Cite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
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Matter of Jose S. MARTINEZ-MONTALVO, Respondent
File A097 309 445 – Miami, Florida
Decided April 20, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), 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. Matter of Artigas, 23 I&N Dec. 99 (BIA
2001), superseded.
FOR RESPONDENT: Tal Winer, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Weisholtz, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, PAULEY, and HESS, Board Members.
PAULEY, Board Member:
In a decision dated May 14, 2007, an Immigration Judge found the
respondent removable and granted his application for adjustment of status
under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No.
89-732, 80 Stat. 1161 (“Cuban Adjustment Act”). The Department of
Homeland Security (“DHS”) has appealed from that decision. The appeal will
be sustained, the decision of the Immigration Judge will be vacated, and the
record will be remanded for further proceedings.
The respondent, who is a native and citizen of Cuba, is an arriving alien. In
removal proceedings before the Immigration Judge, he applied for adjustment
of status, which the Immigration Judge granted, noting his jurisdiction to
adjudicate the application and citing our decision in Matter of Artigas,
23 I&N Dec. 99 (BIA 2001). On appeal, the DHS argues that Immigration
Judges do not have such jurisdiction after the publication of an interim rule inCite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
1 These regulations were identical and provided that “[a]ny arriving alien who is in removal
proceedings” is included within the category of aliens who are ineligible to apply for
adjustment of status.
2 The current regulation at 8 C.F.R. § 245.2(a)(1) provides as follows:
USCIS has jurisdiction to adjudicate an application for adjustment of status filed by
any alien, unless the immigration judge has jurisdiction to adjudicate the application
under 8 C.F.R. § 1245.2(a)(1).
(Emphasis added.) The regulations at 8 C.F.R. §§ 1245.2(a)(1) provide, in pertinent part,
as follows:
(i) In General. In the case of any alien who has been placed in deportation
proceedings or in removal proceedings (other than as an arriving alien), the
immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any
application for adjustment of status the alien may file.
(ii) Arriving aliens. In the case of an arriving alien who is placed in removal
proceedings, the immigration judge does not have jurisdiction to adjudicate any
application for adjustment of status filed by the arriving alien . . . .”).
(Emphasis added.)
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2006 that repealed 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) (2006)1
and
amended 8 C.F.R. §§ 245.2 and 1245.2 (2006), which set forth the rules
regarding jurisdiction over adjustment applications. See Eligibility of Arriving
Aliens in Removal Proceedings To Apply for Adjustment of Status and
Jurisdiction To Adjudicate Applications for Adjustment of Status,71 Fed. Reg.
27,585 (May 12, 2006); see also 8 C.F.R. §§ 245.2 and 1245.2 (2008).2
We
agree with the DHS, because the rationale underlying our decision in Matter
of Artigas is no longer viable in light of the amendments to the governing
regulations.
We find it helpful to set forth the history underlying the question
presented in this case, as explained in the Supplementary Information to the
May 12, 2006, interim rule. 71 Fed. Reg. at 27,586-88; see also Matter of
Artigas, supra, at 101-04. Before the enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.
104-208, 110 Stat. 3009-546 (“IIRIRA”), aliens who had entered the United
States and were subject to deportation proceedings could file an application for
adjustment of status with an Immigration Judge. See 71 Fed. Reg. at 27,586.
However, this form of relief was generally unavailable to aliens seeking to
enter the United States who were placed in exclusion proceedings asCite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
3 The functions of the Immigration and Naturalization Service were transferred to
the Department of Homeland Security pursuant to the Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135. The transfer occurred on March 1, 2003. See Matter
of D-J-, 23 I&N Dec. 572, 573 n.1 (A.G. 2003).
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inadmissible aliens. Id. The former Immigration and Naturalization Service3
generally had exclusive jurisdiction over an adjustment of status application
filed by a paroled alien in exclusion proceedings, and the alien was unable to
file or renew the application before an Immigration Judge. Id.
When the IIRIRA was enacted in 1996, deportation and exclusion
proceedings were replaced by a single “removal” proceeding, but the
distinction remained between aliens who have been admitted and those seeking
admission, i.e., arriving aliens. Id. Implementing the IIRIRA, the Attorney
General sought to continue the traditional rule that an applicant for admission
who has been placed in proceedings before an Immigration Judge generally
may not seek adjustment of status as a form of relief from removal. Id. at
27,587. Therefore, in 1997 the Attorney General established a rule, which was
then codified at 8 C.F.R. § 245.1(c)(8)—and was subsequently included in the
regulations at 8 C.F.R. § 1245.1(c)(8) in 2003—providing that an arriving
alien placed in removal proceedings was ineligible for adjustment of status.
Id. (citing Inspection and Expedited Removal of Aliens; Detention and
Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures,
62 Fed. Reg. 10,312, 10,326-27 (Mar. 6, 1997)); see also supra note 1.
At the same time, a regulation regarding jurisdiction over adjustment of
status applications was promulgated. See 62 Fed. Reg. at 10,383. That
regulation was codified at 8 C.F.R. § 245.2(a)(1) (1998) and provided in
pertinent part as follows:
Jurisdiction. An alien who believes he or she meets the eligibility requirements
of section 245 of the Act or section 1 of the [Cuban Adjustment Act] and § 245.1 shall
apply to the director having jurisdiction over his or her place of residence unless
otherwise instructed in 8 C.F.R. part 245, or by the instruction on the application
form. After an alien, other than an arriving alien, is in deportation or removal
proceedings, his or her application for adjustment of status under section 245 of the
Act or section 1 of the [Cuban Adjustment Act] shall be made and considered only in
those proceedings. An arriving alien, other than an alien in removal proceedings,
who believes he or she meets the eligibility requirements of section 245 of the Act or
section 1 of the [Cuban Adjustment Act] and § 245.1 shall apply to the director having
jurisdiction over his or her place of arrival.
(Emphasis added.) The regulation also created one exception to this
jurisdictional rule for certain aliens who had applied for adjustment of status
while in the United States, traveled abroad, and returned pursuant to a grant of
advance parole, and whose adjustment application had subsequently beenCite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
4 At that time, 8 C.F.R. § 240.11(a)(1) provided in pertinent part as follows:
In a removal proceeding, an alien may apply to the immigration judge for . . .
adjustment of status under section 1 of the Act of November 2, 1966 (as modified by
section 606 of Pub. L. No. 104-208) . . . . The application shall be subject to the
requirements of § 240.20, and 8 C.F.R. parts 245 and 249.
This regulation was subsequently amended and redesignated as 8 C.F.R. § 1240.11(a)(1) in
2003.
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denied by the district director. 8 C.F.R. § 245.2(a)(1)(i)-(ii). Only aliens
applying for adjustment in these limited circumstances could renew an
application in removal proceedings.
In Matter of Artigas, supra, the Government argued that the jurisdictional
regulation at 8 C.F.R. § 245.2(a)(1), in conjunction with the ineligibility
provision in 8 C.F.R. § 245.1(c)(8), precluded arriving aliens placed in
removal proceedings from pursuing adjustment of status under the Cuban
Adjustment Act. We rejected this position, holding that an Immigration Judge
has jurisdiction to adjudicate an application for adjustment of status under the
Cuban Adjustment Act in removal proceedings when a Cuban alien has been
charged as an arriving alien without a valid visa or entry document. In
reaching this conclusion, we noted that once removal proceedings were
commenced, an arriving alien was effectively precluded from submitting an
application for relief under the Cuban Adjustment Act to the district director,
because at that time the regulations specifically provided that “‘[a]n arriving
alien, other than an alien in removal proceedings, who believes he or she
meets the eligibility requirements of section 245 of the Act or section 1 of the
Act of November 2, 1966, and § 245.1 shall apply to the [district] director
having jurisdiction over his or her place of arrival.’” Id. at 105 (quoting
8 C.F.R. § 245.2(a)(1)). Thus, we held that if the regulations were found to
implicitly deprive an Immigration Judge of jurisdiction to consider
applications for adjustment of status under the Cuban Adjustment Act by
arriving aliens, that statutory form of relief would have effectively become
meaningless. Id.
To avoid this result, we concluded that Immigration Judges were granted
jurisdiction, because the regulations specifically provided authority for
arriving aliens to file an application for relief pursuant to the Cuban
Adjustment Act. Id. at 103 (citing 8 C.F.R. §§ 240.11(a)(1)4
and 245.2(a)(1)
(2001)). We found no evidence that the Attorney General intended the
post-IIRIRA amendments to the adjustment of status regulations to withdraw
by implication the Immigration Judges’ jurisdiction to adjudicate such
applications for relief, over which they previously had exclusive jurisdiction.
Id. at 103-04. Furthermore, because the Cuban Adjustment Act is a specificCite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
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grant of authority to adjust the status of Cubans who could not fulfill the
requirements of section 245 of the Act, 8 U.S.C. § 1255 (1994 & Supp. V
1999), we determined that it must be considered separate and apart from
adjustment of status under section 245. Id. at 106. Accordingly, we held that
arriving aliens placed in removal proceedings could seek adjustment of status
under the Cuban Adjustment Act before an Immigration Judge.
After the issuance of Matter of Artigas, supra, and prior to the 2006
regulatory amendments relied on by the DHS in support of this appeal, some
courts of appeals held that 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) were
ultra vires under section 245(a) of the Act, which permits an application for
discretionary adjustment of status by any alien who was “inspected and
admitted or paroled.” Scheerer v. U.S. Att’y Gen., 445 F.3d 1311 (11th Cir.
2006); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Zheng v. Gonzales,
422 F.3d 98 (3d Cir. 2005); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005).
However, other courts held that the regulations constituted a valid exercise
of the respective discretionary authority of the Attorney General and the
Secretary of the DHS to grant or deny adjustment of status, even as applied to
arriving aliens seeking adjustment of status in removal proceedings who were
paroled into the United States. Momin v. Gonzales, 447 F.3d 447, reh’g
granted and opinion vacated, 462 F.3d 497 (5th Cir. 2006); Mouelle
v. Gonzales, 416 F.3d 923 (8th Cir. 2005), cert. granted and judgment vacated,
548 U.S. 901 (2006).
In light of this split of authority, the Attorney General and the Secretary of
the DHS amended the regulations in 2006 to eliminate 8 C.F.R. §§ 245.1(c)(8)
and 1245.1(c)(8) to avoid inconsistent application of the adjustment of status
laws. See 71 Fed. Reg. at 27,587 (Supplementary Information). The
regulations at 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1) were also amended to
clarify which Departmental component has jurisdiction to adjudicate
adjustment applications for arriving aliens who have been paroled into the
United States and placed in removal proceedings. Id. The new regulations at
8 C.F.R. § 245.2(a)(1) thus provide that the United States Citizenship and
Immigration Services (“USCIS”) generally has exclusive jurisdiction to
adjudicate adjustment applications of arriving aliens. The only exception to
this rule arises when an alien who leaves the United States while an
adjustment application is pending with the USCIS returns pursuant to a
grant of advance parole and is placed in removal proceedings. 8 C.F.R.
§§ 1245.2(a)(1)(ii)(A)-(D). In such circumstances, an Immigration Judge
would have jurisdiction to adjudicate the alien’s renewed adjustment
application in removal proceedings if the application has been denied by the
USCIS. Id.; see also 71 Fed. Reg. at 27,587-88 (Supplementary Information).
As a result of these amendments, the DHS contends that Immigration Judges
no longer have jurisdiction in removal proceedings to consider adjustment ofCite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
783
status applications filed by arriving aliens who are seeking benefits under the
Cuban Adjustment Act. The DHS argues that our concern in Matter of
Artigas, supra, with preserving such relief in removal proceedings for arriving
Cuban aliens has now been resolved with the 2006 amendments to 8 C.F.R.
§§ 245.2(a)(1) and 1245.2(a)(1). In the DHS’s view, the regulations have
effectively superseded Matter of Artigas by conferring on the USCIS
jurisdiction over an application for adjustment of status filed by “any” alien,
and by eliminating the jurisdiction of Immigration Judges over “any”
adjustment application filed by an arriving alien, with the above-noted limited
exception.
We agree with the DHS’s argument. The language of the new regulatory
scheme is clearer than that of the former regulations, which made only an
oblique reference to an Immigration Judge’s jurisdiction over arriving aliens
seeking adjustment under the Cuban Adjustment Act. Furthermore, if the
Attorney General had intended to exempt Cuban Adjustment Act cases from
the new regulatory scheme, it would have been a simple matter to include such
an exception in the regulations. Now that the amended regulations assure that
arriving aliens who are eligible for relief under the Cuban Adjustment Act can
file an adjustment application with the USCIS, we see no reason not to afford
the term “any” its full and natural meaning. See Ali v. Federal Bureau of
Prisons, 128 S. Ct. 831, 835-36 (2008) (broadly construing the term “any”).
See generally K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92 (1988);
Matter of N-B-, 22 I&N Dec. 590, 592 (BIA 1999) (regarding the rules of
statutory and regulatory construction). In other words, there is no longer a
need to ascribe a different meaning to the regulatory language to avoid
depriving all arriving aliens seeking relief under the Cuban Adjustment Act in
removal proceedings of a statutory avenue to adjust their immigration status.
Although adjustment under that statute is considered “separate and apart from
adjustment of status under section 245 of the Act,” Matter of Artigas, supra,
at 106, the intent of Congress in enacting the Cuban Adjustment Act is still
honored, because arriving aliens may now seek this form of relief before the
USCIS, whether or not they are in removal proceedings, and whether or not
they are under an order of removal.
Accordingly, we will sustain the DHS’s appeal and vacate the Immigration
Judge’s decision granting the respondent’s application for adjustment of status
under the Cuban Adjustment Act for lack of jurisdiction. The respondent may
now elect to file an application with the USCIS. The record will be remanded
to the Immigration Judge to give the respondent an opportunity to pursue any
other relief from removal for which he may be eligible.
ORDER: The appeal of the Department of Homeland Security is sustained,
and the decision of the Immigration Judge is vacated.Cite as 24 I&N Dec. 778 (BIA 2009) Interim Decision #3639
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FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.