Matter of Martinez-Montalvo
| Decision Date | 20 April 2009 |
| Docket Number | Interim Decision No. 3639.,File A097 309 445. |
| Citation | 24 I&N Dec. 778 |
| Parties | Matter of Jose S. MARTINEZ-MONTALVO, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated May 14, 2007, an Immigration Judge found the respondent removable and granted his application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161 ("Cuban Adjustment Act"). The Department of Homeland Security ("DHS") has appealed from that decision. The appeal will be sustained, the decision of the Immigration Judge will be vacated, and the record will be remanded for further proceedings.
The respondent, who is a native and citizen of Cuba, is an arriving alien. In removal proceedings before the Immigration Judge, he applied for adjustment of status, which the Immigration Judge granted, noting his jurisdiction to adjudicate the application and citing our decision in Matter of Artigas, 23 I&N Dec. 99 (BIA 2001). On appeal, the DHS argues that Immigration Judges do not have such jurisdiction after the publication of an interim rule in 2006 that repealed 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) (2006)1 and amended 8 C.F.R. §§ 245.2 and 1245.2 (2006), which set forth the rules regarding jurisdiction over adjustment applications. See Eligibility of Arriving Aliens in Removal Proceedings To Apply for Adjustment of Status and Jurisdiction To Adjudicate Applications for Adjustment of Status,71 Fed. Reg. 27,585 (May 12, 2006); see also 8 C.F.R. §§ 245.2 and 1245.2 (2008).2 We agree with the DHS, because the rationale underlying our decision in Matter of Artigas is no longer viable in light of the amendments to the governing regulations.
We find it helpful to set forth the history underlying the question presented in this case, as explained in the Supplementary Information to the May 12, 2006, interim rule. 71 Fed. Reg. at 27,586-88; see also Matter of Artigas, supra, at 101-04. Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), aliens who had entered the United States and were subject to deportation proceedings could file an application for adjustment of status with an Immigration Judge. See 71 Fed. Reg. at 27,586. However, this form of relief was generally unavailable to aliens seeking to enter the United States who were placed in exclusion proceedings as inadmissible aliens. Id. The former Immigration and Naturalization Service3 generally had exclusive jurisdiction over an adjustment of status application filed by a paroled alien in exclusion proceedings, and the alien was unable to file or renew the application before an Immigration Judge. Id.
When the IIRIRA was enacted in 1996, deportation and exclusion proceedings were replaced by a single "removal" proceeding, but the distinction remained between aliens who have been admitted and those seeking admission, i.e., arriving aliens. Id. Implementing the IIRIRA, the Attorney General sought to continue the traditional rule that an applicant for admission who has been placed in proceedings before an Immigration Judge generally may not seek adjustment of status as a form of relief from removal. Id. at 27,587. Therefore, in 1997 the Attorney General established a rule, which was then codified at 8 C.F.R. § 245.1(c)(8)—and was subsequently included in the regulations at 8 C.F.R. § 1245.1(c)(8) in 2003—providing that an arriving alien placed in removal proceedings was ineligible for adjustment of status. Id. (); see also supra note 1.
At the same time, a regulation regarding jurisdiction over adjustment of status applications was promulgated. See 62 Fed. Reg. at 10,383. That regulation was codified at 8 C.F.R. § 245.2(a)(1) (1998) and provided in pertinent part as follows:
Jurisdiction. An alien who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the [Cuban Adjustment Act] and § 245.1 shall apply to the director having jurisdiction over his or her place of residence unless otherwise instructed in 8 C.F.R. part 245, or by the instruction on the application form. After an alien, other than an arriving alien, is in deportation or removal proceedings, his or her application for adjustment of status under section 245 of the Act or section 1 of the [Cuban Adjustment Act] shall be made and considered only in those proceedings. An arriving alien, other than an alien in removal proceedings, who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the [Cuban Adjustment Act] and § 245.1 shall apply to the director having jurisdiction over his or her place of arrival.
(Emphasis added.) The regulation also created one exception to this jurisdictional rule for certain aliens who had applied for adjustment of status while in the United States, traveled abroad, and returned pursuant to a grant of advance parole, and whose adjustment application had subsequently been denied by the district director. 8 C.F.R. § 245.2(a)(1)(i)-(ii). Only aliens applying for adjustment in these limited circumstances could renew an application in removal proceedings.
In Matter of Artigas, supra, the Government argued that the jurisdictional regulation at 8 C.F.R. § 245.2(a)(1), in conjunction with the ineligibility provision in 8 C.F.R. § 245.1(c)(8), precluded arriving aliens placed in removal proceedings from pursuing adjustment of status under the Cuban Adjustment Act. We rejected this position, holding that an Immigration Judge has jurisdiction to adjudicate an application for adjustment of status under the Cuban Adjustment Act in removal proceedings when a Cuban alien has been charged as an arriving alien without a valid visa or entry document. In reaching this conclusion, we noted that once removal proceedings were commenced, an arriving alien was effectively precluded from submitting an application for relief under the Cuban Adjustment Act to the district director, because at that time the regulations specifically provided that "`[a]n arriving alien, other than an alien in removal proceedings, who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, and § 245.1 shall apply to the [district] director having jurisdiction over his or her place of arrival.'" Id. at 105 (quoting 8 C.F.R. § 245.2(a)(1)). Thus, we held that if the regulations were found to implicitly deprive an Immigration Judge of jurisdiction to consider applications for adjustment of status under the Cuban Adjustment Act by arriving aliens, that statutory form of relief would have effectively become meaningless. Id.
To avoid this result, we concluded that Immigration Judges were granted jurisdiction, because the regulations specifically provided authority for arriving aliens to file an application for relief pursuant to the Cuban Adjustment Act. Id. at 103 (citing 8 C.F.R. §§ 240.11(a)(1)4 and 245.2(a)(1) (2001)). We found no evidence that the Attorney General intended the post-IIRIRA amendments to the adjustment of status regulations to withdraw by implication the Immigration Judges' jurisdiction to adjudicate such applications for relief, over which they previously had exclusive jurisdiction. Id. at 103-04. Furthermore, because the Cuban Adjustment Act is a specific grant of authority to adjust the status of Cubans who could not fulfill the requirements of section 245 of the Act, 8 U.S.C. § 1255 (1994 & Supp. V 1999), we determined that it must be considered separate and apart from adjustment of status under section 245. Id. at 106. Accordingly, we held that arriving aliens placed in removal proceedings could seek adjustment of status under the Cuban Adjustment Act before an Immigration Judge.
After the issuance of Matter of Artigas, supra, and prior to the 2006 regulatory amendments relied on by the DHS in support of this appeal, some courts of appeals held that 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) were ultra vires under section 245(a) of the Act, which permits an application for discretionary adjustment of status by any alien who was "inspected and admitted or paroled." Scheerer v. U.S. Att'y Gen., 445 F.3d 1311 (11th Cir. 2006); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005). However, other courts held that the regulations constituted a valid exercise of the respective discretionary authority of the Attorney General and the Secretary of the DHS to grant or deny adjustment of status, even as applied to arriving aliens seeking adjustment of status in removal proceedings who were paroled into the United States. Momin v. Gonzales, 447 F.3d 447, reh'g granted and opinion , 462 F.3d 497 (5th Cir. 2006); Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 2005), cert. granted and judgment vacated, 548 U.S. 901 (2006).
In light of this split of authority, the...
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