ARCHIVED ISSUE PAGE (LAST UPDATED SEPTEMBER 2008)
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); § 1245(c)(8). At the same time, INS adopted a regulation broadly defining the term "arriving alien." As a result, under 8 C.F.R. § 245.1(c)(8) and § 1245.1(c)(8), almost all parolees in removal proceedings were barred from adjustment of status. Several courts struck down these regulations barring adjustment as ultra vires to the statute. On May 12, 2006, the government issued an interim rule deleting the absolute bar on an "arriving alien's" ability to adjust status in removal proceedings. Under the interim rule, USCIS has jurisdiction to adjudicate the adjustment application. Litigation under the interim rule has focused on the BIA's blanket denial of all motions to reopen, remand or continue a removal case while USCIS is adjudicating the adjustment application.
The American Immigration Council’s LAC would like to hear how USCIS is handling the adjustment applications of “arriving aliens” in removal proceedings who are now eligible to apply for adjustment with USCIS under the interim rule. Please contact firstname.lastname@example.org  to let us know what has happened in your clients' cases.
BIA Requests Briefing on the Issue of Whether USCIS Can and Will Decide an Adjustment Application of an "Arriving Alien" Under a Final Order of Removal
In In re Yauri, currently pending before the BIA, the respondent - an "arriving alien" parolee - moved the Board to reopen removal proceedings while USCIS decides his adjustment application. On September 23, 2008, the BIA requested supplemental briefing from the parties on the issue of whether USCIS "can and will" decide an adjustment application of an "arriving alien" under a final order of removal. AILF submitted an amicus brief arguing that, consistent with the adjustment statute and the interim rule, USCIS' policy is that an adjustment application can be decided notwithstanding a final removal order. AILF additionally argued that, for the interim rule to comply with the adjustment statute, the BIA must reopen cases such as Yauri while USCIS is deciding the adjustment application.
Several Courts of Appeals Overturn the BIA's Denial of Motions to Reopen, Remand or Continue the Removal Case of an "Arriving Alien" Where USCIS Is Adjudicating the Adjustment Application
Since the issuance of the interim rule in May 2006, the BIA has consistently denied all motions to reopen, remand or continue the removal case of a paroled "arriving alien" so that USCIS can adjudicate the parolee's adjustment application before a final order of removal is executed. The BIA's standard reason for denying these motions is that it has no jurisdiction over the adjustment application, a reason that is non-responsive to the motions. Several courts have overturned these BIA denials.
In Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir. 2008), the Ninth Circuit Court of Appeals held that the BIA abused its discretion when it denied the motion to reopen of an “arriving alien” who sought to apply for adjustment of status with USCIS. The BIA's denial was based solely on its lack of jurisdiction over the adjustment application. Read  more about this decision.
In Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008), an immigration judge denied petitioner's request to continue removal proceedings while USCIS decided his adjustment application. The BIA upheld the continuance denial solely because USCIS had jurisdiction over the adjustment application. The Seventh Circuit Court of Appeals held that this denial was an abuse of discretion; it did not address the critical point that, under the interim regulations, the petitioner needed more time for USCIS to complete its adjudication. The court also found that the continuance denial left the petitioner "trapped:" the statute and the interim regulation afford him the opportunity to seek adjustment with USCIS, but he could be deported by ICE before USCIS decided the application. The court remanded the case, holding that the BIA must provide a reason that is consistent with the statute if it denies a continuance in these circumstances.
In Ni v. Mukasey, 520 F.3d 125 (2d Cir. 2008), the petitioners argued that the BIA should have granted their motions to reopen so that they would not remain subject to final orders of removal while pursuing adjustment applications before USCIS. The Second Circuit Court of Appeals held that the BIA's reason for denying the motions--a lack of jurisdiction over adjustment applications--was unresponsive to the relief petitioners sought and therefore did not provide a "rational explanation" for the denial. The court remanded the case to the BIA.
The Eleventh Circuit Court of Appeals reached the opposite conclusion of the courts cited above, upholding a denial of a motion to reopen on this basis. Scheerer v. Chertoff, 513 F.3d 1244 (11th Cir. 2008).
Has the BIA Refused to Continue or Reopen a Case While the Adjustment Application is Pending at CIS? (3/2/07)
Under an interim rule, USCIS has jurisdiction to adjudicate adjustment of status applications for “arriving aliens” in removal proceedings. See 71 Fed. Reg. 27585 (May 12, 2006). However, the BIA has refused to reopen, continue or otherwise hold a removal proceeding in abeyance pending CIS adjudication of the adjustment application. AILF has filed amicus briefs in petitions for review challenging this practice. Please email us at email@example.com  if the BIA refused to continue or reopen your client’s case. AILF is available to advise attorneys with “arriving alien” adjustment cases and may be able to appear as amicus curiae at the court of appeals.
LAC Files Amicus Briefs Arguing BIA Decisions are Violating Interim Regulations (3/2/07)
The LAC submitted an amicus brief in a case where the BIA refused to reopen removal proceedings for an “arriving alien” whose adjustment of status application is pending before CIS. Budrys v. Gonzales, No. 06-2187 (4th Cir. amicus brief filed 2/7/07). The LAC argues that the BIA’s decision violates the INA and the interim regulations regarding adjustment of status for arriving aliens. See 71 Fed. Reg. 27585 (May 12, 2006). The LAC made similar arguments in an amicus brief submitted in a Second Circuit case, Wang v. Gonzales, No. 05-2894-ag, (2d Cir. amicus brief filed 2/16/07).
AILF and AILA Comment on CIS and EOIR's interim regulations on "Arriving Aliens" in proceedings being able to adjust status (6/12/06)
On June 12, 2006, AILF and AILA submitted joint comments praising the Attorney General and the Department of Homeland Security for lifting the ban on "arriving aliens" being able to adjust to permanent resident status if they are in removal proceedings. The comments also strongly oppose suggestions for future limits on the exercise of discretion with respect to these cases. Read attached comments .
Government Withdraws Regulation Barring "Arriving Aliens" in Proceedings from Adjusting Status (5/12/06)
An interim rule by EOIR and USCIS deletes the absolute bar on an "arriving alien's" ability to adjust status if he or she is in removal proceedings. The interim rule, published on May 12, 2006, is effective immediately. The interim rule amends the regulations so that USCIS will have jurisdiction over adjustment applications notwithstanding the removal proceedings.
This amendment is a direct result of the litigation challenging the bar on adjustment that the American Immigration Law Foundation (AILF) has coordinated nationally. In particular, four courts of appeals have struck down this regulation, finding that it violated the statute, while two courts have upheld it. As EOIR and USCIS explain in the supplementary information to the interim rule, conflicting decisions by the courts of appeals will result in inconsistent application of the adjustment laws. The interim rule further explains that "because the regulations are currently unenforceable in four circuits, covering 18 states, the only immediate way to provide the necessary finality and consistency is by repealing the regulations."
While this interim rule represents an important victory for immigrants categorized as "arriving aliens," it is not the final rule. DHS and the Attorney General indicate in the interim rule that they are considering further amendments to the regulations that could negatively restrict the exercise of discretion by USCIS when adjudicating these adjustment applications. Comments on these proposals were due 6/12/06.
Eleventh Circuit Strikes Down Regulation Barring Parolees Who Are "Arriving Aliens" From Adjusting While In Removal Proceedings (4/16/06)
In Scheerer v. U.S. Attorney General, 445 F.3d 1311 (11th Cir. 2006), the Eleventh Circuit has joined the First, Third and Ninth Circuits, and struck down 8 C.F.R. § 1245.1(c)(8) because it violates § 245(a) of the Immigration and Nationality Act (INA). The decision can be found here .
The regulation at issue, 8 C.F.R. § 1245.1(c)(8) (since deleted), barred all arriving aliens from adjusting status if they have been placed in removal proceedings. The Scheerer Court found that there was an "intractable conflict between the statute and the regulation." While the statute contemplates that paroled "arriving aliens" - "virtually all of whom are placed in removal proceedings" - should be eligible to apply for adjustment of status, the regulation bars all paroled "arriving aliens" in removal proceedings from adjusting status. Because of this fundamental conflict, the Court found that the regulation was "not a permissible construction of the statute."
Ninth Circuit Follows Succar v. Ashcroft and Strikes Down the Regulation Barring “Arriving Aliens” in Removal Proceedings from Adjusting Status (9/30/05)
On September 30, 2005, In a precedent decision, the Court of Appeals for the Ninth Circuit joined two other federal appeals courts and invalidated 8 C.F.R. § 245.1(c)(8) after finding that it conflicted with INA § 245(a). Bona v. Gonzales 425 F.3d 663 (9th Cir. 2005). The invalidated regulation barred all “arriving aliens” – which includes the majority of parolees – from adjusting status if they are in removal proceedings. Click here  for a link to the Bona decision.
The Ninth Circuit adopted both the analysis and the holding of the First Circuit in Succar v. Ashcroft, 394 F.3d 8 (1st. Cir. 2005). The Bona Court found that the regulation directly conflicts with INA § 245(a) – which grants parolees the right to apply for adjustment of status – by barring all parolees in removal proceedings from being eligible to apply for adjustment of status. The Court also found that the regulation creates “absurd results when viewed in light of the larger statutory scheme.”
Third Circuit Joins First Circuit, Striking Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings (9/8/05)
On September 8, 2005, The Court of Appeals for the Third Circuit ruled that 8 C.F.R. § 245.1(c)(8) is invalid because it “contradicts the clear language and expressed intent” of Congress in INA § 245(a) to allow parolees to adjust status. This regulation barred all arriving aliens – which includes the majority of parolees – from adjusting status if they have been placed in removal proceedings.
The case is Zheng v. Gonzales 422 F.3d 98 (3d Cir. 2005). The American Immigration Law Foundation (AILF) appeared as amicus curiae in support of the petitioner. Click here  for a link to the Zheng v. Gonzales decision.
In so ruling, the Third Circuit joined the First Circuit, which earlier this year struck down the same regulation in the case Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). While the two courts followed a somewhat different analysis, they both reached the same result.
First Circuit Strikes Down Regulation Barring Parolees Who Are “Arriving Aliens” From Adjusting While In Removal Proceedings (1/5/05)
In a landmark decision, the Court of Appeals for the First Circuit on January 5, 2005, ruled that 8 C.F.R. § 245.1(c)(8) was invalid because it was inconsistent with the clear intent of Congress in INA § 245(a) to allow parolees to adjust status. This regulation (since deleted) barred all arriving aliens – which includes the majority of parolees – from adjusting status if they have been placed in removal proceedings. The court held that the Attorney General had no discretion to prohibit an entire category of persons from adjusting status – particularly where, as here, Congress had specifically included parolees as a category of individuals eligible to adjust under INA § 245(a).
The case is Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). The American Immigration Law Foundation (AILF) and the Massachusetts Institute for Law Reform appeared as amicus curiae in support of the petitioner.
Click here  for a link to the Succar v. Ashcroft decision.
Legal Action Center Practice Advisories
- “Arriving Aliens” and Adjustment of Status: What is the Impact of the Government’s Interim Rule of May 12, 2006? 
- USCIS Adjustment of Status of “Arriving Aliens” with an Unexecuted Final Order of Removal 
Court Rules and Documents
Court Rules : Each court provides the local and federal procedural rules. Docket information also is available on the court websites. Some courts post appellate briefs as well.