Government Decides not to Seek Rehearing in Bona v. Gonzales

Government decides not to seek rehearing in Bona v. Gonzales, the Ninth Circuit case that struck down the regulation barring arriving aliens from adjusting in proceedings.

On December 5, 2005, the government notified the Court of Appeals for the Ninth Circuit that it would not seek rehearing in the landmark case Bona v. Ashcroft, 425 F.3d 663 (9th Cir. 2005). AILF appeared as amicus in Bona, where the Court struck down the regulation that bars a parolee, as an “arriving alien,” from adjusting status if he or she is in removal proceedings. The Court found that this regulation – 8 C.F.R. § 245.1(c)(8) – violated the clear intent of Congress to authorize a parolee to adjust status, regardless of whether the person was an “arriving alien” in proceedings.

Bona is settled law in the Ninth Circuit and must be followed by all immigration judges and the Board in cases arising in the Ninth Circuit. Please contact Mary Kenney at mkenney@ailf.org if you have a case within the Ninth Circuit in which an IJ refuses to follow Bona. For more information on the issue, see the AILF practice advisory entitled "Adjustment of Status for Arriving Aliens in Removal Proceedings: Strategy Decisions to Challenge 8 C.F.R. § 245.1(c)(8)” (October 18, 2005).