Former Department of Homeland Security laws [8C.F.R.§§ 245.1(c)(8) and 1245.1(g)(8)] that barred "arriving aliens" from adjusting status from the United states of america have been eliminated in 2006, and new regulatory changes [8C.F.R.§§ 245.2(a)(1)(ii) and 245.2(a)(5)(ii), 1240.11(a)(1),1245.2(a)(1),1245.2(a)(5)(ii)] have been promulgated that constrained adjudication of application for adjustment of status for the U.S. Citizenship and Immigration Services (USCIS). The Eleventh Circuit Court, in Scheerer v. Lawyer basic with the U.S. (2008) 513 F.3d 1244, upheld the regulation [8C.F.R. § 1245.2(a)(1)] limiting adjustment of status towards the USCIS for arriving aliens as valid under the Chevron evaluation because it did not get rid of adjustment of status like a treatment, but just constrained the forum (USCIS) for its filing and adjudication. And the Eighth Circuit Court, in Clifton v. Holder (2010), 598 F.3d 486, held that the Board of Immigration Appeals (BIA) could not deny a movement to reopen or remand in order for your petitioner to get a continuance or stay with the Immigration Court proceedings, in order to find adjustment of status ahead of the USCIS.
In fact, the Ninth Circuit Court had previously ruled, in Kalilu v. Mukasey (2008) 548. F3d 1215, 1217-19, that the BIA abused its discretion by denying a motion to reopen, opposite to its doctrine in Make a difference of Velarde-Pacheco, 23 1&N Dec. 253. (BIA 2002), and on the ground that only the USCIS had jurisdiction over adjustment of status simply because the grant with the motion to reopen would have granted the USCIS the time to adjudicate the adjustment application just before it. The more troubling issue is the extent the regulatory modifications cited above has removed the Immigration Court's jurisdiction to adjust status of arriving aliens. Indeed, the BIA, in Issue of Silitonga, 25 I&N Dec. 89 (BIA 2009), has decided the changed rules of the Department of Homeland Security (DHS) prohibit Immigration Judges from conducting adjustment of status hearings for arriving aliens except in narrow circumstances.
Constrained Circumstances When Immigration Judges Have Jurisdiction On Adjustment of Status:
In Matter of Silitonga, supra, the BIA stated the constrained circumstances as follows: "Thus, Immigrations Judges only have jurisdiction to adjudicate an arriving alien's application for adjustment of status where (1) the alien properly filed the application for adjustment of status with the USCIS while in the United states, (2) the alien departed from and returned to the Usa pursuant to a grant of advance parole, (3) the application for adjustment of status was denied by USCIS, and (4) the DHS placed the alien in removal proceedings. 8C.F.R.§§ 1245.2 (a)(1)(ii)(A)-(D).''
Whilst the BIA had cited the Ninth Circuit Court's 2008 decision in Kalilu, supra, "...the Attorney General must provide an opportunity for arriving aliens in removal proceedings to apply for adjustment on the basis of a valid immigrant visa petition," it then held the Ninth Circuit Court's 2005 decision in Bona v. Gonzalez, 425 F.3d 663, that an arriving alien may adjust status in removal proceeding is not controlling since current regulatory modifications "that give restricted jurisdiction to your Immigration Judges ameliorate those concerns."
Conclusion:
Under recent regulatory modifications [8C.F.R. §§ 245.2 (a)(1) and 1245.2(a)(1)(ii) (2009)], Immigration Judges have no jurisdiction to adjudicate application for adjustment of status of arriving aliens, with the restricted exception of aliens who have been placed in removal proceedings after returning towards the U.s., pursuant to a grant of advance parole to pursue a previously filed the Form I-485 application.
