Cite as "AILA InfoNet Doc. No. 94102558 (posted Oct. 25, 1994)"
October 21, 1994
Chief Immigration Judge
Office of the Chief Immigration Judge
5107 Leesburg Pike
Falls Church, VA 22041
Dear Chief Judge Creppy:
I write to ask your immediate intervention to resolve the
erroneous and unreasonable interpretation given by some Immigration
Judges to the status of recently enacted '245(i) relating to
eligibility for adjustment of status in the United States. As you
know, after Congress enacted the '245(i) in question, it also
designated as '245(i) an amendment to the Immigration and
Nationality Act (INA) relating to a new "S" visa.
When I spoke on a panel with you at a meeting of the D.C.
Chapter of the American Immigration Lawyers Association in
September, 1994, you indicated, if I remember your remarks
accurately, that while you felt that in the long run a technical
amendment would be needed to overcome the designation of these two
distinct subsections of the statute, EOIR was joining the INS in
its position that the duplicate designation neither repealed nor
superseded '245(i) as it pertains to adjustment of status
Notwithstanding what I understand to be the joint position of
INS and EOIR regarding the viability of '245(i) as it relates to
adjustment of status eligibility, at least two instances have been
reported to me in which two different Immigration Judges in the Los
Angeles EOIR district have refused to exercise jurisdiction over
applications for adjustment of status under new '245(i) for the
reason that it is ineffective as having been replaced by the
subsequently enacted '245(i). As a result, eligible applicants for
adjustment of status are being foreclosed from seeking this relief
before Immigration Judges.
Thank you for your prompt attention to this matter. I am
concerned that such confusion and misunderstanding of the EOIR's
position may affect the adjudications conducted by Immigration
Judges in other districts as well.
As I understand your interpretation to be in conformity with
that of the INS, then I urge you to immediately send a cable or
memo to all District Offices of the Immigration Judge.
Lory D. Rosenberg
AILF Legal Action Center
Indeed, in the Supplementary Information provided in INS'
regulations (59 Fed. Reg. 194, at 51094, October 7, 1994), INS
states that it is clear that Congress had no intent to repeal or
supersede the provisions of the Department of Justice, State and
Related Agencies Appropriations Act which contains '245(i) relating
to adjustment of status, and that it regards the establishment of
another '245(i) to govern the new "S" visa as a numbering error,
regarding which it will recommend correction by redesignating that
subsection as '245(j).