Reinstatement of Removal Held to Not Apply to Special Immigrant Juvenile Adjustment

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

REINSTATEMENT OF REMOVAL HELD TO NOT APPLY TO SPECIAL IMMIGRANT JUVENILE ADJUSTMENT
Immigrants' Rights Update, Vol. 16, No. 8, December 23, 2002

In an important decision affecting abused and neglected children, the Office of Administrative Appeals (AAO) of the Immigration and Naturalization Service has ruled that reinstatement of removal does not apply to a special immigrant juvenile (SIJ) applying for adjustment of status. The AAO concluded that, because under the Immigration and Nationality Act special immigrant juveniles seeking adjustment are deemed to have been paroled into the U.S., they cannot be considered to have entered the U.S. unlawfully and thus are not subject to reinstatement of removal.

The decision came in the case of a 17-year-old Mexican boy who sought to adjust his status based on an SIJ petition. The district director denied the adjustment application because the boy had returned to the United States without inspection, after having been removed three times under expedited removal orders. The district director found that reinstatement of removal applied to the applicant and barred him from the relief of adjustment of status. The boy appealed the denial to the AAO. Upon review, the AAO ordered the district director to withdraw the decision and remand the case.

An SIJ petition is available to children under the age of 21 who have been abused, neglected, or abandoned, and who are deemed eligible for long-term foster care by a juvenile court. A child may file an SIJ petition along with an adjustment of status application at the local INS district office with jurisdiction over the child's residence. If successful, the child gains lawful permanent residence.

Congress amended the reinstatement of removal provision at issue when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The amended provision (Immigration and Nationality Act § 241(a)(5)) states that an individual who reenters the U.S. illegally after removal or departs voluntarily under such an order is subject to the previous removal order, may not reopen his or her case, and is barred from all relief.

The AAO began its analysis by noting that nothing in the reinstatement of removal provision exempts minors from its application. However, the appellate unit recognized that INA section 245(h)(1) accords SIJ petitioners a special status. This statute provides that an individual seeking adjustment as an SIJ "shall be deemed, for purposes of subsection (a) [the section on adjustment of status] to have been paroled into the U.S." The AAO then relied on Leng May Ma v. Barber, 357 U.S. 185 (1958), for the proposition that a paroled alien is deemed not to have entered the U.S. The AAO concluded that for this reason the SIJ applicant cannot be considered to have entered the U.S. unlawfully and thus is not subject to the reinstatement of removal provision.

The AAO went on to note that while an SIJ applicant may sidestep the reinstatement provision, the petitioner was still subject to the inadmissibility grounds under INA section 212. In this case, the boy's previous removals and misrepresentations of citizenship give rise to several grounds of inadmissibility. However, the INS may waive these grounds for humanitarian purposes, family unity, or when it is otherwise in the public interest.

The appellate unit's decision, although not designated as a precedent decision, is significant because it is the AAO's first decision analyzing treatment of SIJ applicants with illegal reentries. The appellate unit has jurisdiction over a number of matters, including appeals of denials of applications for adjustment of status.

Decision of Antonio Francis-Lugo, INS Office of Administrative Appeals (Nov. 14, 2002).