BIA: IJs Have Jurisdiction over Arriving Aliens' Applications for Adjustment under Cuban Adjustment Act (Matter of Artigas)

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

BIA: IJs HAVE JURISDICTION OVER ARRIVING ALIENS' APPLICATIONS FOR ADJUSTMENT UNDER CUBAN ADJUSTMENT ACT (MATTER OF ARTIGAS)
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

The Board of Immigration Appeals has ruled that immigration judges have jurisdiction to adjudicate applications filed by "arriving aliens" seeking adjustment of status under the Cuban Adjustment Act. The BIA concluded that, although generally only the Immigration and Naturalization Service has jurisdiction to adjudicate adjustment applications of arriving aliens, the Cuban Adjustment Act provides an exception to this rule.

The BIA's ruling turns on the meaning of the regulations issued by the attorney general in 1997 to establish "removal proceedings," as required by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Historically, immigration judges had jurisdiction over adjustment applications filed by immigrants in deportation proceedings. IJs generally did not have jurisdiction over adjustment applications filed by individuals in exclusion proceedings; such applications had to be adjudicated by the INS. There was an exception to this rule, for individuals who had previously filed adjustment applications, left the U.S. with advance parole, and on their return to the U.S. were paroled and placed in exclusion proceedings.

The IIRIRA replaced deportation and exclusion proceedings with a single form of proceeding: "removal proceedings." However, with respect to the availability of adjustment, the regulations implementing IIRIRA retain a key distinction between persons who under the old statute would have been put in deportation proceedings and those who would have been put in exclusion proceedings. The regulations define an "arriving alien" as an applicant for admission seeking to enter the U.S. at a port of entry; before IIRIRA, such individuals would have been placed in exclusion proceedings. And the regulations provide that an arriving alien in removal proceedings is ineligible to apply for adjustment "under section 245" of the INA. 8 CFR § 245.1(c).

However, the Cuban Adjustment Act is not encompassed within INA section 245, and the regulations do not expressly address the eligibility of arriving aliens in removal proceedings for adjustment under this act. The BIA decided that by limiting the eligibility of arriving aliens in removal proceedings to apply for adjustment "under section 245," the attorney general did not intend to bar their adjustment under the Cuban Adjustment Act. The BIA concluded that IJs have jurisdiction in removal proceedings to adjudicate applications filed by arriving aliens seeking adjustment under the Cuban Adjustment Act.

Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001).