In re Wang
| Citation | 23 I&N Dec. 924 |
| Decision Date | 25 May 2006 |
| Docket Number | Interim Decision No. 3533.,A29 714 147. |
| Parties | In re Jian An WANG, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
The United States Court of Appeals for the Second Circuit has remanded this case with a request that we address a number of issues concerning the respondent's eligibility for adjustment of status under the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (enacted Oct. 9, 1992) ("CSPA"). After considering these issues, we again find that the respondent is ineligible for adjustment of status. We will therefore sustain the appeal of the Department of Homeland Security ("DHS") from the Immigration Judge's grant of adjustment of status and remand the record to permit the respondent to apply for any other relief for which he may be eligible.
The respondent is a native and citizen of the People's Republic of China ("PRC") who entered the United States on January 8, 1990, without inspection. On January 22, 1990, deportation proceedings were initiated upon the issuance of an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S). In August 1990, by agreement of both parties, proceedings were administratively closed.
On July 15, 1993, the respondent filed an application for adjustment of status pursuant to the Chinese Student Protection Act with the district director of the Immigration and Naturalization Service.1 On November 15, 1994, the district director denied the respondent's application, finding that his entry into the United States without inspection rendered him ineligible for CSPA adjustment. In October 1998, the respondent filed a motion to recalendar deportation proceedings in order to renew his adjustment application before the Immigration Judge. After this motion was granted, the respondent filed a new CSPA application for adjustment of status with the Immigration Court, which was date-stamped February 2, 1999. On January 28, 1999, he also paid the additional $1000 fee required for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (Supp. V 1999). The Immigration Judge granted his CSPA application for adjustment of status on October 25, 1999.
The DHS appealed the Immigration Judge's decision. In a decision dated March 14, 2003, we held that the respondent was ineligible for CSPA adjustment of status in conjunction with section 245(i) of the Act, because section 245(i) applies only to applications filed on or after October 1, 1994. See 8 C.F.R. § 245.10(e) (2003). Because the respondent's CSPA application was required to be filed before this date, we sustained the DHS appeal.
The respondent filed a petition for review in the Second Circuit. Pursuant to a Stipulation and Order of Settlement and Dismissal dated November 5, 2004, the court vacated our decision and remanded the case to us for further proceedings. The Stipulation and Order directed that we address the following questions:
1. Whether, under current law, the respondent may use section 245(i) in conjunction with his application to adjust his status under the CSPA;
2. How the LIFE Act amendments to section 245(i) affect the respondent's eligibility for adjustment of status;
3. How 8 C.F.R. § 245.10(a) affects the respondent's application for adjustment of status in conjunction with a waiver under section 245(i); 4. Whether the November 1997 amendments to section 245(i) vitiate the regulatory provision that section 245(i) does not apply to an application for adjustment of status that was filed before October 1, 1994;
5. Whether an application for adjustment of status should be deemed a continuing application that renders 8 C.F.R. § 245.10(f)(2), which requires that a new application be filed, inapplicable to this case; and
6. Whether the amendments to section 245(i) apply to this case because an adjustment of status application is deemed to be a continuing application such that changes in the law that took effect while the application was pending apply to the respondent's case.
The Chinese Student Protection Act allowed certain Chinese nationals to adjust their status under section 245 of the Act. To be eligible for adjustment under the CSPA, an alien must (1) be a national of the People's Republic of China; (2) have resided continuously in the United States since April 11, 1990 (except for brief, casual, and innocent absences); and (3) not have been physically present in the PRC for more than 90 days between April 11, 1990, and October 9, 1992. See CSPA § 2(b), 106 at 1969 (entitled "Aliens Covered"). According to the implementing regulations, to establish eligibility an alien must also (1) have been in the United States at some time between June 5, 1989, and April 11, 1990; (2) be admissible to the United States as an immigrant, unless the basis of the alien's inadmissibility has been waived; (3) establish eligibility for adjustment under all provisions of section 245 of the Act, unless the basis for ineligibility has been waived; and (4) file an application for adjustment of status under section 245 of the Act. See 8 C.F.R. § 1245.9(b) (2006).
An alien who met the above requirements was "deemed to have had a petition approved under section 204(a) of [the Immigration and Nationality] Act for classification under section 203(b)(3)(A)(i) of such Act." CSPA § 2(a)(1), 106 Stat. at 1969. Additionally, the alien's adjustment application was to be considered "without regard to whether an immigrant visa number [was] immediately available at the time the application [was] filed." Id. § 2(a)(2). Moreover, the provisions of section 245(c) of the Act did not apply to applicants under the CSPA. Id. § 2(a)(5).
The CSPA provided a 12-month window from July 1, 1993, to June 30, 1994, during which CSPA adjustment applications would be accepted. See CSPA § 2(e), 106 Stat. at 1971. The respondent submitted a timely application for CSPA adjustment in July 1993, but it was denied by the district director because his entry without inspection precluded him from establishing eligibility "under all provisions of section 245 of the Act." 8 C.F.R. §1245.9(b)(6).
Eligibility for adjustment of status under section 245(a) of the Act is generally limited to aliens who have been "inspected and admitted or paroled" into the United States. However, a few months after the period for filing an adjustment application under the CSPA expired, Congress amended section 245 to permit certain aliens who had entered without inspection to seek adjustment to lawful permanent resident status upon payment of a surcharge. See section 245(i) of the Act; see also Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, Pub. L. No. 103-317, § 506(b), 108 Stat. 1724, 1765-66 (enacted Aug. 26, 1994) ("1995 Appropriations Act").
Under the initial version of section 245(i), an alien who was eligible to receive an immediately available immigrant visa, but who would be precluded from adjustment of status under section 245(a) for having entered without inspection or for one of the reasons enumerated in section 245(c), was permitted to adjust status upon payment of a surcharge along with an application for adjustment under section 245(i). 1995 Appropriations Act § 506(b), 108 Stat. at 1766. Under this initial enactment, a section 245(i) application for adjustment had to be filed between October 1, 1994, and October 1, 1997. Id. § 506(c). The enacting language provided that "[t]he provisions of [this] amendment[] to the Immigration and Nationality Act shall take effect on October 1, 1994 and shall cease to have effect on October 1, 1997." Id.
Congress has twice extended and amended section 245(i). The first extension occurred on November 26, 1997, after the initial period for filing a section 245(i) application had expired. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, § 111(b), 111 Stat. 2440, 2458 (enacted Nov. 26, 1997) ("1998 Appropriations Act"). This amendment repealed the sunset provision in the initial enactment, replacing the original effective date provision with the statement that the statute "shall take effect on October 1, 1994." Id. It also significantly amended the terms of section 245(i) by shifting the focus of the filing requirements from the date the application for adjustment of status was filed to the date on which the underlying visa petition or application for a labor certification was filed. Id. § 111(a). The new section 245(i) provision afforded adjustment to applicants on whose behalf a visa petition for classification under section 204 of the Act or an application for a labor certification under section 212(a)(5)(A) had been filed on or before January 14, 1998. Id.
In 2000, Congress again extended the expiration date for section 245(i) adjustment applications to April 30, 2001, in the LIFE Act Amendments of 2000, Pub. L. No. 106-554, § 1502(a)(1), 114 Stat. 2763 (enacted Dec. 21, 2000) ("LIFE Act Amendments"). The LIFE Act ...
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