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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

1st Circuit Court Of Appeals Decision On Arriving Aliens, Adjustment Of Status And Removal Proceedings

by Christina LaBrie

On January 5, 2005, the First Circuit Court of Appeals[1] issued a decision in Succar v. Ashcroft, No. 03-2445 (1st Cir. 2005). The court found that the regulation restricting the ability of arriving aliens to apply for adjustment of status in removal proceedings was invalid because it is inconsistent with Section 245(a) of the Immigration and Nationality Act (“INA”).

I. BACKGROUND

Under INA Section 245(a), aliens who have been “inspected and admitted or paroled into the United States,” are eligible for adjustment of status. These individuals must also be eligible to receive an immigrant visa and have the visa must be immediately available to them. The quoted language was included in the statute in 1960.

In 1997, the Attorney General promulgated regulations to implement new legislation. The regulations created a new definition for an “arriving alien.” See 8 C.F.R. § 1.1(q). The new definition specifically included an “applicant for admission” to the United States at a port of entry and determined that such individuals remained arriving aliens even if paroled into the United States. This new definition was significant because the Attorney General also created categories of individuals ineligible for adjustment of status. One of those categories was “any arriving alien who is in removal proceedings.” See 8 C.F.R. § 245.1(b)(1).

The Attorney General also issued regulations setting forth the proper procedure for consideration of applications of adjustment of status. These regulations stated that for aliens in removal proceedings, “his or her application for adjustment of status…shall be made and considered only in those proceedings.” 8 C.F.R. § 245.2(a)(1). These regulations specifically precluded “arriving aliens” from applying for adjustment of status in removal proceedings, but stated that arriving aliens not in removal proceedings could apply for adjustment of status with the district director. See Id.

As a result of the regulations, arriving aliens (including those paroled into the United States) in removal proceedings were stuck. They could not apply for adjustment of status in removal proceedings and could not apply for adjustment of status before the district director if they were in removal proceedings. The only solution was to get the government attorney to agree to terminate proceedings to allow for adjustment before the district director.

II. THE COURT’S DECISION

The First Circuit found that the regulations limiting the ability of arriving aliens to apply for adjustment of status in removal proceedings is inconsistent with INA § 245(a), which specifically makes parolees eligible for adjustment of status. The court held that because the statute explicitly made a category of individuals eligible for adjustment of status, the Attorney General could not simply bar that category of individuals from adjusting status.

The government argued that the Attorney General ultimately has the discretion to grant or deny an application for adjustment of status and thus the limitation was an exercise of that discretion. The court rejected this argument because the Attorney General is permitted to exercise discretion in granting an application for adjustment of status but may not alter the explicit statutory eligibility for adjustment of status.

The court determined that the agency must give effect to the expressed intent of Congress because Congress had directly spoken on the issue. A different level of deference is applied where the statute is ambiguous or where Congress has been silent on the issue. The court found that the regulation conflicts with the categories of individuals eligible for adjustment of status explicitly set forth in INA § 245(a).

III. WHAT IS THE EFFECT OF THE DECISION?

This decision only applies to individuals paroled into the United States who are in immigration court proceedings and are otherwise eligible to apply for adjustment of status based on a family or employment petition.

The government will most likely argue that this decision only applies within the First Circuit, and thus only to cases pending in immigration court in Boston and San Juan, Puerto Rico. However, those with removal orders from those courts may be eligible to apply to reopen their immigration proceedings in light of the new decision. Cases on appeal to the Board of Immigration Appeals or before the First Circuit Court of Appeals may also be remanded to the Immigration Judge for consideration of an application for adjustment of status.

The decision does not clearly state whether an individual paroled into the United States must apply for adjustment of status in removal proceedings or before the district director. However, the case clearly states that these individuals must be given the opportunity to apply for adjustment of status.

Despite its limitation to the First Circuit, this decision is significant because it opens the door for arriving aliens in other jurisdictions to make the argument that they should be permitted to apply for adjustment of status. Federal courts will ultimately have to make the determination on eligibility, unless the Attorney General decides to change the regulations.

The American Immigration Law Foundation submitted an amicus brief and much of the reasoning of the brief was adopted by the court. Please refer to www.ailf.org for updates on its efforts to implement Succar v. Ashcroft nationwide.

This article originally appeared on http://www.cyrusmehta.com/.



1 The jurisdiction of the First Circuit Court of Appeals comprises Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico.


About The Author

Christina LaBrie received her J.D. in 2000 from New York University School of Law. She has been practicing immigration law since 2001 and is currently an Associate at Cyrus D. Mehta & Associates, PLLC. She is a member of the American Immigration Lawyers Association and is Secretary of the Committee on Immigration and Nationality Law of the Association of the Bar of the City of New York.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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