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Ruling on a petition for review of a removal order, the
U.S. Court of Appeals for the Ninth Circuit has held that the regulation
that prohibits "arriving aliens" in removal proceedings from adjusting
to lawful permanent resident status is invalid. The court concluded
that the regulation, 8 CFR section 245.1(c)(8), conflicts with the
language and intent of section 245(a) of the Immigration and Nationality
Act, the statute governing adjustment of status. Section 245(a)
expressly defines as eligible for adjustment noncitizens who have been
paroled into the country, and it does not exclude those in removal
proceedings. The court's ruling adopts the reasoning of the First
Circuit in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005) (see
"1st Circuit Invalidates Regulation Barring
'Arriving Aliens' from Adjusting While in Removal Proceedings,"
Immigrants' Rights Update,
Feb. 10, 2005, p. 6).
One difference between this case and Succar
was that in this case the petitioner's parole status had been
revoked. However, the government did not raise this fact as a reason
for distinguishing the case from Succar, and the court noted that
the argument appeared to be waived. Moreover, the court found that even
if the argument was not waived, the statute that authorizes adjustment
for noncitizens who were paroled into the country, INA sec. 245(a),
creates this eligibility whether or not the parole status was
subsequently waived.
The court also distinguished Jiang v.
Gonzales, 425 F.3d 649 (9th Cir. 2005). In Jiang a panel of
the Ninth Circuit found that a noncitizen who returned to the U.S. under
a grant of advance parole was not eligible to renew a previously denied
adjustment application, under 8 CFR sec. 1245.2(a). The court in this
case distinguished the regulation at issue in Jiang from sec.
245.1(c)(8) on the basis that the former regulation "does not strip the
ability of an otherwise eligible class of aliens from applying for
adjustment of status in any way." On the contrary, the regulation at
issue in this case directly conflicts with INA sec. 245(a), and for that
reason the court ruled the regulation invalid.
Bona v.
Gonzales, 425 F.3d 663 (9th Cir. 2005).
By
Linton Joaquin, NILC
executive director | joaquin@nilc.org |
