Cite as 25 I&N Dec. 89 (BIA 2009) Interim Decision #3656
1 The DHS commenced removal proceedings against the respondent, his wife, and their two
children. During the course of the proceedings the Immigration Judge granted the
respondent’s wife and children adjustment of status. The only issue litigated was whether
the respondent was eligible for adjustment of status. Accordingly, the DHS has only
appealed the Immigration Judge’s order regarding this respondent.
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Matter of Binsar SILITONGA, Respondent
File A072 244 428 – Los Angeles, California
Decided October 8, 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) (2009), Immigration Judges have
no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment
of status, 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.
FOR RESPONDENT: Kathleen S. Koh, Esquire, Whittier, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sylvie C. Khayat, Assistant
Chief Counsel
BEFORE: Board Panel: MILLER, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated February 24, 2006, an Immigration Judge found the
respondent subject to removal and granted his application for adjustment
of status. The Department of Homeland Security (“DHS”) has appealed from
that decision.1
The appeal will be sustained and the record will be remanded
to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The DHS initially charged that the respondent, who was admitted
to the United States on or about November 23, 1989, was removable
as a nonimmigrant who remained in the United States beyond the period
allowed. At a hearing on March 12, 2004, the respondent admitted the factualCite as 25 I&N Dec. 89 (BIA 2009) Interim Decision #3656
2
At the time of this hearing the respondent’s wife was the beneficiary of a new
employment-based visa petition filed by a different employer. Her adjustment of status
request was grandfathered by section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006).
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allegations, conceded removability, and advised the Immigration Judge of his
intention to apply for adjustment of status. The respondent’s wife had
a pending Immigrant Petition for Alien Worker (Form I-140), which was
subsequently approved, and at a hearing on March 28, 2005, the respondent
and his family members submitted their adjustment of status applications.
At the same hearing, the DHS withdrew certain of the allegations and the
charges against the respondent and alleged instead that he was paroled into the
United States on or about November 23, 1999, to pursue a previously filed
adjustment application, which was denied on January 9, 2003. The
respondent was charged with inadmissibility pursuant to section 212(a)(7)(A)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A) (2000).
At a subsequent hearing on January 23, 2006, the respondent admitted the new
allegations, conceded inadmissibility, and requested adjustment of status.2
The
DHS argued that the respondent was not eligible for adjustment of status
because he was an arriving alien. The Immigration Judge rejected that
argument and, relying on Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005),
concluded that the respondent was eligible for adjustment of status.
II. ANALYSIS
On appeal the DHS argues that the regulations have been amended and
that the Immigration Judge is not authorized to consider the respondent’s
request for adjustment of status. The DHS requests that we vacate the
Immigration Judge’s decision and administratively close the case so that the
United States Citizenship and Immigration Services (“USCIS”) can adjudicate
the application in the first instance. For the following reasons, we agree with
the DHS’s argument that under the current regulations, the respondent is not
eligible to apply for adjustment of status before the Immigration Judge because
he is not renewing a previously denied application.
We begin our analysis with the decision of the United States Court
of Appeals for the Ninth Circuit in Bona, which held that an arriving alien
could apply for adjustment of status in removal proceedings. Bona
v. Gonzales, 425 F.3d at 670. That case involved the regulation at 8 C.F.R.
§ 245.1(c)(8) (2005), which precluded arriving aliens from seeking adjustment
of status in removal proceedings. The court concluded that the regulation was
invalid because it precludes arriving aliens from applying for adjustment
of status any time the alien is placed in removal proceedings. According to the
court, “[A] regulation that specifically excludes paroled aliens from applyingCite as 25 I&N Dec. 89 (BIA 2009) Interim Decision #3656
91
for adjustment of status in removal proceedings directly conflicts not only with
the specific statute on point, 8 U.S.C. § 1255(a), but creates absurd results
when viewed in light of the larger statutory scheme.” Id. In reaching this
conclusion, the Ninth Circuit expressly agreed with a decision of the First
Circuit in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). Other courts have
concurred with that ruling. Scheerer v. U.S. Att’y Gen., 445 F.3d 1311 (11th
Cir. 2006); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005). On the other hand,
two courts have held that the regulation was a valid exercise of discretionary
authority. 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).
As we recently noted in Matter of Martinez-Montalvo, 24 I&N Dec. 778,
782 (BIA 2009), the Attorney General and the Secretary of Homeland Security
amended the regulations in 2006 and “eliminate[d] 8 C.F.R. §§ 245.1(c)(8) and
1245.1(c)(8) to avoid inconsistent application of the adjustment of status
laws.” The new regulations at 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1) (2009)
give the USCIS jurisdiction to adjudicate adjustment applications of arriving
aliens, with a limited exception. Thus, Immigration Judges only have
jurisdiction to adjudicate an arriving alien’s application for adjustment
of status where (1) the alien properly filed the application for adjustment
of status with the USCIS while in the United States, (2) the alien departed from
and returned to the United States pursuant to a grant of advance parole, (3) the
application for adjustment of status was denied by the USCIS, and (4) the DHS
placed the alien in removal proceedings. 8 C.F.R. §§ 1245.2(a)(1)(ii)(A)-(D).
As the Ninth Circuit has recognized, albeit in a slightly different context, the
“Interim Rule . . . was passed in response to the decisions of four Courts
of Appeal[s], including our own, holding that the Attorney General must
provide an opportunity for arriving aliens in removal proceedings to apply for
adjustment on the basis of a valid immigrant visa petition.” Kalilu v. Mukasey,
548 F.3d 1215, 1218 (9th Cir. 2008).
In Matter of Martinez-Montalvo, we considered a related but
somewhat different issue, namely whether an Immigration Judge has
jurisdiction to consider an application filed by an arriving alien seeking
adjustment of status under the Cuban Refugee Adjustment Act of November
2,1996, Pub. L. No. 89-732, 80 Stat. 1161 (“Cuban Adjustment Act”).
We concluded that Immigration Judges do not have such jurisdiction. Matter
of Martinez-Montalvo, 24 I&N Dec. at 783. In so holding, we relied on the
regulatory amendments discussed above that give the USCIS jurisdiction over
adjustment applications of arriving aliens and only allow Immigration Judges
to take jurisdiction in narrow circumstances. We determined further that the
rules applicable to adjustment applications under section 245 of the Act,
8 U.S.C. § 1255 (2006), would apply to Cuban Adjustment Act cases.Cite as 25 I&N Dec. 89 (BIA 2009) Interim Decision #3656
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Although Martinez-Montalvo involved the Cuban Adjustment Act, we now
hold that the limitations on an Immigration Judge’s jurisdiction noted there
also apply in section 245 adjustment cases.
Given the changes in the regulatory scheme, we conclude that the Ninth
Circuit’s decision in Bona v. Gonzales, 425 F.3d 663, is not controlling here
because the concerns identified in that case, namely an arriving alien’s
inability to have an application for adjustment of status adjudicated, are
no longer applicable. The current regulations that give jurisdiction to the
USCIS and limited jurisdiction to the Immigration Judges ameliorate those
concerns.
Turning to the facts and circumstances of this case, we agree with the DHS
that under the current regulations, the respondent is not eligible to apply for
adjustment of status before the Immigration Judge because he is not renewing
a previously denied application. Rather, his request is based on a new
employment-based visa petition filed on behalf of his wife and a new
adjustment application. Although the respondent’s wife has been
grandfathered in under section 245(i) of the Act, this circumstance does not
satisfy the requirements of 8 C.F.R. § 1245.2(a)(1)(ii) in the respondent’s case,
because the application is a new one. Accordingly, the DHS’s appeal will
be sustained. However, we will remand the record to give the parties and the
Immigration Judge an opportunity to consider any relief for which the
respondent may be eligible and to allow the respondent to decide whether
to stipulate to the DHS’s proposal that the Immigration Judge administratively
close proceedings so that the USCIS can consider his adjustment application.
ORDER: The appeal of the DHS is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing decision and for the entry
of a new decision.