Since an aggravated felony conviction does not constitute a ground of inadmissibility, it does not directly bar a noncitizen from obtaining lawful permanent resident status through “adjustment of status.”  This type of conviction, however, will often also fit within a different ground of inadmissibility and thereby bar a noncitizen from adjusting status.  For example, a sexual abuse of a minor conviction does not bar inadmissibility because it is an aggravated felony, which does not trigger inadmissibility, but because the conviction is also a crime of moral turpitude, which does.  If the aggravated felony conviction does not make the person inadmissible under any other ground of inadmissibility, or the if crime of moral turpitude ground of inadmissibility falls within the petty offense exception,[9] or is waived, the noncitizen is eligible to apply for adjustment of status even though the offense is an aggravated felony. 

 

Adjustment of status is the process by which a person who is admissible may obtain legal permanent resident status through a visa petition, usually filed by a U.S. citizen or lawful permanent resident relative, or an employer, without having to travel outside the United States.[10]  It is possible to obtain lawful permanent resident status by travelling outside the United States through “consular processing.”  See § 2.7, infra.  Immediate relatives can immigrate rapidly, since they may file the immigrant petition and the adjustment of status application simultaneously.[11]  Those subject to the preference quota system[12] may face a wait of months or years before being able to immigrate, with their place in line determined by the date on which they first filed their application with the INS.[13] 

It is also possible for an eligible legal permanent resident (e.g., one who has a U.S. citizen spouse) to “re-immigrate” by filing an application for adjustment of status in removal proceedings as a defense to deportation.[14]  If granted, the renewed adjustment of status will be a complete defense to removal.[15] 

 

Prior to 1997, noncitizens in exclusion proceedings were allowed to apply for adjustment of status before an Immigration Judge.[16]  However, in 1997, the Attorney General published a new regulation that barred this practice for noncitizens charged with a ground of inadmissibility (so-called “arriving aliens”[17]).[18]  Recently, however, the First and Third Circuits have held that this regulation is invalid, because it is ultra vires to the statute.[19] The Ninth Circuit appears to agree, at least as applied to people making an initial application to adjust.[20]  Although the Eighth Circuit has expressly disagreed with the First Circuit on this point,[21] other courts may choose to follow the reasoning of the First.  The BIA has itself suggested that certain “arriving aliens” may be eligible to adjust status despite the regulation.[22] 

 

In some circumstances, noncitizens who entered the United States illegally, and had valid visa petitions filed on their behalf prior to April 30, 2001, may be able to adjust status to a lawful permanent resident.[23]  However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status.[24]  Nor, generally, is a noncitizen who has been in the United States illegally for over one year, and has multiple illegal re-entries.[25]  A pending application for adjustment of status does not itself confer any legal status.[26]

 

While adjustment of status is not per se precluded for someone even with a serious criminal record,[27] a person who falls within a ground of inadmissibility cannot obtain adjustment of status unless a waiver is granted.[28]  Waivers of inadmissibility that may be used in conjunction with an application for adjustment of status include waivers under INA § § 212(d)(11) (alien smugglers), 212(h) (certain criminal grounds), 212(i) (false statements), and former 212(c).  See § § 2.44-2.46, infra.[29]

 

            Once a noncitizen has been deported after suffering an aggravated felony conviction, s/he is permanently inadmissible, and ineligible to return to the United States, although a waiver of this ground of inadmissibility is available in the Attorney General’s discretion.  See § 2.18, infra.

[9] INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[10] INA § 245, 8 U.S.C. § 1255; 8 C.F.R. § § 245.1-245.22, 1245.1-1245.22.

[11] 8 C.F.R. § § 245.2(a)(1), (2), 1245.2(a)(1), (2).  A person is classified as an immediate relative when s/he is the spouse, parent (of a child over 21), or unmarried child (under 21 years of age) of a U.S. citizen.  See INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i).

[12] A person is classified as a preference relative if s/he is the single son or daughter (over 21) of a U.S. citizen (1st Preference); spouse or unmarried child (under 21) of a lawful permanent resident (2A Preference); unmarried son or daughter (over 21) of a lawful permanent resident (2B Preference); married son or daughter of a U.S. citizen (3d Preference); or brother or sister of an adult U.S. citizen (4th Preference). INA § 203(a), 8 U.S.C. § 1153(a).  The children of preference relatives may obtain derivative status upon adjustment of their parents.  INA § 203(d), 8 U.S.C. § 1153(d).  The preferences for employment-based immigrant visas are controlled by INA § 203(b), 8 U.S.C. § 1153(b).  

[13] For a recorded message giving the priority dates and preferences for relative and employment-based immigrant visas, call the State Department at (202) 663-1514.  This information is also contained in the State Department “Visa Bulletin” which can be viewed on-line at http://travel.state.gov (select the Visa section, which contains the Visa Bulletin).

[14] Applications for adjustment by permanent residents are legally permitted.  See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Parodi, 17 I. & N. Dec. 608, 611 (BIA 1980); Matter of Loo, 15 I. & N. Dec. 307 (BIA 1975).

[15] Family immigration was changed profoundly by the passage of IIRAIRA, which created new grounds of inadmissibility based on unlawful presence under INA § 212(a)(9), 8 U.S.C. § 1182(a)(9).  These are discussed in more detail in general immigration texts.  To summarize, a person who has been in unlawful status since April 1, 1997 for 180 days to one year, leaves the country, and then applies to return, will be held inadmissible for three years from the time of departure.  If the person has been in unlawful status for a year or more since April 1, 1997, or if the person is deported or removed, s/he will be held inadmissible for ten years.  A discretionary waiver based on hardship to certain permanent resident or citizen family members is available.  INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).  A person who has been unlawfully in the U.S. for one year, or who has been deported or removed, who then leaves and attempts to re-enter unlawfully, is permanently inadmissible.  A discretionary waiver can be applied for beginning ten years after the departure.  INA § 212(a)(9)(C), 8 U.S.C. § 1182(a)(9)(C). 

[16] Matter of C.H., 9 I. & N. Dec. 265 (Ass’t Comm’r 1961) (noncitizen in exclusion proceedings eligible to apply for adjustment of status if s/he is otherwise qualified).

[17] 8 C.F.R. § 1101.1(q).

[18] 8 C.F.R. § 1245.1(c)(8); 8 C.F.R. 245.1(c)(8) (arriving aliens can adjust before DD only if they have not currently or formerly been put in removal proceedings). See Government Response to Comments, “Implementing Certain Sections of the 1996 Immigration Reform Act (Mar. 6, 1997),” 62 Fed. Reg., No. 44, pages 10311-10395; Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. Aug. 10, 2004) (noncitizen in exclusion proceedings has no right to adjust status before the IJ; noncitizen must instead apply to District Director).

[19] Zheng v. Gonzalez, 422 F.3d 98 (3d Cir. Sep 8, 2005) (regulation at 8 C.F.R. § 1245.1(c)(8), barring adjustment of status for “arriving aliens,” is ultra vires to the INA); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. Jan. 5, 2005) (8 C.F.R. § 245.1(c)(8), which bars noncitizens who have been paroled into the United States and placed in removal proceedings from applying for adjustment of status, held invalid as inconsistent with 8 U.S.C. § 1255(a)).

[20] Compare Bona v. Gonzalez, 425 F.3d 663 (9th Cir. Sept. 30, 2005) (DHS regulation precluding “arriving aliens” from seeking adjustment of status in removal proceedings is ultra vires to the INA), with Jiang v. Gonzales, 425 F.3d 649 (9th Cir. Sept. 23, 2005) (noncitizen ineligible for adjustment of status as “arriving alien”).  Bona may be distinguishable from Jiang on the basis that Jiang had previously applied for adjustment of status to the district director and had been denied, where Bona had not previously made an application.

[21] Mouelle v. Gonzalez, 416 F.3d 923 (8th Cir. July 29, 2005).

[22] Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001) (suggesting argument that certain arriving noncitizens may adjust status under INA § 245(i), 8 U.S.C. § 1255(i)).  See also Mary Kenney, AILF Practice Advisory, Adjustment of Status for “Arriving Aliens” In Removal Proceedings:  Strategy Decisions to Challenge 8 C.F.R. § 245.1(c)(8), Oct. 18, 2005, available at http://www.ailf.org/lac/lac_pa_101805.pdf.

[23] INA § 245(i), 8 U.S.C. § 1255(i).

[24] Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. Jan. 12, 2005) (the reinstatement statute, 8 U.S.C. § 1231(a)(5)(1), provides that a prior order of removal may be reinstated against a noncitizen who has illegally re-entered the United States, and (2) bars him or her from applying for any form of “relief” under Chapter 12 of U.S.C. Title 8, which includes adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i)); Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. Nov. 23, 2004) (noncitizen who illegally re-entered United States after removal is barred from applying for adjustment of status when DHS has reinstated original order or removal under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), regardless of whether application was filed before or after prior order has been reinstated).

[25] Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir. May 9, 2005) (INA § 245(i), 8 U.S.C. § 1255(i) does not apply to noncitizens inadmissible to the United States under INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), which makes permanently inadmissible noncitizens who enter the United States illegally after having previously been present in the United States for over one year); accord, Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004); cf. Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004). But see Acosta v. Gonzales, 439 F.3d 550, 556 n.7 (9th Cir. Feb. 23, 2006) (noncitizen inadmissible for accruing more than one year of unlawful presence is eligible for penalty-fee adjustment of status: “We therefore reject the Government’s attempted reliance on 8 C.F.R. § 245.10(m) which states that an alien eligible for penalty-fee adjustment of status continues to accrue unlawful presence under § 1182(a)(9)(C). We need not defer to this agency regulation because it is not based on a permissible construction of the statute. Akhtar, 384 F.3d at 1198.”); Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. Oct. 18, 2005) (LIFE Act applies to status violators who have been in the United States for an aggregate period of over one year); Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).

[26] United States v. Lucio, 428 F.3d 519 (5th Cir. Oct. 12, 2005) (conviction under 18 U.S.C. § 922(g)(5)(A) [possession of firearm by undocumented noncitizen] upheld since undocumented noncitizen’s immigration status remains unlawful during the pendency of an application to adjust status; mere fact that he has received permission to work in the county does not alter the initial unlawfulness of his immigration status).

[27] See, e.g., Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all factors must be considered; after conviction of fraudulent hostage scheme, discretionary denial of adjustment reversed and remanded based on BIA’s failure to consider rehabilitation).

[28] Adjustment of status occurs on date full adjustment is granted, rather than on the date the noncitizen makes application for adjustment of status.  Therefore, a noncitizen granted temporary resident status, see § § 2.21-2.22, infra, must seek a waiver for any convictions committed after becoming a TPR.  Perez-Enriquez v, Ashcroft, 383 F.3d 994 (9th Cir. Sept. 9, 2004). 

[29] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005) (adjustment of status in combination with a waiver under INA § 212(c), 8 U.S.C. § 1182(c) permitted even where the offense waived is also an aggravated felony); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (adjustment of status in combination with a waiver under INA § 212(h), 8 U.S.C. § 1182(h) or INA § 212(c), 8 U.S.C. § 1182(c) is available as a defense to deportation).

RELIEF " ADJUSTMENT OF STATUS " GAY MARRIAGE
United States v. Windsor, __ S.Ct. __ (Jun. 26, 2013) (the Defense of Marriage Acts violated equal protection by denying federal benefits to gay married couples).

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIEN
Mouelle v. Gonzales, 126 S.Ct. 2964 (Jun. 26, 2006) (denying cert. and vacating decision in Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. Jul 29, 2005) for further consideration of new interim regulation, effective May 12, 2006).

RELIEF - ADJUSTMENT OF STATUS - DISTRICT COURT FINDS JURISDICTION TO REVIEW ADJUSTMENT OF STATUS APPLICATION PRIOR TO RENEWING REQUEST IN REMOVAL PROCEEDINGS
Hillcrest Baptist Church v. U.S.A., __ F.Supp.2d __, 2007 U.S. Dist. LEXIS 12782 (W.D. Wash. 2007) (under Ninth Circuit precedent, 28 USC 1331 (federal question jurisdiction) and the Administrative Procedure Act give the court jurisdiction to review DHS denial of adjustment of status before the noncitizen in placed in removal proceedings).

BIA

ADJUSTMENT OF STATUS " ADAM WALSH ACT " RETROACTIVITY
Matter of Jackson, 26 I. & N. Dec. 314 (BIA May 20, 2014) (Adam Walsh Act applies to all convictions suffered by any United States citizen at any time, even those occurring before the AWAs enactment).

ADJUSTMENT OF STATUS " ASYLEE
Matter of C-J-H, 26 I. & N. Dec. 284 (BIA 2014) (noncitizen who has already adjusted status from asylee to LPR cannot re-adjust under INA 209(b), as a defense to removal).

INADMISSIBILITY " UNLAWFUL PRESENCE BAR " DEPARTURE UNDER ADVANCE PAROLE DOES NOT TRIGGER INADMISSIBILITY
Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA Apr. 17, 2012) (noncitizen who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a departure . . . from the United States within the meaning of INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II)); clarifying Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), so the ten-year unlawful presence ground of inadmissibility, under INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182 (a)(9)(B)(i)(II), did not bar noncitizen with pending application to adjust status to legal permanent residency, who left the U.S. with advance parole).

RELIEF"ADJUSTMENT OF STATUS"INA 245(i)
Matter of Svetislav Ilic, 25 I.& N. Dec. 717 (BIA 2012) (to independently qualify for adjustment of status under INA 245(i), 8 U.S.C. 1255(i), as a derivative grandfathered alien, the principal beneficiary of the qualifying visa petition must satisfy the requirements for grandfathering, including the physical presence requirement of INA 245(i)(1)(C) of the Act, if applicable).

RELIEF " ADJUSTMENT OF STATUS " ADMISSION " MARIANA ISLANDS ADMISSION
Matter of C. Valdez, 25 I&N Dec. 824 (BIA 2012) (pre-November 28, 2009, admission to the Commonwealth of the Northern Mariana Islands (CNMI) by the CNMI Immigration Service does not constitute an inspection and admission or parole into the United States for purposes of adjustment of status pursuant to INA 245(a), 8 U.S.C. 1255(a) (2006)). http://www.justice.gov/eoir/vll/intdec/vol25/3755.pdf

RELIEF " ADJUSTMENT OF STATUS " 5 YEAR STATUTE OF LIMITATIONS ON RESCISSION
Matter of Cruz de Ortiz, 25 I&N Dec. 601 (BIA Sept. 20, 2011) (the 5-year statute of limitations to rescission of LPR status, in INA 246(a), 8 U.S.C. 1256(a), relates only to proceedings to rescind lawful permanent resident status acquired through adjustment of status, and is therefore inapplicable to bar the removal of an alien who was admitted to the United States with an immigrant visa), distinguishing Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009).

RELIEF - ADJUSTMENT OF STATUS - PAROLE
Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA Jun. 18, 2010) (conditional parole under INA 236(a)(2)(B) is a distinct and different procedure from parole under INA 212(d)(5)(A), and does not count as "parole" under INA 245(a) for purposes of adjustment of status).

RELIEF " ADJUSTMENT OF STATUS " INA 245(i) GRANDFATHERING LIMITS
Matter of Legaspi, 25 I. & N. Dec. 328 (BIA 2010) (noncitizen is not independently grandfathered for purposes of adjustment of status under INA 245(i), simply by virtue of marriage to another noncitizen who is grandfathered under section 245(i) as the result of having been a derivative beneficiary of a visa petition).

RELIEF - ADJUSTMENT OF STATUS - USCIS HAS EXCLUSIVE JURISDICTION TO ADJUDICATE ARRIVING ALIEN APPLICATION FOR ADJUSTMENT EVEN AFTER AN UNEXECUTED REMOVAL ORDER HAS BECOME ADMINISTRATIVELY FINAL
Matter of Yauri, 25 I. & N. Dec. 103 (BIA Oct. 28, 2009) (with a narrow exception not applicable to this case, USCIS has exclusive jurisdiction to adjudicate an arriving aliens application for adjustment of status under 8 C.F.R. 245.2(a)(1) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding).

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIEN - CUBAN REFUGEE ADJUSTMENT ACT
Matter of Martinez-Montalvo, 24 I. & N. Dec. 778 (BIA 2009) (under 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1)(ii), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732,80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application), superseding Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001).

RELIEF - ADJUSTMENT - CHILD STATUS PROTECTION ACT
Matter of Avila-Perez, 24 I. & N. Dec. 78 (BIA 2007) (CSPA applies to a noncitizen whose visa petition was filed before the CSPA effective date of Aug., 6, 2002, but who filed the application for adjustment after that date).

RELIEF - ADJUSTMENT - PROOF OF BONA FIDE MARRIAGE
Matter of Jara Riero and Jara Espinol, 24 I. & N. Dec. 267 (BIA 2007) (noncitizen seeking to establish eligibility for adjustment of status under INA 245(i), 8 U.S.C. 1255(i) (2000), on the basis of a marriage-based visa petition must prove the marriage bona fide at its inception to establish the visa petition was "meritorious in fact" pursuant to 8 C.F.R. 1245.10(a)(3)). http://www.usdoj.gov/eoir/vll/intdec/vol24/3577.pdf

RELIEF - ADJUSTMENT OF STATUS - UNAVAILABLE TO NONCITIZEN SUBJECT TO UNLAWFUL PRESENCE GROUND OF INADMISSIBILITY
Matter of Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (adjustment of status under INA 245(i), 8 U.S.C. 1255(i) (2000), is unavailable to a noncitizen who is inadmissible under INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II)). http://www.usdoj.gov/eoir/vll/intdec/vol24/3591.pdf

RELIEF - ADJUSTMENT OF STATUS - UNAVAILABLE TO NONCITIZEN SUBJECT TO UNLAWFUL PRESENCE GROUND OF INADMISSIBILITY
Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007) (adjustment of status under INA 245(i), 8 U.S.C. 1255(i), is not available to a noncitizen who is inadmissible under unlawful presence bar of INA 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(C)(i)(I)), disagreeing with Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006); Padilla-Caldera v. Gonzales, 426 F.3d 1294, amended and superceded on rehg, 453 F.3d 1257 (10th Cir. 2005). http://www.usdoj.gov/eoir/vll/intdec/vol24/3590.pdf

RELIEF - ADJUSTMENT OF STATUS - REMOVAL PROCEEDINGS - APPLICANT FOR ADJUSTMENT UNDER CHINESE STUDENT PROTECTION ACT CANNOT TRANSFER APPLICATION TO ALLOW ADJUSTMENT UNDER INA 245(i)
Matter of Wang, 23 I. & N. Dec. 924 (BIA May 25, 2006) (noncitizen whose adjustment application under the Chinese Student Protection Act was filed prior to the October 1, 1994 start of INA 245(i) application processing may not transfer the CSPA application into a INA 245(i) application). http://www.usdoj.gov/eoir/vll/intdec/vol23/3533.pdf

RELIEF - ADJUSTMENT OF STATUS - CHINESE STUDENT PROTECTION ACT - PERSON WHO ENTERED WITHOUT INSPECTION DISQUALIFIED FROM ADJUSTMENT UNDER CSPA
Matter of Wang, 23 I. & N. Dec. 924 (BIA May 25, 2006) (noncitizen who entered the United States without inspection is not eligible for adjustment of status under the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969).

ADJUSTMENT OF STATUS - CANNOT ADJUST TWICE ON SAME PETITION
Matter of Villareal-Zuniga, 23 I. & N. Dec. 886 (BIA 2006) (an application for adjustment of status cannot be based on an approved visa petition that has already been used by the beneficiary to obtain adjustment or admission as an immigrant).
http://www.usdoj.gov/eoir/vll/intdec/vol23/3527.pdf

JUVENILES - ADJUSTMENT WITH MULTIPLE CMT OFFENSES
Matter of C-M, 5 I. & N. Dec. 327 (BIA 1953) (adult cannot admit inadmissibility for admitting conduct that would have involved moral turpitude except that he admitted to no more than juvenile delinquency). Since the FAM [specifically 22 C.F.R. 40.21] does not apply to adjustment, the BIA case is binding on CIS.

RELIEF - ADJUSTMENT OF STATUS - BURDEN OF PROOF
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. Jun. 20, 2008) (noncitizen seeking to adjust status as a defense to removal must establish clearly and beyond doubt that he is not inadmissible to the United States).

First Circuit

ADJUSTMENT OF STATUS - LIFE ACT
Echevarria v. Gonzales, 505 F.3d 16 (1st Cir. Oct. 4, 2007) (denial of adjustment of status under the LIFE Act was proper where the I-130 visa petition was not approvable when filed because of marriage fraud).

ADJUSTMENT OF STATUS - FRAUD
Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. Sept. 6, 2007) (noncitizen who obtained lawful permanent resident status by fraud has not been lawfully admitted to the United States and is therefore ineligible for LPR cancellation of removal).

RELIEF - ADJUSTMENT OF STATUS - INADMISSIBILITY - VISA FRAUD - WAIVER
Coelho v. Gonzales, 452 F.3d 104 (1st Cir. Jul. 6, 2006) (applicant for adjustment of status properly held inadmissible because of a prior fraudulent attempt to gain an immigration benefit and ineligible for a waiver of inadmissibility because he did not have a qualifying relative). http://laws.lp.findlaw.com/1st/051971.html

Second Circuit

ADJUSTMENT OF STATUS " VISA WAIVER PROGRAM
Gjerjaj v. Holder, 691 F.3d 288 (2nd Cir. Aug. 28, 2012) (noncitizen from non-VWP country who fraudulently enters the U.S. with a false passport from a VWP country is bound by VWP restriction on removal proceedings).

RELIEF " ADJUSTMENT OF STATUS " RESCISSION " FIVE-YEAR BAR
Adams v. Holder, 692 F.3d 91 (2d Cir. Aug. 15, 2012) (the five-year limitation on rescinding an alien's adjusted status, INA 246(a), 8 U.S.C. 1256(a), does not apply to persons who obtained LPR status via consular processing: adjustment of status under the INA is properly construed as a technical term describing a process whereby certain aliens physically present in the United States may obtain permanent resident status ... without leaving the United States. Succar v. Ashcroft, 394 F.3d at 13 (quoting 3B Am.Jur.2d Aliens & Citizens 2134) (omission in original). Such a process does not extend to consular grants of immigrant visas.; five-year statute of limitations also does not bar removal proceedings).

RELIEF " ADJUSTMENT OF STATUS " RELEASE ON CONDITIONAL PAROLE PENDING REMOVAL PROCEEDINGS IS NOT PAROLED INTO UNITED STATES SO AS TO BE ELIGIBLE FOR ADJUSTMENT
Cruz-Miguel v. Holder, ___ F.3d ___, 2011 WL 1565847 (2d Cir. Apr. 27, 2011)(an alien released on conditional parole pending resolution of ongoing removal proceedings is not thereby paroled into the United States so as to be eligible for adjustment of status).

RELIEF - INADMISSIBILITY - 10-YEAR BAR - ADJUSTMENT OF STATUS
Mora v. Mukasey, 550 F.3d 231 (2d Cir. Dec. 16, 2008) (noncitizens inadmissible under INA 212(a)(9)(C)(i)(I) because they entered the United States after accruing more than one year unlawful presence are unable to adjust status under INA 245(i); deferring to Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007)).

RELIEF - LAWFUL PERMANENT RESIDENT STATUS TERMINATED BY OPERATION OF LAW BY FAILURE TO APPEAR AT INTERVIEW ON PETITION TO REMOVE CONDITIONS ON LPR STATUS
Severino v. Mukasey, 549 F.3d 79 (2d Cir. Dec. 3, 2008) (conditional permanent resident status terminates by operation of law on second anniversary of the date the CLPR status is granted unless CLPR timely files petition to remove condition and appears at scheduled interview; failure to appear at interview resulted in termination of LPR status).

RELIEF - ADJUSTMENT OF STATUS - RESCISSION - JUDICIAL REVIEW
Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. Sept. 3, 2008) (district court had jurisdiction to determine whether DHS had followed proper procedure, under 8 C.F.R. 246.1, in rescission of noncitizens LPR status; fact that noncitizen was not properly granted LPR status does not mean DHS can revoke status without following rescission procedures).

RELIEF - ADJUSTMENT OF STATUS - PROOF OF STATUS
Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. Sept. 3, 2008) ("because the agency has a non-discretionary duty to provide LPRs with proof of their status, see Etuk v. Slattery, 936 F.2d 1433, 1448 (2d Cir.1991) (holding that the relevant statutes and regulations require that LPRs be provided with documentation of their rightful legal status (emphasis added)), Section 1252(a)(2)(B) does not strip the district court of jurisdiction to review whether Sharkey is owed proof of her status.")

RELIEF - VOLUNTARY DEPARTURE - ADJUSTMENT BAR BASED ON FAILURE TO COMPLY WITH VOLUNTARY DEPARTURE
Singh v. Gonzales, 468 F.3d 135 (2d Cir. Nov. 8, 2006) (failure to voluntarily depart barred adjustment of status, under 8 U.S.C. 1229c(d), following grant of motion to reopen). http://caselaw.lp.findlaw.com/data2/circs/2nd/055181p.pdf

RELIEF - ADJUSTMENT OF STATUS - DISCRETIONARY FACTOR
Wallace v. Gonzales, 463 F.3d 135 (2nd Cir. Sept. 1, 2006) (adjudication as a "Youthful Offender" under New York State criminal law, N.Y.Crim. Proc. Law 720.10-720.35, may be used in determining whether noncitizen should be granted adjustment of status as a matter of discretion, even those the adjudication is not a "conviction" for removability purposes).

Third Circuit

ADMISSION"VISA WAIVER PROGRAM
Vera v. Atty General, 672 F.3d 187 (3d Cir. Mar. 1, 2012) (court may presume visa waiver entrant executed the statutorily required waiver of her right to challenge removal; even if waiver was not signed or invalid, prejudice must also be shown).

ADJUSTMENT OF STATUS " RESCISSION " STATUTE OF LIMITATIONS
Malik v. Atty Gen. of the U.S. (3d Cir. Oct. 4, 2011) (five-year statute of limitations for rescission of LPR status, at INA 246(a), applies to LPRs who obtained their status through adjustment of status, but not those who entered after consular processing).

RELIEF " ADJUSTMENT OF STATUS " INA 212(a)(9)(C) PERMANENT BAR NOT WAIVED BY LIFE ACT
Cheruku v. Attorney General of U.S., ___ F.3d ___, 2011 WL 4392429 (3d Cir. Sept. 22, 2011) (noncitizen barred from adjustment of status under INA 245(i) where the noncitizen is subject to inadmissibilty under INA 212(a)(9)(C)).

RELIEF " ADJUSTMENT OF STATUS " PAROLE
Delgado-Sobalvarro v. Attorney General of U.S., 625 F.3d 782 (3d Cir. Nov. 2, 2010) (petitioners were not eligible to adjust status under INA 245 on the basis of their INA 236 conditional parole, since conditional parole does not constitute parole into the United States for the purposes of adjustment of status under INA 245).

ADJUSTMENT OF STATUS - MISREPRESENTANTIONS
Garcia v. Atty Gen. of U.S., 545 F.3d 252 (3d Cir. Oct. 28, 2008) (five-year statute of limitations period for Attorney General to rescind a noncitizens adjustment of status on ground that noncitizen was ineligible for such adjustment, under 8 U.S.C. 1256(a), also bars DHS from charging deportability because she was inadmissible at time of entry or adjustment of status under INA 212(a)(7)(A)(i)(I), after a five year period).

ADJUSTMENT OF STATUS - STATUTE OF LIMITATIONS - FIVE-YEAR STATUTE OF LIMITATIONS BARS REMOVAL PROCEEDINGS ON THE BASIS OF A GROUND OF DEPORTATION KNOWN TO THE GOVERNMENT AT THE TIME IT ATTEMPTED TO RESCIND LAWFUL PERMANENT RESIDENT STATUS
Bamidele v. INS, 99 F.3d 557 (3d Cir. Nov. 1, 1996) (government was held time-barred by the five-year statute of limitations in INA 246(a), 8 U.S.C. 1256(a), from rescinding noncitizen's status on the sole grounds of his misconduct - obtaining AOB under INA 245(a), 8 U.S.C. 1255(a) on the basis of a sham marriage -- in obtaining the adjustment since it could not be rescinded because the government had this information, and took no action to rescind for five years, and therefore noncitizen could not be deported on that basis, so court of appeals granted review and vacated the deportation order).

Fourth Circuit

RELIEF " ADJUSTMENT OF STATUE " INA 245(i) " EQUITABLE TOLLING
Prasad v. Holder, __ F.3d __ (4th Cir. Jan. 12, 2015) (April 30, 2001 deadline for submitting visa petition under INA 245(i), is not subject to equitable tolling).

RELIEF - ADJUSTMENT OF STATUS
Ramirez v. Holder, ___ F.3d ___ (4th Cir. Jun. 22, 2010) (BIA's interpretation of INA 212(a)(9)(C)(i)(I) and INA 245(i) must be given Chevron deference; noncitizen who is inadmissible under 212(a)(9)(C), cannot adjust status under section 245(i)).

RELIEF - ADJUSTMENT OF STATUS
Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. Feb. 22, 2007), vacating Matter of Perez-Vargas, 23 I. & N. Dec. 829 (BIA 2005). (Immigration Judge has jurisdiction to determine whether an approved visa petition remains valid under applicable law; for example, IJ can determine whether employment violated visa and therefore disqualified noncitizen from adjustment of status), vacating Matter of Perez-Vargas, 23 I. & N. Dec. 829 (BIA 2005), within the Fourth Circuit. http://caselaw.lp.findlaw.com/data2/circs/4th/052313p.pdf

NOTE: This case does not upset the applicability of Matter of Perez-Vargas outside the Fourth Circuit.

Fifth Circuit

RELIEF " ADJUSTMENT OF STATUS " ASYLEE WHOSE STATUS WAS TERMINATED MAY APPLY FOR ADJUSTMENT OF STATUS
Siwe v. Holder, 742 F.3d 603 (5th Cir. Feb. 6, 2014) (an alien whose asylum has been terminated is not prohibited from applying for adjustment of status).

RELIEF " ADJUSTMENT OF STATUS INADMISSIBILITY " UNLAWFUL PRESENCE BAR
Bokhari v. Holder, 622 F.3d 357 (5th Cir. Sept. 29, 2010) (employment authorization under 8 C.F.R. 274a.12(b)(20) is not lawful status as defined in 8 C.F.R. 1245.1(d)(1)(ii)).

RELIEF - ADJUSTMENT OF STATUS - GOOD FAITH MARRIAGE NOT REQUIRED FOR EXTREME HARDSHIP WAIVER
Waggoner v. Gonzales, 488 F.3d 632 (5th Cir. May 30, 2007) (the plain language of 8 U.S.C. 216(c)(4) does not require a good faith marriage to obtain an extreme hardship waiver for failure to comply with the requirements for removing conditional lawful permanent resident status).

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIENS - VALIDITY OF REGULATION PRECLUDING ADJUSTMENT
Akhtar v. Gonzales, 450 F.3d 587 (5th Cir. May 23, 2006) (regulation precluding applications for adjustment of status from "paroled" "arriving aliens" in removal proceedings, 8 C.F.R. 245.1(c)(8) (1997), is not ultra vires to statute).
http://caselaw.lp.findlaw.com/data2/circs/5th/0460497cv0p.pdf

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIEN - REGULATION PRECLUDING ADJUSTMENT FOR ARRIVING ALIENS IN REMOVAL PROCEEDINGS HELD INVALID
Momin v. Gonzales, 447 F.3d 447 (5th Cir. Apr. 25, 2005) (8 C.F.R. section 245.1(c)(8), which deems arriving aliens who are in removal proceedings ineligible to apply for adjustment of status to lawful permanent resident, is not ultra vires to INA 245).
http://caselaw.lp.findlaw.com/data2/circs/5th/0560119cv0p.pdf

Sixth Circuit

RELIEF " ADJUSTMENT OF STATUS " TEMPORARY PROTECTED STATUS
Flores v. USCIS, __ F.3d __ (6th Cir. Jun. 4, 2013) (plain language of INA 244(f)(4) allows noncitizen who entered without inspection, then obtained TPS, to become an LPR despite illegal entry, and provides an exception to the inspected and admitted or paroled language of INA 245(a)).

RELIEF - ADJUSTMENT - RESCISSION
Stolaj v. Holder, 577 F.3d 651 (6th Cir. Aug. 19, 2009) (five-year statute of limitations on rescission of LPR status, found in 8 U.S.C. 1256(a), does not apply to noncitizen in removal proceedings and did not bar the government from initiating removal proceedings based on petitioners' fraud in their asylum applications).

RELIEF - ADJUSTMENT OF STATUS - WIDOW PENALTY
Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. Apr. 8, 2009) (noncitizen whose citizen spouse filed necessary immediate relative form, but then died within two years of qualifying marriage, remained spouse for purposes of adjudication of noncitizens's petition to adjust status to lawful permanent resident. Immigration and Nationality Act, 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i)), agreeing with Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), disagreeing with Robinson v. Napolitano, 554 F.3d 358 (3d Cir.2009).

RELIEF - REFUGEE STATUS - REFUGEE STATUS ENDS UPON ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENT, SO IMMIGRATION AUTHORITIES NEED NOT TERMINATE IT BEFORE REMOVAL
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008)(refugee status ends upon adjustment of status to lawful permanent resident, so immigration authorities need not terminate it before removal).

RELIEF - ADJUSTMENT OF STATUS - CHILD STATUS PROTECTION ACT
Ahmed v. Mukasey, 519 F.3d 579 (6th Cir. Mar. 20, 2008) (BIA abused discretion in denying a motion to remand to an IJ for further consideration of eligibility for adjustment of status as a "child" and immediate relative of an American citizen under the Child Status Protection Act and 8 U.S.C. 1255).

RELIEF - ADJUSTMENT OF STATUS
Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. Feb. 27, 2008) (noncitizen inadmissible for illegal reentry after deportation, under INA 212(a)(9)(C), is ineligible to adjust status under the LIFE Act), deferring to Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007).

Seventh Circuit

ADJUSTMENT OF STATUS " 245(i) ADJUSTMENT BARRED BY ILLEGAL RE-ENTRY UNDER INA 212(a)(9)(C)
Nunez-Moron v. Holder, ___ F.3d ___, 2012 WL 5315860 (7th Cir. Oct. 30, 2012) (inadmissibility under INA 212(a)(9)(C)(i)(II), 8 U.S.C 1182(a)(9)(C)(i)(II), bars adjustment of status under INA 245(i)); following In re Briones, 24 I. & N. Dec. 355 (BIA 2007); In re Torres"Garcia, 23 I. & N. Dec. 866 (BIA 2006).

RELIEF - ADJUSTMENT OF STATUS
Gonzalez-Balderas v. Holder, 597 F.3d 869 (7th Cir. Mar. 5, 2010) (8 C.F.R. 212.2(i)(2), allowing nunc pro tunc adjustment of status is inapplicable where the effect of the grant would be to lift the 10 year bar to unlawful presence), agreeing with In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006).

RELIEF - ADJUSTMENT OF STATUS
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. Jan. 20, 2010) (en banc) (VWP waiver of due process rights must be done both knowingly and voluntarily, but petitioner cannot establish that he was prejudiced even if he had known what the waiver said; adjustment of status application is barred by his valid VWP waiver or by the fact that, in the absence of a waiver, he never would have entered the United States in the first place).

NOTE: Although the Seventh Circuit stated that a VWP waiver must be "knowing and voluntary," it also required that where the waiver was not knowing or voluntary, the noncitizen must also prove prejudice. The court then found (it seems to me) that, essentially, no person who signs the waiver can establish prejudice: "Had he known what the waiver said, Bayo would have had two options, either of which would have led to summary removal. If he had signed the waiver anyway, knowing full well what it said, he would be in the same situation he is now [i.e. subject to removal without a hearing]. If he had refused to sign, he would have been removed summarily at the border because he did not have a proper visa." Bayo v. Napolitano, 593 F.3d 495, 506 (7th Cir. Jan. 20, 2010). Is it not true that everybody who has entered on the VWP and is removable had the same two options?

RELIEF - ADJUSTMENT OF STATUS
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. Jan. 20, 2010) (en banc) (noncitizens who enter on the Visa Waiver Program cannot adjust status within the United States, even if the adjustment is based on marriage to a U.S. citizen, if the adjustment application is filed after the VWP entry becomes invalidated (e.g. 90 days after admission)), agreeing with McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 52 F.3d 1094, 1097 (9th Cir. 2008); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008); Lacey v. Gonzalez, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006).

RELIEF - ADJUSTMENT OF STATUS - ADJUSTMENT BAR TRIGGERED BY ILLEGAL REENTRY AFTER REMOVAL
Lino v. Gonzales. 467 F.3d 1077 (7th Cir. Nov. 6, 2006) (INA 241(a)(5) precludes a previously removed alien who has since illegally reentered the United States from adjusting status under INA 245(i), and petitioner does not fall within any exemption to this statute). http://caselaw.lp.findlaw.com/data2/circs/7th/051078p.pdf

ADJUSTMENT OF STATUS - CONTINUANCE TO ALLOW NONCITIZEN ENTITLED TO APPLY TO BECOME ELIGIBLE TO APPLY.
Ahmed v. Gonzales, 465 F.3d 806 (7th Cir. Oct. 16, 2006) (fact that noncitizen was not currently eligible to apply for adjustment of status because he did not have a visa immediately available to him did not mean noncitizen was not entitled to apply for adjustment due to visa petition filed on his behalf; fact that visa was not yet current was not sufficient, in itself, to form basis of denial of a continuance to allow noncitizen to apply for adjustment once visa became available).
http://caselaw.lp.findlaw.com/data2/circs/7th/053965p.pdf

ADJUSTMENT OF STATUS
Jarad v. Gozales, 461 F.3d 867 (7th Cir. Aug. 24, 2006) (Immigration Judge did not commit legal error in making discretionary decision to deny INA 245(i) adjustment to noncitizen who failed to depart following deportation proceedings 13 years earlier; court lacks jurisdiction to review discretionary denial of INA 245(i) adjustment).

RELIEF - ADJUSTMENT OF STATUS
Pede v. Gonzales, 442 F.3d 570 (7th Cir. Mar. 24, 2006) (immigration judge is not required to continue proceedings to allow the USICE to process an adjustment application where the respondent is clearly not statutorily eligible to adjust).
http://caselaw.lp.findlaw.com/data2/circs/7th/051897p.pdf

RELIEF - ADJUSTMENT OF STATUS - REFUGEE ADJUSTMENT REQUIRES NO LPR AT TIME OF ADJUSTMENT - ASYLEE ADJUSTMENT HAS NO SUCH REQUIREMENT
Gutnik v. Ashcroft, 469 F.3d 683 (7th Cir. 2006) (refugee adjustment under INA 209(a) specifically includes a requirement that the refugee has not acquired permanent resident status at the time of adjustment; INA 209(b) for asylee adjustments does not contain the same requirement, so a conditional resident could apply for asylee adjustment as long as she remains a refugee within the meaning of INA 101(a)(42)(A) and meets the other requirements).

Eighth Circuit

RELIEF - ADJUSTMENT OF STATUS - 245(i) - 212(a)(9)(C) BAR
Villanueva v. Holder, 615 F.3d 913 (8th Cir. Aug. 5, 2010) (noncitizen that is inadmissible under 8 U.S.C. 1182(a)(9)(C)(i)(I) is not eligible for adjustment of status pursuant to 8 U.S.C. 1255(i)).

RELIEF - ADJUSTMENT OF STATUS - 245(i) - 212(a)(9)(C) BAR
Renteria-Ledesma v. Holder, 615 F.3d 903 (8th Cir. Aug. 4, 2010) (noncitizens inadmissible under INA 212(a)(9)(C)(i)(I) are not eligible for adjustment of status under 1255(i)), following Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007).

Ninth Circuit

RELIEF " ADJUSTMENT OF STATUS " RELIANCE
Acosta-Olivarria v. Lynch, 799 F.3d 1271 (9th Cir. Aug. 26, 2015) (noncitizen applying for adjustment of immigration status reasonably relied on Perez"Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004), before the BIA Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007), a decision directly disagreeing with Perez-Gonzales, despite obvious tension between Ninth Circuit and BIA prior to Briones, that case does not apply retroactively).

RELIEF " ADJUSTMENT OF STATUS " PERMANENT BAR " ILLEGAL REENTRY AFTER REMOVAL OR UNLAWFUL PRESENCE " RETROACTIVE APPLICATION
Carrillo de Palacios v. Holder, 708 F.3d 1066, 2013 WL 310387 (9th Cir. Jan. 28, 2013) (petitioner was not eligible to adjust status to lawful permanent resident, where: 1) she was inadmissible under INA 212(a)(9)(C)(i), 8 U.S.C. 1182(a)(9)(C)(i), because after she was ordered removed she returned to the United States without being admitted; 2) the agency's statutory interpretation of this statute applies retroactively to noncitizens who applied for adjustment of status prior to the Ninth Circuits decision in Duran-Gonzales v. Holder, 508 F.3d 1227 (9th Cir. 2007)). Note: This case discusses retroactive application of case law, rather than retroactivity as applied to statutes.

RELIEF " ADJUSTMENT OF STATUS " INA 212(a)(9)(C) BAR TO ADJUSTMENT
Garfias-Rodriguez v. Holder, ___ F.3d ___, 2012 WL 5077137 (9th Cir. Oct. 19, 2012) (en banc) (noncitizens inadmissible under INA 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(C)(i)(I), are ineligible for adjustment of status under INA 245(i), 8 U.S.C. 1255(i); this rule applies retroactively); deferring to Matter of Briones, 24 I. & N. Dec. 355, 371 (BIA 2007), and overruling Acosta v. Gonzales, 439 F.3d 550, 553"56 (9th Cir. 2006).

RELIEF " ADJUSTMENT OF STATUS " 212(a)(9)(C) BAR TO ADJUSTMENT
Carrillo de Palacios v. Holder, ___ F.3d ___ (9th Cir. Dec. 1, 2011) (withdrawing from prior decision which had stated INA 212(a)(9)(C)(i)(II), 8 U.S.C. 1182(a)(9)(C)(i)(II) barred adjustment of status for undocumented persons who left the United States prior to April 1, 1997 and re-entered after April 1, 1997), withdrawing prior opinion at 651 F.3d 969 (9th Cir. 2011). http://www.ca9.uscourts.gov/datastore/opinions/2011/12/01/09-72059.pdf

RELIEF " ADJUSTMENT OF STATUS " PERMANENT BAR
Duran Gonzales v. U.S. Dept. of Homeland Sec., 659 F.3d 930 (9th Cir. Oct. 25, 2011) (noncitizens otherwise eligible for adjustment under INA 245(i) are barred from adjustment under INA 212(a)(9)(C) if they have left the United States and returned without permission); rejecting argument this rule does not apply to applications filed prior to the Circuit's decision in Perez"Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004)).

RELIEF " ADJUSTMENT OF STATUS " INA 245(i) " UNLAWFUL PRESENCE
Garfias-Rodriguez v. Holder, ___ F.3d ___, No. 09-72603 (9th Cir. Apr. 11, 2011) (a petitioner who is inadmissible for unlawful presence under the three- or 10-year bars of INA 212(a)(9)(C)(i)(I) cannot apply for adjustment of status under INA 245(i)).

RELIEF " VISA WAIVER PROGRAM
Bingham v. Holder, ___ F.3d ___ (9th Cir. Mar. 23, 2011) (circuit court has jurisdiction to review removal order where noncitizen challenged validity of waiver agreement under Visa Waiver Program based on claim that the VWP waiver was not knowing and voluntary; allegedly unknowing waiver did not result in prejudice where noncitizen did not show he would have been able to contest his removal on any other ground or that he would have declined to sign the waiver if he had been fully informed).

ADJUSTMENT OF STATUS - ILLEGAL RE-ENTRY
Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. Apr. 2, 2010) (noncitizen who re-entered after deportation is currently ineligible to adjust status under INA 245(i), even though Ninth Circuit law in effect at the time of re-entry would have allowed adjustment).

ADJUSTMENT - ADAM WALSH ACT - FAILURE TO REGISTER AS A SEX OFFENDER - ELEMENTS
United States v. George, 579 F.3d 962 (9th Cir. Aug. 25th 2009) (conviction for failure to register as a sex offender under the Sex Offender Notification and Registration Act (SORNA) is affirmed where an individual's obligation to register is not dependent on a state's implementation of SORNA; irrelevant that Washington State had not implemented SORNA at the time of defendant's conviction).

RELIEF - ADJUSTMENT - USCIS HAS AUTHORITY TO REVOKE PREVIOUS APPROVAL OF VISA PETITION AT ANY TIME FOR GOOD CAUSE
Herrera v. USCIS, 571 F.3d 881 (9th Cir. Jul. 6, 2009) (amendment of 8 U.S.C. 1155 did not alter USCIS authority to revoke a previous approval of a visa petition "at any time" for "good and sufficient cause.").

RELIEF - ADJUSTMENT OF STATUS - REFUGEE STATUS - WAIVER UNDER 209(C)
Robleto-Pastora v. Holder, 567 F.3d 437 (9th Cir. May 27, 2009) (LPR who was formerly an asylee may not seek to re-adjust under INA 209(b) with a waiver of inadmissibility under INA 209(c); LPRs must seek to re-adjust under INA 245, regardless of whether they were previously granted asylum), following similar cases in the context of former refugees, Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. 2006); Saintha v. Mukasey, 516 F.3d 234 (4th Cir. 2008); Matter of Smriko, 23 I. & N. Dec. 836 (BIA 2005), distinguishing Matter of KA, 23 I. & N. Dec. 661 (BIA 2004) (non-LPR asylee can seek INA 209 adjustment and waiver as defense to removal).

RELIEF - ADJUSTMENT OF STATUS - 245(i) DEADLINE NOT SUBJECT TO EQUITABLE TOLLING ON ACCOUNT OF INEFFECTIVE ASSISTANCE OF COUNSEL
Balam-Chuc v. Mukasey, 547 F.3d 1044. (9th Cir. Oct. 24, 2008) (April 30, 2001 filing deadline for adjustment of status under INA 245(i), which allows qualifying relatives of LPRs to apply more quickly for immigrant visas, is a statute of repose and thus not subject to equitable tolling for a claim of ineffective assistance of counsel).

RELIEF - ADJUSTMENT OF STATUS - JUDICIAL REVIEW
Hassan v. Chertoff, 543 F.3d 564 (9th Cir. Sept. 11, 2008) (noncitizen traveled outside United States on advance parole while adjustment application was pending; DHS denied application while noncitizen was outside the U.S.; noncitizen placed in expedited removal upon attempted return to U.S.; court lacks jurisdiction to review DHS denial of adjustment application and revocation of advance parole).

RELIEF - ADMUSTMENT OF STATUS - FRAUDULENT ENTRY HELD NOT AN ADMISSION, SO NONCITIZEN IS DISQUALIFIED FROM ADJUSTMENT OF STATUS -- AILF PRACTICE ADVISORY
New Practice Advisory, "Orozco v. Mukasey: Current Status of the Case and Preliminary Strategies" (May 19, 2008). This Practice Advisory discusses the holding in Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), its current status, and preliminary strategies and arguments - both within and outside of the Ninth Circuit - to avoid its negative impact. In Orozco, the Ninth Circuit held that a non-citizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA 245(a) because he or she has not been "admitted." http://www.ailf.org/lac/pa/orozco-pa.pdf.

RELIEF - ADJUSTMENT OF STATUS
Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Mar. 31, 2008) (persons who entered the United States under the Visa Waiver Program, who marry and apply for Adjustment of Status after their 90 days have elapsed, cannot obtain removal proceedings before being removed, and are ineligible to adjust status), distinguishing Freeman v. Gonzales, 1444 F.3d 1031 (9th Cir. 2006).

This may not prohibit AOS by all out-of-status VWP entrants. It might only apply to those that ICE finds and decides to deport. The last two paragraphs of the decision, discussing this, appear to be dictum, because they go beyond the facts presented, which involve a VWP overstay whom ICE found and wanted to deport, and who then raised a defense to removal in the form of AOS. The "no contest" clause in INA 217(b) applies when DHS seeks to remove a VWP violator. If DHS is not seeking removal, then a VWP overstay can adjust status under INA 245(c) as an immediate relative. Under Momeni, if AOS is denied, the person will then be removed instead of put in proceedings. Thanks to Debbie Smith.

RELIEF - ADJUSTMENT OF STATUS - FRAUDULENT ENTRY BARS ADJUSTMENT
Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. Mar. 25, 2008) (fraudulent entry into United States bars adjustment of status under 8 U.S.C. 1255(a)). See American Immigration Law Foundation, Practice Advisory, Orozco v. Mukasey: Current Status of the Case and Preliminary Strategies (May 19, 2008). http://www.ailf.org/lac/lac_pa_topics.shtml.

RELIEF - ADJUSTMENT OF STATUS
AILF has issued a new Practice Advisory that addresses Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), its current status, and preliminary strategies and arguments - both within and outside of the Ninth Circuit - to avoid its negative impact. In Orozco, the Ninth Circuit held that a non-citizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA 245(a) because he or she has not been "admitted." See http://www.ailf.org/lac/pa/orozco-pa.pdf

RELIEF - ADJUSTMENT OF STATUS - FRAUDULENT ENTRY & ADJUSTMENT
Orozco v. Mukasey, 521 F. 3d 1068 (9h Cir. 2008) (fraudulent entry into United States bars adjustment of status under 8 U.S.C. 1255(a)), has been vacated. Prior BIA decision, Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), is once again binding BIA precedent in the Ninth Circuit.

ADJUSTMENT OF STATUS - LIFE ACT
Duran-Gonzales v. Mukasey, 508 F.3d 1227 (9th Cir. Nov. 30, 2007) (barring adjustment of status under LIFE Act if noncitizen has been removed and illegally re-entered; rule applies even if I-212 petition for permission to re-enter following removal was filed prior to DHS filing to reinstate prior removal order), reversing Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), deferring to BIA decision Matter of Torres-Garcia, 23 I. N. Dec. 866 (BIA 2006) (holding plaintiffs ineligible as a matter of law to adjust their status because they are ineligible to receive I-212 waivers, because they have illegally re-entred the United States after removal, and have not yet been outside the United States for 10 years, as is required before seeking a waiver).

RELIEF - ADJUSTMENT OF STATUS
Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. Sept. 4, 2007) (noncitizens who are apprehended within the United States after illegal re-entry, who are detained by the DHS, and who are thereafter "conditional[ly] parole[d]," under INA 236(a)(2)(B); 8 U.S.C. 1226(a)(2)(B) are not "paroled into the United States" for purposes of being eligible for adjustment of status pursuant to 8 U.S.C. 1255(a)).

Note: The court distinguishes between two types of "parole" - humanitarian parole covered by INA 212(d)(5) and "conditional parole" on release from DHS detention, under INA 236(a). The court notes that INA 236(a)(2)(B) "focuses primarily on aliens who are present in the United States but were not lawfully admitted or who were lawfully admitted but have become subject to removal." A clearer way to express this might be that INA 236(a) relates to immigration detention, and thus 236(a)(2)(B) relates to release from detention on parole, just as a felon would be released from prison on parole.

While "parole" as described under INA 212(d)(5) may be spelled the same, and pronounced the same, it describes a different concept - i.e. being allowed to physically enter the United States without being officially "admitted." Thus persons who are granted "deferred inspection" fall within INA 212(d)(5). See 8 C.F.R. 235.2(c).

RELIEF - ADJUSTMENT OF STATUS - CHILD STATUS PROTECTION ACT
Ochoa-Amaya v. Gonzales, ___ F.3d ___, 2007 WL 851340 (9th Cir. Dec. 29, 2006) (adjustment of status properly denied where BIA correctly interpreted Child Status Protection Act in finding petitioner not to qualify as a child under the CSPA). http://caselaw.lp.findlaw.com/data2/circs/9th/0574693p.pdf

Note: Ochoa-Amaya v. Gonzales, __ F.3d ___ (9th Cir. March 22, 2007), amending jurisdictional language of prior decision, Ochoa-Amaya v. Gonzales, ___ F.3d ___, 2007 WL 851340 (9th Cir. Dec. 29, 2006) (adjustment of status properly denied where BIA correctly interpreted Child Status Protection Act in finding petitioner not to qualify as a child under the CSPA). http://caselaw.lp.findlaw.com/data2/circs/9th/0574693pv2.pdf

RELIEF - FAMILY UNITY PROGRAM - CANCELLATION OF REMOVAL - CONTINUOUS PRESENCE - FAMILY UNITY PROGRAM STATUS CONSTITUTES BEING ADMITTED IN ANY STATUS
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. Jul. 24, 2006) (BIA's determination that noncitizen's beneficiary status under family unity program does not render him "admitted in any status" for purposes of cancellation of removal was not entitled to Chevron deference, and was in error). http://caselaw.lp.findlaw.com/data2/circs/9th/0373930p.pdf

ADJUSTMENT OF STATUS - VISA WAIVER PROGRAM
Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. Apr. 21, 2006) (Bar to review of denial of benefits for those who entered United States via Visa Waiver Program does not apply to noncitizen who has filed an adjustment of status application as an immediate relative).
http://caselaw.lp.findlaw.com/data2/circs/9th/0435797p.pdf

RELIEF - ADJUSTMENT OF STATUS - ILLEGAL PRESENCE
Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (INA 212(a)(9)(C)(i)(I) does not bar adjustment of status under INA 245(i)); accord, Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. 2006) (INA 212(a)(9)(C)(i)(I) does not bar adjustment of status under INA 245(i)).

RELIEF - ADJUSTMENT OF STATUS - IMMIGRATION JUDGE MAY GRANT ADJUSTMENT IN REMOVAL PROCEEDINGS ONLY IF A VISA IS IMMEDIATELY AVAILABLE TO THE RESPONDENT
Carrillo-Gonzalez v. INS, 353 F.3d 1077 (9th Cir. December 31, 2003) (noncitizen was statutorily required to produce an immediately available immigrant visa before Immigration Judge could grant an adjustment of status), citing 8 U.S.C. 1255(i)(2)(B) (Attorney General may adjust a noncitizen's status if an "immigrant visa is immediately available to the alien at the time the application is filed").

Tenth Circuit

RELIEF - ADJUSTMENT OF STATUS
Herrera-Castillo v. Holder, 573 F.3d 1004 (10th Cir. Jul. 27, 2009) (inadmissibility for being unlawfully present in the United States for one year or more prevented adjustment of status, because 8 U.S.C. 1255(i) reasonably suggests that Congress considers aliens who accrue a period of unlawful presence more culpable than those immigration violators who do not, and thus that the former are less deserving of relief).

RELIEF - ADJUSTMENT OF STATUS - VISA WAIVER PROGRAM
Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. Aug. 8, 2006) (noncitizen who overstays authorized time under Visa Waiver Program and files for adjustment of status after he has overstayed, but before issuance of a removal order, has waived right to contest subsequent removal order through renewed application for adjustment of status, or to otherwise seek review of the previously filed adjustment of status).

RELIEF - LIFE ACT - APPLIES DESPITE BEING OUT OF STATUS
Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. Jun. 19, 2006) (INA 245(i) allows certain persons to adjust status even if they are inadmissible under INA 212(a)(9)(C)(i)(I) for having been unlawfully present in the United States for over one year). http://laws.lp.findlaw.com/10th/049573.html

Eleventh Circuit

RELIEF " ADJUSTMENT OF STATUS " FIVE-YEAR STATUTE OF LIMITATIONS
Alhuay v. U.S. Atty. Gen., 661 F.3d 534 (11th Cir. Oct. 26, 2011) (per curiam) (a removal order ends lawful permanent resident status, even if issued more than five years after the grant of LPR status, because INA 246(a), 8 U.S.C. 1256(a), bars rescission after five years, and does not bar issuance of a removal order on the basis that the grant of LPR status was based on misrepresentations); see Matter of Belenzo, 17 I. & N. Dec.374, 382 (BIA 1981); Matter of S, 9 I. & N. Dec. 548, 548 (Att'y Gen.1962)(the statute has no effect on the government's power to remove an alien no matter when that alien's status was erroneously adjusted); Stolaj v. Holder, 577 F.3d 651, 656 (6th Cir.2009) (By its own terms, 1256 places a time bar only on the Government's attempt to rescind the status of a lawful permanent resident, and does not apply to removal proceedings.); Kim v. Holder, 560 F.3d 833, 837 (8th Cir.2009) (On its face, 1256(a) only discusses the five-year statute of limitations in terms of rescinding a status adjustment ....); Asika v. Ashcroft, 362 F.3d 264, 269"71 (4th Cir.2004) (deferring to the Attorney General's interpretation that 1256 does not limit the government's power to remove an alien more than five years after an erroneous adjustment of status); Oloteo v. INS, 643 F.2d 679, 682"83 (9th Cir.1981) (Congress has seen fit to do away with statutes of limitation with regard to deportation proceedings, but in its wisdom has engrafted such a limit to the rescission of status proceeding alone. (footnote omitted)); but cf. Garcia v. Att'y Gen., 553 F.3d 724, 728 (3d Cir.2009) (the last sentence of 1256(a), added by amendment in 1996, did not limit the statute's reach to rescission of adjustment of status); Bamidele v. INS, 99 F.3d 557, 559 (3d Cir.1996) (holding that 1256(a) applies to removal proceedings and vacating a deportation order issued more than five years after the government discovered that the petitioner's marriage was fraudulent).

RELIEF - ADJUSTMENT OF STATUS - ARRIVING/PAROLED ALIENS U.S.
Scheerer v. U.S. Atty Gen., __ F.3d __, 2008 WL 131466 (11th Cir. Jan. 15, 2008) (upholding amended 8 C.F.R. 1245.2(a)(1), barring most arriving aliens from applying for adjustment of status before the IJ).

ADJUSTMENT OF STATUS - LIFE ACT - CONTINUANCE
Merchant v. US Atty Gen., 461 F.3d 1375 (11th Cir. Aug. 25, 2006) (IJ erred in denying motion for continuance where applicant for adjustment of status had met and fulfilled all requirements to adjust status under INA 245(i), but the USCIS had yet to approve the visa, since 8 C.F.R. 245.10(b)(2) requires only that noncitizen be eligible for visa; court contrasted this case from situation where noncitizen had not yet fulfilled all requirements) http://caselaw.lp.findlaw.com/data2/circs/11th/0513086p.pdf

ADJUSTMENT OF STATUS - MISTAKE BY DHS
Savoury v. United States Atty Gen., 449 F.3d 1307 (11th Cir. May 25, 2006) (noncitizen who was inadmissible at time of adjustment of status, but was allowed to adjust status by mistake, is not a noncitizen lawfully admitted to the United States for purposes of demonstrating eligibility for relief under former INA 212(c)). http://caselaw.lp.findlaw.com/data2/circs/11th/0510966p.pdf

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIEN - REGULATION PRECLUDING ADJUSTMENT FOR ARRIVING ALIENS HELD INVALID
Scheerer v. United States Atty Gen., 445 F.3d 1311 (11th Cir. Apr. 13, 2006) (8 C.F.R. 1245.1(c)(8), which prohibits petitioner from applying for change of status as an arriving alien in removal proceedings, is ultra vires to INA 245(a), and therefore invalid).
http://caselaw.lp.findlaw.com/data2/circs/11th/0416231p.pdf

BIA

ADJUSTMENT OF STATUS " ADAM WALSH ACT " NO CATEGORICAL ANALYSIS
Matter of Introcaso, 26 I. & N. Dec. 304 (BIA May 20, 2014) (petitioner bears the burden of proving whether an offense is specified offense against a minor; the categorical approach does not apply to this determination, and DHS can look into the underlying facts of a conviction, even where the elements of the criminal statute would not have supported a finding of ineligibility).

Other

ADJUSTMENT OF STATUS " ADVANCED PAROLE
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_arrabally.pdf Nov. 20, 2014 DHS Memorandum " departure on advanced parole is not a departure for purposes of INA 212(a)(9)(C)(i).

RELIEF"ADJUSTMENT OF STATUS"INA 245(i)
Matter of Lemus, 25 I. & N. Dec. 734 (BIA Mar. 19, 2012) (adjustment of status under INA 245(i), 8 U.S.C. 1255(i), is unavailable to an alien who is inadmissible under INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II), absent a waiver); clarifying Matter of Lemus, 24 I. & N. Dec. 373 (BIA 2007). Note: There is one very positive aspect of this decision, namely that the case was remanded to the IJ because ten years has, after years of litigation, now passed since Mr. Lemus departed the United States. This means that it may be possible to re-file these applications for admission under INA 245(i) on remand to the IJ if it has been more than 10 years since the date of the last departure (and/or the person now qualifies for a waiver under INA 212(a)(9)(B)(v)). In addition, on remand, re-opening, or re-filing, the applicant may also be eligible now to apply for non-LPR cancellation of removal which may be granted even if the application is inadmissible under INA 212(a)(9). Thanks to Dan Kesselbrenner.

ADJUSTMENT OF STATUS"CONDITIONAL PERMANENT RESIDENCE" TOLLING OF TIME PERIOD"ACTIVE-DUTY SERVICE PERSONNEL
New INA 216(g), Pub.L. 112-58, Nov. 23, 2011, 125 Stat. 747 (adding 216(g) to toll time periods for filing a petition and appearing for an interview to remove the condition from permanent resident status during periods in which Armed Forces members are on active-duty serving abroad). Former INA 216(g) was redesignated as INA 216(h).

ADJUSTMENT OF STATUS - ARRIVING ALIENS
"Arriving Aliens" and Adjustment of Status: What is the Impact of the Governments Interim Rule of May 12, 2006 (Updated November 5, 2008). http://www.ailf.org/lac/pa/lac_pa_070416_biaarraliens.pdf

RELIEF - ADJUSTMENT OF STATUS
New AILF practice advisory: CIS Adjustment of Status of "Arriving Aliens" with an Unexecuted Final Order of Removal (March 8, 2007), at http://www.ailf.org/lac/lac_pa_060308_arraliens.pdf.

RELIEF - ADJUSTMENT OF STATUS
AILIF Practice Advisory: USCIS Adjustment of Status of "Arriving Aliens" with an unexpected final order of removal (March 8, 2007). http://www.ailf.org/lac/lac_pa_060308_arraliens.pdf

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIENS
January 12, 2007 USCIS Interoffice Memo provides guidance on the May 12, 2006 Interim Rule allowing paroled arriving aliens in removal proceedings to apply for adjustment of status. AILA InfoNet document #07030661 http://www.aila.org/content/default.aspx?docid=21806

RELIEF - ADJUSTMENT OF STATUS
New Article:
Applying for Adjustment of Status After Reentering the United States Without Being Admitted: I-212s, 245(i) and VAWA 2005 AILF Legal Action Center Practice Advisory, Updated Oct. 19, 2006. This Practice Advisory addresses inadmissibility for individuals who reenter the U.S. without admission and provides strategies for those individuals with adjustment of status applications under 245(i). The Advisory suggests arguments for challenging the BIA's decision Matter of Torres-Garcia and explains how VAWA 2005 can help.
http://www.ailf.org/lac/vawa_2005.pdf

RELIEF - ADJUSTMENT OF STATUS
New Article:
"Arriving Aliens and Adjustment of Status: What is the Impact of the Governments Interim Rule of May 12, 2006" (Updated October 3, 2006). This practice advisory discusses the impact of an interim rule repealing two former regulations which barred all 'arriving aliens' - including parolees - from adjusting to permanent resident status if they were in removal proceedings and suggests steps that a parolee can take to benefit from the interim rule. AILF.org.
http://www.ailf.org/lac/ar_alien.pdf

RELIEF - ADJUSTMENT OF STATUS - NO PETITIONS ALLOWED TO BE FILED BY CERTAIN SEX OFFENDERS
[Thanks to Stacy Tolchin] President Bush, on 7/27/06, signed into law the Adam Walsh Child Protection and Safety Act of 2006 (H.R. 4472; PL 109-248). Drafted to strengthen penalties against child predators, the Act also bars convicted sex offenders from having family-based petitions approved and makes failure to register as a sex offender a deportable offense. Specifically, section 402 bars all U.S. citizens and permanent residents convicted of a specified offense against a minor (as defined in section 111 of the Act) from ever petitioning for any family member (spouse, children, parents, siblings, fiances) for permanent residency. The only circumstance for waiving this bar is if the Secretary of Homeland Security, in his sole and unreviewable discretion, determines that the U.S. citizen or permanent resident poses no risk to the family member seeking permanent residency.

H.R.4472
Adam Walsh Child Protection and Safety Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)

---

TITLE IV--IMMIGRATION LAW REFORMS TO PREVENT SEX OFFENDERS FROM ABUSING CHILDREN

SEC. 401. FAILURE TO REGISTER A DEPORTABLE OFFENSE. Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A)) is amended-- (1) by redesignating clause (v) as clause (vi); and (2) by inserting after clause (iv) the following new clause: `(v) FAILURE TO REGISTER AS A SEX OFFENDER- Any alien who is convicted under section 2250 of title 18, United States Code, is deportable.'.
SEC. 402. BARRING CONVICTED SEX OFFENDERS FROM HAVING FAMILY-BASED PETITIONS APPROVED. (a) Immigrant Family Members- Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), is amended--
(1) in subparagraph (A)(i), by striking `Any' and inserting `Except as provided in clause (viii), any';
(2) in subparagraph (A), by inserting after clause (vii) the following: `(viii)(I) Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed. `(II) For purposes of subclause (I), the term `specified offense against a minor' is defined as in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.'; and
(3) in subparagraph (B)(i)--
(A) by striking `(B)(i) Any alien' and inserting the following: `(B)(i)(I) Except as provided in subclause (II), any alien'; and
(B) by adding at the end the following:
`(I) Subclause (I) shall not apply in the case of an alien lawfully admitted for permanent residence who has been convicted of a specified offense against a minor (as defined in subparagraph (A)(viii)(II)), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that such person poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.'.
(b) Nonimmigrants- Section 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)), is amended by inserting `(other than a citizen described in section 204(a)(1)(A)(viii)
(I))' after `citizen of the United States' each place that phrase appears.

Subtitle A--Sex Offender Registration and Notification

SEC. 111. RELEVANT DEFINITIONS, INCLUDING AMIE ZYLA EXPANSION OF SEX OFFENDER DEFINITION AND EXPANDED INCLUSION OF CHILD PREDATORS. In this title the following definitions apply:
(1) SEX OFFENDER- The term `sex offender' means an individual who was convicted of a sex offense.
(2) TIER I SEX OFFENDER- The term `tier I sex offender' means a sex offender other than a tier II or tier III sex offender.
(3) TIER II SEX OFFENDER- The term `tier II sex offender' means a sex offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and--
(A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:
(i) sex trafficking (as described in section 1591 of title 18, United States Code);
(ii) coercion and enticement (as described in section 2422(b) of title 18, United States Code);
(iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a)) of title 18, United States Code;
(iv) abusive sexual contact (as described in section 2244 of title 18, United States Code);
(B) involves--
(i) use of a minor in a sexual performance;
(ii) solicitation of a minor to practice prostitution; or
(iii) production or distribution of child pornography; or
(C) occurs after the offender becomes a tier I sex offender. (4) TIER III SEX OFFENDER- The term `tier III sex offender' means a sex offender whose offense is punishable by imprisonment for more than 1 year and--
(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18, United States Code); or
(ii) abusive sexual contact (as described in section 2244 of title 18, United States Code) against a minor who has not attained the age of 13 years;
(B) involves kidnapping of a minor (unless committed by a parent or guardian); or
(C) occurs after the offender becomes a tier II sex offender.
(5) AMIE ZYLA EXPANSION OF SEX OFFENSE DEFINITION-
(A) GENERALLY- Except as limited by subparagraph (B) or (C), the term `sex offense' means--
(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18, United States Code) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of title 18, United States Code;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
(B) FOREIGN CONVICTIONS- A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.
(C) OFFENSES INVOLVING CONSENSUAL SEXUAL CONDUCT- An offense involving consensual sexual conduct is not a sex offense for the purposes of this title if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.
(6) CRIMINAL OFFENSE- The term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense.
(7) EXPANSION OF DEFINITION OF `SPECIFIED OFFENSE AGAINST A MINOR' TO INCLUDE ALL OFFENSES BY CHILD PREDATORS- The term `specified offense against a minor' means an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping. (B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
(8) CONVICTED AS INCLUDING CERTAIN JUVENILE ADJUDICATIONS- The term `convicted' or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.
(9) SEX OFFENDER REGISTRY- The term `sex offender registry' means a registry of sex offenders, and a notification program, maintained by a jurisdiction.
(10) JURISDICTION- The term `jurisdiction' means any of the following:
(A) A State.
(B) The District of Columbia.
(C) The Commonwealth of Puerto Rico.
(D) Guam.
(E) American Samoa.
(F) The Northern Mariana Islands.
(G) The United States Virgin Islands.
(H) To the extent provided and subject to the requirements of section 127, a federally recognized Indian tribe.
(11) STUDENT- The term `student' means an individual who enrolls in or attends an educational institution, including (whether public or private) a secondary school, trade or professional school, and institution of higher education.
(12) EMPLOYEE- The term `employee' includes an individual who is self-employed or works for any other entity, whether compensated or not.
(13) RESIDES- The term `resides' means, with respect to an individual, the location of the individual's home or other place where the individual habitually lives.
(14) MINOR- The term `minor' means an individual who has not attained the age of 18 years.

RELIEF - ADJUSTMENT OF STATUS
ALIF-ASISTA Practice Advisory on applying for AOS after re-entering the U.S. without admission using I-212s, 245(i) and VAWA 2005 available at: http://www.ailf.org/lac/lac_pa_060606.pdf

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIENS NOW ELIGIBLE TO APPLY FOR AOS UNDER INTERIM RULE
"Arriving aliens" in removal proceedings are now eligible to apply for adjustment with USCIS under the interim rule. 71 Fed. Reg. 27585 (May 12, 2006). The interim rule, effective on May 12, 2006, deleted the absolute bar on an "arriving alien's" ability to adjust status in removal proceedings. Prior to the issuance of the interim rule, several courts of appeals had struck down the former regulation barring adjustment, finding that it violated the statute. For more information about the rule and the litigation that prompted it, see AILFs Practice Advisory, "Arriving Alien" and Adjustment of Status: What is the Impact of the Governments Interim Rule of May 12, 2006? (Updated October 3, 2006) available at http://www.ailf.org/lac/lac_pa_chrono.shtml.

RELIEF - ADJUSTMENT OF STATUS - ADAM WALSH ACT
DOS Cable Implementing Section 402 of the Adam Walsh Child Protection And Safety Act Of 2006 (P.L. 109-248), available at AILA InfoNet Doc. No. 07012564 (posted Jan. 25, 2007).

RELIEF - ADJUSTMENT OF STATUS - PRE-JAN 1, 2982 ENTRANTS
Northwest Immigrant Rights Project v. USCIS settlement announced: "The application period will be open for one year for individuals who meet very specific criteria, including entering the United States on a nonimmigrant visa prior to January 1, 1982. The application period will commence on February 1, 2009 and end on January 31, 2010. Application instructions are contained in the settlement agreement." http://www.uscis.gov/files/article/order_final_judgment_3nov08.pdf

INADMISSIBILITY - ARRIVING ALIEN - ADJUSTMENT OF STATUS
"Arriving Alien" and Adjustment of Status Litigation Issue Page. AILF has updated its "Arriving Alien" and Adjustment of Status Litigation Issue Page. This page provides information about developments relating to the ability of an "arriving alien" in removal proceeding to adjust status. It includes summaries of circuit court decisions and links to AILFs Practice Advisories on this issue. http://www.ailf.org/lac/clearinghouse_102306.shtml

ADJUSTMENT OF STATUS - "ARRIVING ALIENS"
See Legal Action Center Litigation Issue Page summarizing litigation regarding the government's interim rule allowing USCIS to adjudicate the adjustment application of "arriving aliens" in removal proceedings. It provides links to selected pleadings and other related resources. AILA Doc. No. 10080969.

ADAM WALSH ACT RESOURCES
http://www.fd.org/odstb_AdamWalsh.htm http://www.aila.org/content/default.aspx?docid=32480 http://www.uscis.gov/files/pressrelease/AdamWalshAct020807.pdf http://www.fd.org/odstb_AdamWalsh.htm

RELIEF " ADJUSTMENT OF STATUS " VISA WAIVER PROGRAM
8 CFR 245.1(b)(8) (a Visa Waiver Program entrant can adjust status via an immediate relative).

ADJUSTMENT OF STATUS " VISA WAIVER PROGRAM
8 CFR 245.1(b)(8) states that VWP entrants can adjust if the adjustment is through an immediate relative.