In 1997, the former INS adopted a regulation that barred all "arriving aliens" who were in removal proceedings from adjusting status. See former 8 C.F.R. § 245.1(c)(8) (1997). At the same time, INS adopted a regulation broadly defining the term "arriving alien." As a result, almost all parolees in removal proceedings were barred from adjustment of status. This regulation was withdrawn by the government in 2006 following litigation spearheaded by the LAC and was replaced by a regulation that gives USCIS jurisdiction over these adjustment applications.
CASES
Challenges to the 1997 Regulation
The LAC filed amicus briefs in nine courts of appeals in which we challenged the regulatory bar to adjustment of status for “arriving aliens” in removal proceedings. Ultimately, three courts accepted our arguments that the regulation violated the statute. Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005). A fourth court followed the lead of these three courts. Scheerer v. U.S. Attorney General, 445 F.3d 1311 (11th Cir. 2006). Two other courts rejected our arguments and upheld the regulation. Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005); Momin v. Gonzales, 447 F.3d 447 (5th Cir. 2006). In response to this litigation, the government withdrew the challenged regulation and adopted an interim regulation that provides USCIS with jurisdiction to adjudicate an adjustment application of an “arriving alien” who is in removal proceedings. 71 Fed. Reg. 27585 (2006).
Challenges Brought Under the Interim Regulation
The LAC filed amicus briefs in five courts of appeals and the BIA following adoption of the interim regulations in which we challenged the BIA’s refusal to reopen removal cases while USCIS adjudicated an adjustment application of an “arriving alien” with a final order of removal. Ultimately, the BIA issued a precedent decision finding that, generally, it does not have authority to reopen removal proceedings of “arriving aliens” under a final order of removal. Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). Through our continued advocacy with USCIS, however, we have established that USCIS can adjudicate the adjustment application of an “arriving alien” under an unexecuted final order of removal without the individual first having to get the removal proceedings reopened.
ADVOCACY
Regulatory comment: The LAC submitted comments [1] on June 12, 2006, on the interim regulations that lifted the ban on “arriving aliens” being able to adjust their status if they are in removal proceedings.
RESOURCES
LAC Practice Advisory: USCIS Adjustment of Status of "Arriving Aliens" with an Unexecuted Final Order of Removal [2](November 6, 2008). This Practice Advisory explains why USCIS has jurisdiction to decide an adjustment application of an “arriving alien” parolee with an unexecuted final order of removal.
LAC Practice Advisory: "Arriving Aliens" and Adjustment of Status: What is the Impact of the Government's Interim Rule of May 12, 2006? [3] (November 5, 2008). This Practice Advisory discusses the impact of the 2006 interim regulation – which is still in effect – that repeals the former regulatory bar on an "arriving alien" being able to adjust status is if in removal proceedings.