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Monday, July 17, 2006
Reeves: Change in status of aliens in deportation proceedings
By Robert L. Reeves
ARRIVING aliens in removal or deportation proceedings can now adjust their status to lawful permanent resident before the United States 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 versus Gonzales case.
We discussed the Bona versus Gonzales case in a previous article and its positive implications for arriving aliens. Bona, a Philippine national married to a US citizen, was paroled to the US and later placed in removal proceedings. Because she entered the US 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 US at a port of entry, seeking transit through the US at a port of entry or interdicted at sea and brought to the US.
Under 8 CFR Section 245.1(c)(8), the DHS precluded arriving aliens in removal proceedings from adjusting to permanent resident status. However, this regulation directly conflicted with Section 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 the INA and contain procedural instructions regarding various applications and appeals.
Because of the conflict between the INA and regulations, immigration judges cannot adjust the status of arriving aliens with valid and available immigrant visas. This issue was raised before four different federal appellate courts: the First, Third, Ninth, and Eleventh Circuit Court of Appeals. The four circuit appelate courts determined that the 8 CFR regulation was invalid because in enacting it, Congress intended to allow paroled aliens to adjust. The more conservative Fifth and Eighth Circuits upheld the regulation.
The majority of the circuit court determined that the provision erroneously precluded an entire class of aliens (arriving aliens) from adjusting their status, even though Congress had stated in the INA that they were eligible for such relief.
The DHS acknowledged that the circuit split resulted in “considerable confusion,” and decided that it would best serve public interest by implementing a nationwide policy on the issue.
The interim regulations provide that arriving aliens in removal proceedings may adjust status directly before the DHS, similar to procedures for aliens in former exclusion cases that existed before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act in September 1996.
(www.rreeves.com)
For Bisaya stories from Cebu. Click here. (July 17, 2006 issue)
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