 1245.2(a)(1)(h) “conflicts with Congress’s clear intent to provide parolees equal access to the adjustment of status process.” They glean this intent from 8 U.S.C. § 1255(a), which provides:

The status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence, if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

Section 1255(a) plainly grants paroled aliens the right to apply for adjustment of status. And because § 1255(a) includes no language excepting arriving aliens in removal proceedings, multiple circuits have held that arriving aliens in removal proceedings must be permitted to seek adjustment. See Scheerer v. Attorney Gen., 445 F.3d 1311, 1320-22 (11th Cir. 2006); Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir. 2005); Zheng v. Gonzales, 422 F.3d 98, 120 (3d Cir. 2005); Succar v. Ashcroft, 394 F.3d 8, 30 (1st Cir. 2005). The question we must decide is whether,, by giving the USCIS— as opposed to immigration judges—exclusive jurisdiction over applications filed by arriving aliens in removal proceedings, § 1245.2(a)(1)(h) impermissibly interferes with that right.

In this case, it does not. Although § 1255(a) may require that paroled aliens in removal proceedings be afforded a forum to adjudicate their adjustment-of-status applications—an issue we need not decide—nothing in that section or elsewhere dictates a particular forum. To the contrary, “Congress has divided adjudication functions between DOJ and DHS and has authorized those departments to fill the gap as to specific application procedures.” Scheerer, 513 F.3d at 1252. Section 1245.2(a)(1)(h) does just that by charging immigration courts with jurisdiction over an arriving alien’s adjustment application only if it was “previously filed”; otherwise, jurisdiction lies exclusively with the US-CIS. We agree with the Eleventh Circuit that § 1245.2(a)(1)(h) “appears fully consistent with the broader statutory framework governing adjustment applications.” Scheerer, 513 F.3d at 1252.

Petitioners argue that § 1245.2(a)(1)(h) impermissibly “exclud[es] an entire category of applicants from a form of relief explicitly made available to them by statute.” Although Petitioners never say so directly, they apparently believe that § 1255(a) requires that immigration courts—not the USCIS—adjudicate adjustment applications filed by arriving aliens in removal proceedings. But as already explained, § 1255(a) is silent on the division of labor between immigration courts and the US-CIS. Accordingly, the Attorney General’s decision to channel applications between the two does not deny Petitioners any relief “made available to them by statute.” Petitioners applied to adjust their status twice, and the USCIS adjudicated both sets of applications. Section 1255(a) requires no more. See, e.g., Succar, 394 F.3d at 26-30.

Petitioners maintain that the BIA’s decision in In re Arrabally compels a different result, but they are mistaken. In re Arra-bally addressed the definition of “departure” in an INA provision that bars the entry of any alien who “has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure.” See 8 U.S.C. § 1182(a)(9)(B)(ii). The BIA held that “an alien who has left and returned to the United States under a grant of advance parole has not made a ‘departure’” that triggers inadmissibility. In re Arrabally, 25 I. & N. Dec. at 779. The BIA recognized that considering advance parole to be a “departure” would “defeat[ ] the regulatory purpose of preserving advance parolees’ eligibility for adjustment of status.” Id. Petitioners read In re Arrabally broadly to say that the government may not “use advance parole as a trap to deprive the noncitizen of all of the rights that he previously had.”

Section 1245.2(a)(1)(ii), however, has no bearing on the admissibility of aliens returning from advance parole, nor does it affect a parolee’s eligibility for adjustment of status. It was Sofokli’s failure to file within § 1255(k)’s 180-day grace period, not Petitioners’ travel plans, that rendered them ineligible for adjustment. Accordingly, § 1245.2(a)(1)(h) does not act as a “trap to deprive [Petitioners] of all of the rights that [they] previously had.”

Because § 1245.2(a)(1)(h) is not “arbitrary, capricious, or manifestly contrary to the statute,” we join the Eleventh Circuit and uphold the regulation as a valid exercise of the Attorney General’s authority to implement the INA. See Scheerer, 513 F.3d at 1252.

IV. CONCLUSION

For these reasons, we DENY the petition for review.

      . Federal regulations permit an alien to apply for adjustment concurrently with his employer’s work-visa application. 8 C.F.R. § 245.2(a)(2)(i)(B).


author: BAUER, Circuit Judge.

text:
    Jesus DELGADO-ARTEAGA, Petitioner, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
    No. 16-1816
    United States Court of Appeals, Seventh Circuit.
    Argued November 29, 2016
    Decided March 23, 2017
    Amended May 12, 2017

      Daniel W. Thomann, Attorney, Daniel Thompson, P.C., Chicago, IL, for Petitioner.
    Anna E. Juarez, OIL, Attorneys, Department of Justice, Washington, DC, for Respondent.
    Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

       This amended opinion replaces and supersedes the opinion that was issued by the panel on March 23, 2017, and reported at 852 F.3d 635.

   BAUER, Circuit Judge.

Over seven years and three petitions later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado-Ar-teaga (“Delgado”), petitions for review of an order of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.F.R. § 1208.31(g)(2)(i). He also claims that the Board committed various legal errors. For the following reasons, we dismiss the petition for review in part for lack of jurisdiction and deny the remainder of his petition for review.

I. BACKGROUND

Delgado, a native and citizen of Mexico, entered the United States without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver in violation of 720 Ill. Comp. Stat. § 570/401(c)(2). He was sentenced to six months’ imprisonment with two years of probation.

On March 3, 2015, the Department of Homeland Security initiated expedited removal proceedings pursuant to 8 U.S.C. § 1228(b). See 8 C.F.R. § 238.1 (setting forth procedures). DHS served Delgado a Notice of Intent, charging that Delgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). On March 16, 2015, DHS issued a Final Administrative Removal Order (“FARO”), finding Delgado deportable as charged and ordering that he be removed to Mexico. Delgado expressed a fear of returning to Mexico to a DHS officer who then referred him to the Chicago Asylum Office for a reasonable fear interview.

On March 31, 2015, an asylum officer interviewed Delgado with his attorney present. On April 15, 2015, the asylum officer found that Delgado was credible, but concluded that he did not establish a reasonable fear of persecution or torture in Mexico. Delgado requested that an IJ review the asylum officer’s negative decision. After a review, the IJ found that Delgado had established a reasonable possibility that he would be persecuted or tortured in Mexico. Accordingly, on April 30, 2015, the IJ vacated the asylum officer’s decision, and placed Delgado in “withholding-only” proceedings. See 8 C.F.R. § 1208.31(g)(2)®. The IJ permitted Delgado to file an application for withholding of removal and relief under the CAT, which he filed on June 16, 2015. See id.

On August 5, 2015, the IJ held a hearing on the merits. Both Delgado and his wife testified in support of his applications. He argued that he had not been convicted of an aggravated felony and that he should have been allowed to apply for asylum under 8 U.S.C. § 1158. At the hearing, the IJ concluded that it was not authorized to review DHS’s determination that Delgado was convicted of an aggravated felony. The IJ ruled that Delgado was not eligible for asylum on two grounds: he was not permitted to apply for it in “withholding-only” proceedings; and, he was in removal proceedings pursuant to 8 U.S.C. § 1228(b). Thus, the IJ considered only Delgado’s applications for withholding of removal and relief under CAT.

On September 23, 2015, the IJ denied both applications. First, the IJ found that Delgado’s testimony and corroborating evidence was insufficient to meet his burden of proof under the REAL ID Act, 8 U.S.C. § 1158(b)(l)(B)(ii). Alternatively, the IJ concluded that even if Delgado established his burden of proof, the IJ would have denied Delgado’s application for withholding of removal because he had been convicted of a “particularly serious crime.” The IJ found that 720 Ill. Comp. Stat. § 570/401(c)(2) was categorically a “drug trafficking crime,” and thus, an illicit trafficking aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Because Delgado’s conviction was an aggravated felony, the IJ concluded it was presumed to be a “particularly serious crime,” 8 U.S.C. § 1231 (b) (3) (B) (ii).

The IJ noted that the Attorney General has determined that drug trafficking aggravated felonies “presumptively constitute” particularly serious crimes absent “extraordinary and compelling circumstances.” Matter of Y-L-, 23 I. & N. Dec. 270, 274 (BIA 2002); see Bosede v. Mukasey, 512 F.3d 946, 949-51 (7th Cir. 2008). In order to rebut this presumption, the applicant must establish that his conviction involved “(1) a very small quantity, (2) a very modest payment, (3) only peripheral involvement, (4) the absence of any violence or threat of violence, (5) the absence of any connection to organized crime or terrorism, and (6) the absence of any adverse or harmful effect on juveniles.” Bosede, 512 F.3d at 951 (citing Y-L-, 23 I. & N. Dec. at 276-77). If the applicant satisfies all six criteria, the applicant must also show “other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit).” Id. (quoting Y-L-, 23 I. & N. Dec. at 277).

The IJ held that Delgado’s conviction was a “particularly serious crime” because Delgado failed to meet the factors as required under Matter of Y-L-. Specifically, the IJ found that Delgado failed to show that his conviction did not have an adverse effect on juveniles because Delgado lived with a nine-year-old child. The IJ also found that Delgado failed to establish a peripheral role in his drug-trafficking conviction. Lastly, even if Delgado met his burden under Matter of Y-L-, the IJ concluded that it would have denied the application because Delgado did not show it was more likely than not that he would face persecution in Mexico.

Delgado appealed to the Board, and requested review by a three-member panel. He challenged essentially every aspect of the IJ’s decision. Additionally, he argued that the IJ incorrectly declined to consider an asylum application because 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires.

On March 14, 2016, a single-member Board adopted and affirmed the IJ’s decision, and entered an order dismissing Delgado’s appeal. The Board declined to consider Delgado’s argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires, reasoning that it lacked authority to make such a ruling. The Board concluded that the IJ properly found that Delgado’s aggravated felony conviction presumptively constituted a “particularly serious crime.” The Board explicitly agreed with the IJ’s finding that Delgado failed to establish that he had only peripheral involvement in his drug-trafficking conviction. In addition, the Board found that Delgado failed to establish two other requirements under Matter of Y-L-: that his conviction was not connected to any organized crime; and, that the drugs were to be distributed solely for social purposes. A motion to reconsider was denied. Thereafter, Delgado filed this petition for review.

II. DISCUSSION

Generally, we lack jurisdiction to review denials of discretionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(C); Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016). “But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review.” Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir. 2016) (citation omitted). Where, as here, the Board adopts and affirms the IJ’s decision and provides its own analysis, we review both decisions. Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

First, Delgado contends that DHS lacks legal authority to issue removal orders on behalf of the Attorney General pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires removal orders be issued by IJs. Second, he argues that he should have been permitted to apply for asylum under 8 U.S.C. § 1158 because the regulation at 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires. Lastly, he argues that the Board committed various legal errors and failed to follow its procedures when adjudicating his case, such as failing to refer the case to a three-member panel, engaging in improper fact-finding, and overlooking his arguments on appeal.

A. No Jurisdiction to Review Challenges to the Expedited Removal Process

Delgado challenges DHS’s FARO dated March 16, 2015, arguing that DHS lacked legal authority to order Delgado’s removal under 8 U.S.C. § 1228(b), and that the plain language of § 1228(b) requires that final orders of removal be issued by IJs.

We need not address these claims because Delgado’s challenges to DHS’s removal order were rendered moot when the IJ ordered that he be removed pursuant to DHS’s FARO. Article III limits our review to “Cases” and “Controversies,” and an “actual controversy” must exist through all stages of review. Already, LLC v. Nike, Inc., 568 U.S. 85, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013). “[I]f an event occurs ... that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (citation omitted). A case becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (citation omitted).

Here, no live case or controversy exists because we cannot grant any effectual relief to Delgado. He asks that we overturn DHS’s FARO and remand for further proceedings before an IJ. But this hypothetical remand would consist only of an IJ issuing a removal order; any remaining challenges are without merit or have been waived. Assuming that it were possible to grant such relief, it remains true that the IJ issued an order that ordered Delgado be removed pursuant to DHS’s FARO. As a result, the case is moot and we lack jurisdiction to review this challenge.

Lastly, we note that the jurisdictional issue here is further highlighted when considering the Tenth Circuit’s decision in Osuna-Gutierez v. Johnson, 838 F.3d 1030, 1033-35 (10th Cir. 2016). There, the petitioner brought an identical challenge, but it failed on the merits. Despite the same arguments, there are critical factual differences. In Osuna-Gutierrez, the petitioner was not placed in withholding-only proceedings, and, accordingly, the petitioner petitioned directly from DHS’s FARO without any proceedings before an IJ. Id. Unlike the petitioner in Osunar-Gutierrez, an IJ ordered that Delgado be removed consistent and pursuant to DHS’s FARO. This difference shows how the issue presented by Delgado is no longer “live.” While it is tempting to fall in line with the Tenth Circuit, this factual difference precludes us from reaching the merits. Because there is no case or controversy, we must dismiss Delgado’s challenge for lack of jurisdiction.

B. No Jurisdiction to Review Challenge to 8 C.F.R. § 1208.31(g)(2)(i)

Next, Delgado contends that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires because it impermissibly precluded him from applying for asylum under 8 U.S.C. § 1158(a)(1). He claims that § 1158 permits all aliens to apply for asylum regardless of whether the alien is subject to administrative removal under § 1228(b). In other words, Delgado claims that he was “injured” when the regulation denied him the opportunity to apply for asylum.

We lack jurisdiction to review this challenge because Delgado cannot meet the injury-in-fact element required for standing. To establish an injury in fact, Delgado must show that he “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (citation and quotation marks omitted).

Delgado cannot claim he suffered an “invasion of a legally protected interest” when 8 C.F.R. § 1208.31(g)(2)(f) precluded him from applying for asylum. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); see Ali v. Ashcroft, 395 F.3d 722, 732 (7th Cir. 2005) (noting “denial of such relief does not implicate due process”). Because Delgado fails to establish an injury in fact, he lacks standing to challenge § 1208.31 (g)(2)(i). Therefore, we dismiss this challenge for lack of jurisdiction.

C. Challenges to the Board’s Decision and Procedures 1. Three-Member Panel

Delgado argues that the Board erred by not referring his case to a three-member panel. A single member may take “advantage of the streamlined procedures found in 8 C.F.R. §§ 1003.1(e)(4), (e)(5) for routine cases that can be processed quickly.” Joseph v. Holder, 579 F.3d 827, 832 (7th Cir. 2009). The regulations give a single member discretion to refer an appeal to a three-member panel under six different circumstances, but referral is not required. 8 C.F.R. § 1003.1(e)(6) (listing circumstances); see Ward v. Holder, 632 F.3d 395, 398-99 (7th Cir. 2011) (noting “discretion ... is left to the panel member assigned to the case”). In Ward, we were unable to find that the Board “violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three.” 632 F.3d at 399. Like the single member in Ward, the single member here had the discretion to refer the appeal to a three-member panel, but did not do so. Delgado fails to demonstrate that the Board violated the review procedures as set forth in 8 C.F.R. § 1003.1(e).

2. Improper Fact-Finding

Next, Delgado contends that the Board violated 8 C.F.R. § 1003.1(d)(3)(iv) by engaging in improper fact-finding when it affirmed the IJ’s conclusion that Delgado was convicted of a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii). “An argument that the Board has exceeded the scope of review permissible under [8 C.F.R. § 1003.1(d)(3)(iv) ] is a legal one, for the purpose of § 1252(a)(2)(D).” Rosiles-Camarena v. Holder, 735 F.3d 534, 536 (7th Cir. 2013). The regulation provides that “[efccept for taking administrative notice of commonly known facts ..., the Board will not engage in fact-finding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see Estrada-Martinez v. Lynch, 809 F.3d 886, 894 (7th Cir. 2015) (“The Board must not find facts in the first instance.... ”); Lin v. Holder, 630 F.3d 536, 545 (7th Cir. 2010) (“[T]he Board is not permitted to engage in fact-finding on appeal.”).

Delgado argues that the Board imper-missibly found that Delgado failed to establish two additional requirements under Matter of Y-L-: the absence of organized crime involvement and “other, more unusual circumstances” (i.e., drugs were to be distributed solely for social purposes). See Y-L- 23 I. & N. Dec. at 276-77. In response, the government does not dispute Delgado’s argument, but claims that the Board’s additional fact-finding was harmless error.

We agree with Delgado that the Board exceeded the permissible scope of review when it made the two findings at issue in the first instance. Nonetheless, Delgado fails to show that he was prejudiced by the Board’s impermissible fact-finding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010); Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must show that the alleged error “may have had the potential to change the outcome of the hearing” (citation omitted)). Here, the Board adopted the IJ’s decision, and explicitly agreed with the IJ’s finding that Delgado did not establish that he had only peripheral involvement in the drug-trafficking conviction. By adopting the IJ’s decision, the Board also agreed with the IJ’s finding that Delgado failed to show that his conviction did not have an adverse effect on a juvenile. Despite the Board’s impermissible fact-finding, Delgado still fails to satisfy two factors under Matter of Y-L-. He did not show how he was prejudiced.

3. Arguments to the Board

Delgado argues that the Board overlooked and failed to consider his arguments on appeal. “A claim that the [Board] has completely ignored the evidence put forth by a petitioner is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512 (quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). This includes a claim that the Board “failed to exercise discretion at all by completely ignoring an argument.” Iglesias, 540 F.3d at 530-31. Although the Board “does not have to write an exegesis on every contention, it must consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. at 531. “We have frequently remanded cases when the BIA’s or the IJ’s failure to discuss potentially meritorious arguments or evidence calls into question whether it adequately considered th[ose] arguments.” Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007) (collecting cases).

Delgado lists, as we have done similarly here, several arguments that he claims were ignored by the Board: (1) his request for a three-member panel in his appeal to the Board; (2) that the IJ failed to properly develop the record; (3) that the IJ conducted an incorrect “pattern or practice” analysis under 8 C.F.R. § 1208.16(b)(2)(i); and, (4) his argument .concerning an unpublished Board decision concerning Florida state law (the Board addressed and rejected this last argument).

Delgado’s claim, alone, that the Board “completely ignored” an argument, does not sufficiently “enable a reviewing court” to determine whether that argument is “potentially meritorious.” “[I]t is not the work of this Court to formulate arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435, 447-48 (7th Cir. 1998), nor will we attempt to do so here. “[Fjailure to adequately develop and support these arguments results in waiver.” Lin, 630 F.3d at 543. Delgado’s challenge is perfunctory; he simply lists these arguments one-by-one, without any explanation. Therefore, we will consider these arguments waived.

III. CONCLUSION

For the foregoing reasons, we DISMISS Delgado’s petition for review in part for lack of jurisdiction and DENY the remainder of his petition for review.

      . In 2010, Delgado was subject to removal proceedings pursuant to 8 U.S.C. § 1229a, but those proceedings were terminated. He filed a petition with this Court, objecting to the termination of the § 1229a proceedings. Once DHS initiated proceedings under § 1228(b), Delgado filed a motion for voluntary dismissal of his first petition, which this Court granted. Delgado v. Lynch, 14-3127 (7th Cir. April 15, 2015). He filed a second petition with this Court after he was issued the Final Administrative Removal Order, but before he completed the reasonable fear interview. The government filed a motion to dismiss the petition, which we granted because the FARO was not “final” for purposes of our review. Delgado v. Lynch, 15-1810 (7th Cir. Aug. 7, 2015).