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The U.S. Court of Appeals for the First Circuit has held that the
regulation that prohibits “arriving aliens” in removal proceedings from
adjusting to lawful permanent resident status is invalid. The court
concluded that the regulation, 8 CFR section 245.1(c)(8), conflicts with
the language and intent of Immigration and Nationality Act section
245(a), the statute governing adjustment of status. Section 245(a)
expressly defines as eligible for adjustment non–U.S. citizens who have
been paroled into the United States, and it does not exclude those in
removal proceedings. The ruling was made on petition for review of a
removal order entered by the Board of Immigration Appeals.
The court rejected the attorney general’s argument
that the regulation barring parolees who are in removal proceedings from
adjusting their status is a valid exercise of discretion. The court
noted that, while it is true that the regulation does not bar all
parolees from adjustment because some parolees are not in removal
proceedings, it was uncontested that it applies to the majority of
parolees.
The court also rejected the attorney general’s
justification of the regulatory bar to adjustment on the basis that it
accomplishes a congressional purpose of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA) by facilitating the
removal of noncitizens who are in removal proceedings. The court noted
that, while Congress in enacting the IIRIRA made a great many changes to
the INA, it left in place the provision of section 245(a) that was
specifically enacted in 1960 to allow parolees to apply for adjustment
of status. The court concluded that Congress has therefore “clearly
spoken on the issue of eligibility” of parolees for adjustment, and
therefore the attorney general’s decision to categorically bar parolees
in removal proceedings by regulation is not a valid exercise of
discretion. The court also found support for this conclusion in the
general statutory framework of the INA, as well as in its legislative
history.
Concluding that the regulation is inconsistent with
the INA and therefore invalid, the court vacated the removal order and
remanded the case to the BIA.
Succar
v. Ashcroft, __ F.3d __, No. 03-2445 (1st Cir. Jan. 5, 2005).
By
Linton Joaquin,
NILC executive director
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