§ 3.2 II. Adjustment of Status
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One conviction for a crime of moral turpitude, not falling within the Petty Offense, Political Offense, or Youthful Offender Exception, will give rise to inadmissibility. A noncitizen who committed more than one crime of moral turpitude is ineligible for the Petty Offense or Youthful Offender Exception, and therefore must obtain a waiver of inadmissibility under INA § 212(h) before s/he will be allowed to obtain adjustment of status.
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. Any noncitizen who is eligible to adjust, is not inadmissible, and has an immigrant visa immediately available may be allowed to adjust.
It is also possible to obtain lawful permanent resident status by travelling outside the United States through “consular processing.” See § 3.7, infra. Immediate relatives can immigrate rapidly, since they may file the immigrant petition and the adjustment of status application simultaneously. Those subject to the preference quota system 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 DHS.
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. If granted, the renewed adjustment of status will be a complete defense to removal.
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. However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status. Nor, generally, is a noncitizen who has been in the United States illegally for over one year. A noncitizen who has re-entered illegally following removal is generally also ineligible. A pending application for adjustment of status does not itself confer any legal status.
While adjustment of status is not per se precluded for someone even with a serious criminal record, a person who falls within a ground of inadmissibility cannot obtain adjustment of status unless a waiver is granted. At least two courts have held that an adjustment granted through a mistake on the part of the DHS, where the noncitizen was inadmissible, cannot confer lawful permanent resident status. 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 § § 3.43-3.45, infra.
One conviction for a crime of moral turpitude, not falling within the Petty Offense, Political Offense, or Youthful Offender Exception, will give rise to inadmissibility. See § § 4.5-4.7, supra. A noncitizen convicted of multiple crimes of moral turpitude is ineligible for the Petty Offense or Youthful Offender Exception, and therefore must obtain a waiver of inadmissibility under INA § 212(h) before s/he will be allowed to obtain adjustment of status. See § 3.44, infra.
On July 27, 2006, a new law was passed that bars all United States citizens and permanent residents convicted, as adults, of certain sex offenses committed against minors from petitioning for any family member to become a lawful permanent resident. A waiver of this bar is available only if the DHS determines that the petitioner poses no risk to the person seeking LPR status.
Adjustment of status is handled somewhat differently for noncitizens who are asylees or refugees. A detailed discussion of this form of adjustment is beyond the scope of this book. However, a special criminal waiver allowed for asylees and refugees seeking to adjust status is discussed at § 3.30, infra.
For further discussion, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.2 (4th Ed. 2007).
 INA § 245, 8 U.S.C. § 1255; 8 C.F.R. § § 245.1-245.22, 1245.1-1245.22.
 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).
 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).
 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 online at http://travel.state.gov (select the Visa section, which contains the Visa Bulletin).
 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).
 Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).
 INA § 245(i), 8 U.S.C. § 1255(i). See AILF Legal Action Center Practice Advisory, Applying for Adjustment of Status After Reentering the United States Without Being Admitted: I-212s, 245(i) and VAWA 2005 (Updated Oct. 19, 2006). http://www.ailf.org/lac/vawa_2005.pdf
 Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. Jan. 12, 2005) (the reinstatement statute, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), 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). See also Lino v. Gonzales. 467 F.3d 1077 (7th Cir. Nov. 6, 2006) (INA § 241(a)(5), 8 U.S.C. § 1231(a)(5)) precludes a previously removed noncitizen who has since illegally re-entered the United States from adjusting status under INA § 245(i), 8 U.S.C. § 1255(i), and petitioner does not fall within any exception to this statute).
 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)).
 See, e.g., Delgado v. Mukasey, 508 F.3d 702 (2d Cir. Feb. 7, 2008) (noncitizen inadmissible for illegal reentry after deportation, under INA § 212(a)(9)(C), is ineligible to adjust status under the 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-entered the United States after removal, and have not yet been outside the United States for 10 years, as is required before seeking a waiver). See also 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)); 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 Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. Oct. 18, 2005), amended and superseded, 453 F.3d 1237 (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).
 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 country does not alter the initial unlawfulness of his immigration status).
 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).
 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 § 3.36, 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).
 Savoury v. United States Att’y Gen., 449 F.3d 1307 (11th Cir. May 25, 2006) (for purposes of qualifying for relief under former INA § 212(c)); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where DHS erroneously granted LPR status to noncitizen who had prior controlled substance/aggravated felony conviction, noncitizen was ineligible for INA § 212(c) relief in removal proceedings).
 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).
 Adam Walsh Child Protection and Safety Act of 2006, PL 109-248 (effective July 27, 2006). See 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).
 As defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.
 New INA § 204(a)(1), 8 U.S.C. § 1154(a)(1).
 See INA § 209, 8 U.S.C. § 1159.
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).
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 - 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 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).
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.")
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).
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 " 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 " 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 " WAIVERS " CANCELLATION OF REMOVAL " WEIGHT OF HARDSHIP FACTORS NONREVIEWABLE
Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. Oct. 5, 2011) (court lacks jurisdiction to review weight attached by Immigration Judge to hardship evidence relating to cancellation of removal; this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner's case and those of precedential decisions).
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
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 - 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).
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 - 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 - 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.
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).
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).
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 - 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.