Criminal Defense of Immigrants

(D)  Arriving Aliens.  Prior to 1997, noncitizens in exclusion proceedings were allowed to apply for adjustment of status before an Immigration Judge.[1]  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”[2]).[3]  The courts became split, with the First, Third and Eleventh Circuits holding that the regulation was ultra vires to the statute,[4] the Ninth Circuit appearing to agree, at least as applied to people making an initial application to adjust,[5] and the Fifth and Eighth Circuits holding the regulation valid.[6]  The BIA itself suggested that certain “arriving aliens” were eligible to adjust status despite the regulation.[7]  In response to the circuit split, and a pending appeal to the United States Supreme Court, the DHS chose to amend the regulations to resolve the split in favor of allowing certain “arriving aliens” to adjust status while in inadmissibility proceedings.[8]

The courts are split as to whether a noncitizen who entered under the Visa Waiver Program,[9] overstayed, and then applied for adjustment of status, continue to be restricted by the restraints placed upon entrants under that program.[10]

[1] Matter of CH, 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).

[2] 8 C.F.R. § 1101.1(q).  See § 15.3, supra.

[3] 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).

[4] Scheerer v. United States Att’y 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); 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)).

[5] 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.

[6] 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); Momin v. Gonzales, 447 F.3d 447 (5th Cir. Apr. 25, 2005); Mouelle v. Gonzalez, 416 F.3d 923 (8th Cir. July 29, 2005).

[7] 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.

[8] Mouelle v. Gonzales, 126 S.Ct. 2964 (Mem.) (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).  See AILA Practice Advisory, Arriving Aliens and Adjustment of Status: What is the Impact of the Government’s Interim Rule of May 12, 2006 (Updated October 3, 2006).  http://www.ailf.org/lac/ar_alien.pdf.

[9] See § 15.3, supra.

[10] Compare 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), with 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).