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Comment on CIS and EOIR’s interim regulations!

Cite as "AILA InfoNet Doc. No. 06060760 (posted Jun. 7, 2006)"

Please comment on CIS and EOIR's interim regulations suggesting unnecessary and harmful limits on the exercise of discretion in adjustment cases filed by "arriving aliens" in removal cases! The following model comments, prepared by AILF staff and Boston AILA members, can be used to comment on the interim regulation. Comments are due on June 12, 2006. For filing information, see attached interim regulation.

Director, Regulatory Management Division,
U.S. Citizenship and Immigration Services,
Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20529

Re: DHS Docket No. DHS-2006-0010

Dear Sir or Madam:

We submit the following comments on the interim rules entitled "Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of Status," 71 Fed. Reg. 27585 (May 12, 2006).

  • We commend the U.S. Citizenship and Immigration Services (CIS) and the Executive Office of Immigration Review (EOIR) for deleting the regulations that barred "arriving aliens" - including parolees - from adjusting status to lawful permanent residence if they were in removal proceedings. See 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8).
  • We would encourage the agencies to give immigration judges (IJs) jurisdiction over these adjustment applications, in addition to CIS jurisdiction.
  • We are very concerned by and strongly opposed to the suggestion for regulatory restrictions on the exercise of discretion by CIS adjudicators and IJs. We strongly urge CIS and EOIR to reject all regulatory restrictions on the exercise of discretion by adjudicators. Instead, we urge the agencies to allow adjudicators full discretion in each particular case, guided by decades of precedential Board and federal court case law.

I. Comments On The Agencies' Amendment Of The Regulations

1. Removal Of The Bar To An "Arriving Alien" Adjusting In Proceedings Is An Appropriate And Timely Action.

CIS and EOIR are to be commended for deleting the bar which prohibited an "arriving alien" in removal proceedings from adjusting status to lawful permanent residence. Removal of this bar will allow eligible, deserving individuals with close family ties and/or sponsoring employers to become lawful permanent residents as Congress intended. It will also ensure that the law is applied consistently around the country. Finally, it will resolve the split in the Courts of Appeals in a way that will carry out Congress's intent.1

2. Jurisdiction Over The Adjustment Applications Of Parolees In Removal Proceedings Need Not And Should Not Be Limited To CIS.

CIS and EOIR have gone too far by restricting jurisdiction over these applications to CIS only. We would encourage the agencies to grant IJs jurisdiction over the adjustment applications of parolees in removal proceedings. Allowing parolees in proceedings to adjust before an IJ would make the process uniform for all adjustment applicants. It would also promote agency efficiency. It would eliminate the risk that that a parolee would be precluded from having an adjustment application adjudicated due to the inability to get a continuance of the removal proceedings.

3. The Agencies Should Clarify By Memo Or Instructions The Current EOIR Procedure For Pending Cases Until A Final Rule Is Adopted.

Until a final regulation is issued, the agencies should adopt a uniform procedure to ensure that the applications of all parolees in removal proceedings who are eligible to apply for adjustment have the opportunity to do so. We suggest administrative closure of the removal proceeding pending adjudication of the adjustment application by CIS. This would ensure that all parolees have a full and fair opportunity to have their adjustment applications adjudicated by CIS, as intended by Congress. It would also benefit EOIR by allowing these cases to be taken off the dockets until the adjustment application was resolved, thereby reducing the workload of the immigration courts. In the alternative, EOIR should instruct IJs that they are to grant continuances for as long as necessary for CIS to adjudicate the adjustment application.

4. The Meaning of "Filed" Should Be Clarified.

The regulation under 8 C.F.R. § 1245.2(a)(1)(i) should clarify whether adjustment applications filed by aliens who are in removal proceedings must first be feed-in with USCIS at the Texas Service Center and then filed with the Immigration Judge. The regulation under 8 C.F.R. § 1245.2(a)(1)(ii) should also clarify whether arriving aliens who are in proceedings should file with the Texas Service Center as do non-arriving aliens in proceedings or the lock-box as do aliens who are not in proceedings.

II. Comments On The Additional Rulemaking That EOIR And CIS Are Considering

1. The Adjustment of Parolees in Removal Proceedings Will Not Harm the Integrity of the Visa Process.

Congress specifically intended that those eligible to adjust be exempted from visa processing - that is the purpose behind INA § 245(a). Despite this, the proposed restrictions on discretion are based on the faulty premise that the adjustment of parolees in proceedings "undermine[s] the integrity of the visa issuance process." See 71 Fed. Reg. at 27588 and 89. EOIR and CIS present no argument or evidence to support this or to show that these restrictions would preserve the integrity of the visa process. The adjustment of parolees does not affect the integrity of the visa process any more than the adjustment of any other category. The adjustment of parolees in removal proceedings has no greater impact on the visa process than the adjustment of parolees in exclusion proceedings had on the visa process prior to 1997. No regulatory restrictions were necessary for all of those years.

2. CIS' and EOIR's Generalizations About Parolees in Removal Proceedings Are Inaccurate and Unsupported by Any Evidence.

CIS and EOIR make the unsupported assumption that most or all parolees in proceedings are now and will continue to be attempting to circumvent the visa process. Similarly, the agencies conclude without evidence or support that "generally," these parolees "could have and should have sought and obtained an immigrant visa from a consulate abroad;" and that these parolees, "generally," will have "arrive[ed] at a port-of-entry as a putative nonimmigrant, or with otherwise invalid or fraudulent documents." 71 Fed. Reg. at 27589.

First, these factors are not all relevant considerations. As four courts of appeals have held, INA § 245(a) gives eligible parolees the same right to apply for adjustment as it gives eligible non-citizens who have been admitted. Thus, all parolees who are eligible to apply to adjust status within the United States "can and should" seek permanent residence in this way. Congress has determined that neither the fact that they are parolees nor the fact that they are in proceedings has any bearing on adjustment being the proper route to permanent residence for them.

Additionally, there is no factual or legal support for these assumptions. By statute, non-citizens can only be paroled if they demonstrate "urgent humanitarian reasons" or that parole will yield a "significant public benefit." 71 Fed. Reg. at 27586. The very fact that the individual was granted parole in the discretion of the government indicates that the individual had a legitimate humanitarian or public interest reason for seeking entry into the United States.

3. The imposition of discretionary regulatory barriers to parolees' ability to adjust status will harm those with a serious need to avoid departure from the U.S.

If parolees are denied the opportunity to adjust, they will be required to leave the country to process immigrant visa applications abroad, if eligible. This would cause the greatest harm to those with the greatest need to process in the U.S.: aliens from war-torn countries or countries with other harmful conditions, aliens with medical issues, aliens who have minor children or parents dependent on them in the U.S., aliens with limited economic resources for costly overseas travel; and others for whom return will impose unnecessary hardship.

4. The Proposal To Treat An Applicant's Status As An Arriving Alien As A Significant Adverse Factor That May Warrant Denial Of Adjustment Conflicts With Congressional Intent And The Legislative History Of INA §245(A).

Adjustment of status by an "arriving alien" should not be considered a "significant adverse factor" because Congress specifically sought to discourage consular processing by passing INA §245(a) in 1960. It would directly contradict Congress' intent to now treat the failure to consular process as a significant adverse factor. Legislative history behind INA § 245(a) demonstrates Congress' intent to rectify problems that existed with the former "preexaminiation" system. Making the failure to consular process a "significant adverse factor" contradicts the clear intent of Congress to relieve the burden on the consulates, the immigrant, and the immigrant's family caused by consular processing. DOJ and DHS must follow the will of Congress and not make the failure to consular process a significant adverse factor.

5. Creating A Presumption Against Adjustment Of Status Or Elevating Failure To Consular Process To A Significant Adverse Factor Results In A Failure To Exercise Discretion In Violation Of INA § 245(a).

It is elementary that adjustment of status under INA §245(a) is based on discretion. Matter of Arai, 13 I&N Dec. 494, 495-496 (BIA 1970). In exercising discretion, DHS or DOJ is required to balance equities, such as family ties, length of residence in the U.S., and hardship with any adverse factors, such as criminal history or preconceived intent. The agencies have competently undertaken its balancing duties for many years. It is also elementary that the exercise of discretion requires an individualized analysis of a given case. Hintopolous v. Shaughnessy, 353 U.S. 72, 75-76 (1957). Finally, an agency must look at the individual merits of a case and make a reasoned decision that demonstrates that it has balanced equities and adverse factors. Chenery v. Heckler, 332 U.S. 194, 196 (1947).

The proposal to create a presumption against adjustment for arriving aliens, or to elevate the failure to consular process to a "significant adverse factor," would remove from consideration the individual circumstances of a given case, thereby depriving arriving aliens of a discretionary decision. Instead of balancing all factors, as required by case law, the proposed regulations essentially make the failure to consular process the only issue to consider. Simply, if a person is an arriving alien, he would be automatically subject to a negative presumption or heightened burden of proof without consideration of his individual circumstances, and the agencies would not be free to conduct an individualized analysis of the case, as they are required to do in exercising discretion.

6. It Is Unnecessary To Extend By Regulation The Standard Of "Unusual And Outstanding Countervailing Equities" To Adjustment For Arriving Aliens.

DHS and DOJ do not need to promulgate additional rules for arriving aliens who seek adjustment of status. There is a well-settled body of case law that applies to all adjustment applicants. This precedent case law allows an adjudicator to deny applications as a matter of discretion based upon adverse factors which are not offset by equities. The lead case that elucidates this standard is Matter of Arai, 13 I&N 494 (BIA 1970).

Existing case law does not support the proposition that a showing of "unusual or outstanding equities" is required for discretionary approval of an adjustment application where adverse factors exist. Rather, the heightened standard of "unusual and outstanding equities" has been applied in cases that involve aliens with criminal convictions. Extension of this standard to parolees is unwarranted and unsupported by case law and statutory history. The Secretary and Attorney General should allow IJs to continue to balance the equities in cases where discretion must be exercised. See Matter of Marin, 16 I&N Dec. 581 (BIA 1978).

7. The Termination And/Or Revocation Of Parole Status Is Not An Adverse Factor To Be Considered In An Adjustment Application.

The fact that an applicant's parole has been terminated or revoked should not be formalized in the regulation as an adverse factor. INA § 245(a) is clearly written in the past tense. An individual is eligible for adjustment if he "was inspected and admitted or paroled." 8 U.S.C. § 1255(a). There is absolutely no requirement in the statute that the individual maintain the status of a parolee up until the time of adjustment.

Treating parole revocation/termination as a "significant adverse factor" incorrectly focuses the discretionary decision on the agency's action rather than the underlying facts that gave rise to the revocation/termination - facts that may or may not make the non-citizen any less deserving of discretion. This is particularly true since, under the regulations, parole is automatically terminated when a charging document is served on the parolee. 8 C.F.R. § 212.5(e)(2)(i). As several courts have now held, Congress did not intend removal proceedings to be a basis for ineligibility for adjustment for parolees. Therefore, initiation of proceedings, which automatically triggers termination of parole, cannot be an adverse factor.

8. Regulatory Standards For Granting Continuances Should Not Be Amended To Deprive Parolees Of A Meaningful Adjustment Of Status Application Procedure.

We oppose any regulatory restrictions on continuances being granted in removal proceedings so that parolees can seek adjustment before CIS. The effect of such restrictions would be to deny paroled aliens the opportunity to have their USCIS adjustment applications actually considered by any authority. This result would violate the decisions of the four courts of appeals that held that parolees must have this opportunity to apply for adjustment.

The "application" provided for under INA §245 must mean not just the right to file a form but the right to have the adjustment claim actually considered. See U.S. ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). And it must mean the same for parolees as for admitted aliens. As the Supreme Court has made clear, a statute may not mean different things depending on whom it is applied to. Clark v. Martinez, 543 U.S. 371 (2005). Subjecting parolees to sham application procedures, when other statutorily eligible groups are provided a meaningful one, would be arbitrary and capricious, an abuse of discretion and otherwise not in accordance with law.

While no restrictions can be placed on continuances, we would encourage the agencies to adopt an administrative closure procedure for these cases. This procedure would ensure fairness to the adjustment applicant and would promote judicial economy by taking the cases off the active docket of the immigration courts.



1 Four courts struck down the regulations: Scheerer v. Attorney General, __ F. 3d __ , 2006 WL 947680 (11th Cir. April 13, 2006); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). Only two courts have upheld the regulation. Momin v. Gonzales, __ F.3d __, 2006 WL 1075235 (5th Cir. April 24, 2006) and Mouelle v. Gonzales, 416 F.3d 923 (8th Cir.), petition for cert. filed No. 05-1092 (February 23, 2006).

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