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"Arriving Aliens" in Removal and Adjustment of Status

In 1997, the former INS adopted a regulation that barred all "arriving aliens" who were in removal proceedings from adjusting status. See former 8 C.F.R. § 245.1(c)(8) (1997). At the same time, INS adopted a regulation broadly defining the term "arriving alien." As a result, almost all parolees in removal proceedings were barred from adjustment of status. This regulation was withdrawn by the government in 2006 following litigation spearheaded by the LAC and was replaced by a regulation that gives USCIS jurisdiction over these adjustment applications.

CASES | ADVOCACY | RESOURCES

CASES

Challenges to the 1997 Regulation

The LAC filed amicus briefs in nine courts of appeals in which we challenged the regulatory bar to adjustment of status for “arriving aliens” in removal proceedings. Ultimately, three courts accepted our arguments that the regulation violated the statute. Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005). A fourth court followed the lead of these three courts.  Scheerer v. U.S. Attorney General, 445 F.3d 1311 (11th Cir. 2006). Two other courts rejected our arguments and upheld the regulation. Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005); Momin v. Gonzales, 447 F.3d 447 (5th Cir. 2006). In response to this litigation, the government withdrew the challenged regulation and adopted an interim regulation that provides USCIS with jurisdiction to adjudicate an adjustment application of an “arriving alien” who is in removal proceedings. 71 Fed. Reg. 27585 (2006).

Challenges Brought Under the Interim RegulationRead more...

Building Diverse and Inclusive School Communities

Author: Eileen Gale Kugler

Told in a series of well-researched, first-person narratives, Eileen Gale Kugler’s book, Innovative Voices in Education: Engaging Diverse Communities, stands out for its honest and multi-layered approach to building diverse and inclusive school communities. Read more...

Year Released: 2015

Arizona teen pursues education in friendlier state

Published on Tue, Sep 07, 2010

According to the Immigration Policy Center in Washington, D.C., the DREAM Act, sponsored by Sens. Dick Durbin, D-Ill., and Richard Lugar, R-Ind., would allow "current, former and future undocumented high school graduates and GED recipients a pathway to U.S. citizenship through college or the armed services." This means that people like Alberto would be awarded a conditional lawful permanent resident status for six years, during which time they would have to complete two years of higher education or military service, although they would not be eligible for federal education grants.

Published in the Santa Fe New Mexican

Habeas Corpus

Pursuant to 28 U.S.C. § 2241, noncitizens may file habeas actions if they are held in immigration “custody” by the federal government in violation of the Constitution, laws, or treaties of the United States. Noncitizens face many practical hurdles in filing habeas petitions, including detention in remote locations and the government’s practice of transferring detainees between facilities. These problems are exacerbated when courts adopt the inflexible “immediate custodian” rule—which requires naming the person with immediate, day-to-day control over the petitioner as the respondent—since the case always must be filed where the person is detained. The LAC has appeared as amicus curiae in cases before the federal courts of appeals to urge the adoption of a more flexible approach allowing either the Attorney General or the Secretary of DHS to be named as the proper custodian in habeas petitions.

CASESRESOURCES

CASES

Bell v. Ashcroft, Nos. 03-2737, 03-2977 (2d Cir. amicus brief filed May 7, 2004) (case settled without a decision from the court).

Roman v. Ashcroft, No. 02-3253 (6th Cir. amicus brief filed Oct. 10, 2003) (court issued a precedent decision finding that the Attorney General was not the proper custodian in this case, but noting that the Attorney General may be a proper custodian where the detainee would not otherwise have a “realistic opportunity for judicial review of his executive detention”). Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003).Read more...

GOP aims to bolster immigration enforcement, but little change is likely

Published on Thu, Nov 04, 2010

“The new leaders of the House have made it clear that they’re going to continue to push an enforcement-only strategy,” said Mary Giovagnoli, director of pro-reform Immigration Policy Center. “It’s going to be a hard couple of years.”

Published in the New Mexico Independent

Litigation Clearinghouse Newsletter Vol. 3, No. 9

This issue covers updates to two naturalization delay cases; a circuit split on the interpretation of aggravated identity theft -- a development of heightened relevance because of recent immigration raids and prosecutions; and a successful challenge to a NY state licensing law.

Published On: Tuesday, August 5, 2008 | Download File

S.B. 1070 imitators facing challenges throughout the U.S.

Published on Fri, Jan 21, 2011

The American Immigration Council reports:

This week, another batch of state legislators in Nebraska, Indiana, Colorado and Texas dipped their toes in the enforcement-only waters, but found themselves facing an even louder chorus of opposition from their communities.

In South Carolina, the farming lobby is putting pressure on lawmakers considering “papers please” Arizona-style legislation to also consider farmers who need seasonal labor. Last week, amidst questions on the bill’s legality, South Carolina legislators sent an Arizona copycat bill (SB 20 ) to committee for further discussion. This week, however, the American Farm Bureau said it would pursue a policy that “assists the federal government in helping states create programs that give growers access to enough legal labor”—that is, temporary legal status.

 

Published in the Florida Independent

Litigation Clearinghouse Newsletter Vol. 1, No. 14

This issue covers the government's cert petitions in theft offense cases, BIA procedures for remanded cases, favorable decisions on adjustment of status after reentry without admission, and litigation support in VAWA cases.

Published On: Thursday, July 13, 2006 | Download File