By Attorneys Robert L. Reeves and Elsie Hui Arias

Arriving aliens in removal (deportation) proceedings can now adjust their status to lawful permanent resident before the U.S. Citizenship and Immigration Services (USCIS) under new regulations issued by the Department of Homeland Security (DHS). The interim regulations, which follow conflicting decisions by six different federal appellate courts, implement the more positive interpretation held by the Ninth Court of Appeals last year in Bona v. Gonzales.

We discussed Bona v. Gonzales in a previous article and its positive implications for arriving aliens. Bona, a Philippine national married to a U.S. citizen, was paroled into the U.S. and later placed in removal proceedings. Because she entered the U.S. on a parole visa, the immigration judge determined that she was an “arriving alien,” and therefore, precluded from adjusting status in removal proceedings. A foreign national is also classified as an arriving alien when they are: applying for admission into the U.S. at a port of entry; seeking transit through the U.S. at a port of entry; or interdicted at sea and brought to the U.S.

Under 8 C.F.R. § 245.1(c)(8), the DHS precluded arriving aliens in removal proceedings from adjusting to permanent resident status. However, this regulation directly conflicted with § 245(a) of the Immigration and Nationality Act (INA), which specifies that an alien who is “inspected and admitted or paroled” can apply for adjustment of status. Regulations reflect the DHS interpretation of immigration law (INA) and contain procedural instructions in regards to various applications and appeals.

Based on the conflict between the INA and regulations, immigration judges could not adjust the status of arriving aliens with valid and available immigrant visas. This issue was raised with six different federal appellate courts: the First, Third, Ninth, and Eleventh Circuit Court of Appeals determined that 8 C.F.R. § 245.1(c)(8) was invalid because in enacting § 245(a), Congress intended to allow paroled aliens to adjust, while the more conservative Fifth and Eighth Circuits upheld the regulation. The majority of the circuits determined that 8 C.F.R. § 245.1(c)(8) erroneously precluded an entire class of aliens (arriving aliens) from adjusting their status, even though Congress had stated in INA § 245(a) that they were eligible for such relief.

The DHS acknowledged that the circuit split resulted in “considerable confusion,” and determined that it would best serve the public interest by implementing a nationwide policy on this issue. The interim regulations provide that arriving aliens in removal proceedings may adjust status directly before the DHS, similar to the procedures in place for aliens in former exclusion proceedings that existed before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in September 1996. Based on our experience with such cases so far, the immigration judge will administratively close removal proceedings for eligible aliens and the DHS will transfer the cases to their district office for an adjustment interview.

In the interim regulations, the DHS also states that with “only one narrow exception, arriving aliens will not be able to submit or renew applications for adjustment of status in removal proceedings.” The narrow existing exception concerns aliens who leave the U.S. while an adjustment application is pending with the USCIS, and then returns to the U.S. with advance parole. If the alien is placed in removal proceedings, the immigration judge will retain jurisdiction to adjudicate the alien’s renewed adjustment application if that application had been denied by the USCIS.

The interim regulations are effective immediately but are subject to change, as they are not final regulations and public comments have been invited. The DHS’s issuance of these regulations in light of several appellate courts’ holdings demonstrates that unfair regulations can be challenged successfully. Because immigration law is a complex mixture of case law, statute, and regulations, aliens in removal proceeding should consult with knowledgeable and experienced immigration attorneys.