PHILADELPHIA (CN) - The Justice Department suggested during a Third Circuit hearing Tuesday that the attorney general has full authority to demand reconsideration of green card holders' residency status at any time - a shift that, if accepted by the court, could radically impact the nation's more than 12 million permanent residents.

The government's newfound assertion came during a hearing for Mohammad Qatanani, a Palestinian-born man and longtime New Jersey imam who has sought permanent residency for decades amid government accusations of Hamas ties.

Qatanani and his family migrated to New Jersey in 1996, where he became imam of the Islamic Center of Passaic County, one of New Jersey's largest mosques.

Qatanani applied for permanent residency in 1999, but was denied in 2006 after federal officials discovered that the Israeli government detained him in the West Bank in 1993. They asserted that Qatanani was subsequently arrested and pleaded guilty to being a member of Hamas. Qatanani has repeatedly denied these accusations, claiming he was only detained and adding that Israeli forces abused him during his detention.

While an immigration judge ruled against deporting Qatanani in 2008 and granted him permanent residency, the government promptly appealed.

In 2020, the immigration judge again ruled in favor of Qatanani. Nearly one year later, however, the Board of Immigration Appeals initiated certification of the ruling, ultimately rescinding Qatanani's green card.

Qatanani appealed.

Representing the Justice Department, attorney Lindsay Murphy posited that the immigration judge's failure to request required ministerial acts, including assignment of a visa number and receiving renewed biometric assessments, meant that the order granting Qatanani residency was never finalized prior to Board certification.

Even if the case was made final, she contended, the appellate board would have been able to reopen it for certification at any time.

U.S. Circuit Judge Arianna Freeman, a Joe Biden appointee, pressed Murphy on her latter assertion, unsure whether the Justice Department was refuting the existence altogether of a timeframe for certification.

"Do you mean even 10, 20 years later?" Freeman asked.

"The regulation doesn't impose any time limit, so yes," Murphy added. "But that certification requirement comes also with the requirement that there be exceptional circumstances."

When asked what qualifies as an "exceptional circumstance," Murphy told the panel that the attorney general has full discretion to make that determination - effectively suggesting that any green card holder's residency could be reconsidered at any time, for any reason.

"That's an extraordinary position for the government to be taking, don't you think?" Freeman asked.

"Congress has provided the executive, through the statute, with broad discretion to regulate matters of immigration," Murphy answered.

U.S. Circuit Judge Cheryl Ann Krause, a Barack Obama appointee, resisted Murphy's position, suggesting such a legal interpretation could theoretically upend the nation's entire immigration process.

"Don't we need some kind of principal limit if we're going to adopt the government's position here?" Krause asked Murphy. "What, if any, limit is there on the attorney general reviewing the adjustment of status going back 50 years?"

U.S. Circuit Judge Paul Matey, a first-term Donald Trump appointee, interrupted before Murphy could reply, proposing that the legislative branch could restrict the attorney general's power rather than the judiciary.

"If there is some limit here, it seems as though it could best be filled by Congress and not the court," Matey said, to which Murphy agreed. "I suppose the other way to look at it is, 'Well no, Congress hasn't capped the attorney general's discretionary function of adjustment, but they could perhaps if they wanted to,' and so ... that's where the standard limiting principle would come from."

Representing Qatanani, attorney David Isaacson noted that relevant statutes do not prescribe a timeframe by which an immigration judge's order becomes final. However, he told the court panel, complementary regulations put in place a 30-day period in which an appeal can be made before a decision is finalized.

"Those regulations do make reference to certification, but they don't...enable the BIA to travel backwards in time," Isaacson said. "As of that 31st day, there had been no certification, there had been no appeal. So the operation of the regulations is that as of that 31st day, the immigration judge's order becomes effective, and my client becomes a lawful permanent resident."

Still, Matey pushed back on the notion that the immigration judge's order definitively reached finality.

"Is it possible to frame it the other way, which is to say, there isn't really ever finality in an immigration system?" Matey asked. "There are tiers and steps that come at which point status changes, but nothing is ever final, even including naturalization - there are always grounds by which the sovereign can go back and say, 'The grace by which we have extended your permission to remain in the country has changed.'"

While Isaacson replied that Congress set criteria limiting the executive branch's ability to rescind adjustments of status, Matey then questioned whether Congress even has the authority to regulate executive decisions regarding immigration.

"I certainly understand Congress has written in this field and created standards that must be followed, but I don't know why that means we should be assuming that the executive's otherwise plenary power over the process of immigration doesn't exist unless Congress has affirmatively granted it," Matey said.

Isaacson again rejected Matey's assertion, suggesting that Congress is the primary holder of immigration-related constitutional powers since it establishes rules of naturalization and regulates foreign commerce.

While the second Trump administration has asserted it has universal authority on border issues, Isaacson added, such claims have never been upheld by a court.

During Isaacson's rebuttal, Matey again appeared to validate the government's position. Describing the parties' differing interpretations as "alternative readings," Matey suggested that allowing for a review of a green card holder's residency status at any time could be understood as an "ongoing process of interactive dialogue."

Isaacson did not refute Matey's assertion of two competing readings, instead noting that recent changes in Supreme Court precedent require that the Third Circuit panel determine which statutory interpretation should hold.

"The question now, the Supreme Court has told us, is 'Is that the best reading of the statute?'" Isaacson said. "And I don't think this reading of the statute that leaves [lawful permanent residents] in limbo for 10 or 20 years, where the government or attorney general can come certify the decision and say, 'Sorry we're taking away your permanent residency because it was never really final to begin with' - I don't think that's the best reading of the statute."

Source: Courthouse News Service