Former Department of Homeland Security regulations [8C.F.R.§§ 245.1(c)(8) and 1245.1(g)(8)] that barred “arriving aliens” from adjusting status in the United States were eliminated in 2006, and new regulatory changes [8C.F.R.§§ 245.2(a)(1)(ii) and 245.2(a)(5)(ii), 1240.11(a)(1),1245.2(a)(1),1245.2(a)(5)(ii)] were promulgated that limited adjudication of application for adjustment of status to the U.S. Citizenship and Immigration Services (USCIS). The Eleventh Circuit Court, in Scheerer v. Attorney general of the U.S. (2008) 513 F.3d 1244, upheld the regulation [8C.F.R. § 1245.2(a)(1)] limiting adjustment of status to the USCIS for arriving aliens as valid under the Chevron analysis because it did not eliminate adjustment of status as a remedy, but merely limited the forum (USCIS) for its filing and adjudication. And the Eighth Circuit Court, in Clifton v. Holder (2010), 598 F.3d 486, held that the Board of Immigration Appeals (BIA) could not deny a motion to reopen or remand in order for the petitioner to obtain a continuance or stay of the Immigration Court proceedings, to be able to seek adjustment of status before the USCIS.
Indeed, the Ninth Circuit Court had earlier ruled, in Kalilu v. Mukasey (2008) 548. F3d 1215, 1217-19, that the BIA abused its discretion by denying a motion to reopen, contrary to its doctrine in Matter of Velarde-Pacheco, 23 1&N Dec. 253. (BIA 2002), and on the ground that only the USCIS had jurisdiction over adjustment of status because the grant of the motion to reopen would have granted the USCIS the time to adjudicate the adjustment application before it. The more troubling issue is the extent the regulatory changes cited above has eliminated the Immigration Court’s jurisdiction to adjust status of arriving aliens. Indeed, the BIA, in Matter of Silitonga, 25 I&N Dec. 89 (BIA 2009), has decided that the changed regulations of the Department of Homeland Security (DHS) prohibit Immigration Judges from conducting adjustment of status hearings for arriving aliens except in narrow circumstances.
Limited Circumstances When Immigration Judges Have Jurisdiction On Adjustment of Status:
In Matter of Silitonga, supra, the BIA stated the limited circumstances as follows: “Thus, Immigrations Judges only have jurisdiction to adjudicate an arriving alien’s application for adjustment of status where (1) the alien properly filed the application for adjustment of status with the USCIS while in the United States, (2) the alien departed from and returned to the United States pursuant to a grant of advance parole, (3) the application for adjustment of status was denied by USCIS, and (4) the DHS placed the alien in removal proceedings. 8C.F.R.§§ 1245.2 (a)(1)(ii)(A)-(D).”
While the BIA had cited the Ninth Circuit Court’s 2008 decision in Kalilu, supra, “…that the Attorney General must provide an opportunity for arriving aliens in removal proceedings to apply for adjustment on the basis of a valid immigrant visa petition,” it then held that the Ninth Circuit Court’s 2005 decision in Bona v. Gonzalez, 425 F.3d 663, that an arriving alien may adjust status in removal proceeding is not controlling because current regulatory changes “that give limited jurisdiction to the Immigration Judges ameliorate those concerns.”
Conclusion:
Under current regulatory changes [8C.F.R. §§ 245.2 (a)(1) and 1245.2(a)(1)(ii) (2009)], Immigration Judges have no jurisdiction to adjudicate application for adjustment of status of arriving aliens, with the limited exception of aliens who have been placed in removal proceedings after returning to the United States, pursuant to a grant of advance parole to pursue a previously filed adjustment application.
(The Author, Roman P. Mosqueda, has practiced immigration law for over 20 years in Los Angeles, California. For comments, e-mail to rpm_law@yahoo.com, or call (213) 252-9481 for free consultation.