CA7 affirms denial of withholding of removal to Mexico and CAT relief; BIA fact-finding as to state-court conviction was harmless

Posted on April 20, 2017 by Mike Baker

Delgado-Arteaga v. Sessions, No. 16-1816 (7th Cir. 2017)

Record contained sufficient evidence to support IJ’s order denying alien’s application for withholding of removal to Mexico, where said denial was based, in part, on finding that alien’s prior Illinois drug trafficking conviction qualified as “particularly serious crime,” and that alien had failed to establish either that his prior conviction did not have adverse effect on juveniles or that alien played only peripheral role in his drug-trafficking conviction. Ct. rejected alien’s claim that Bd. erred by not referring his appeal to three-member panel, where Ct. found that single Bd. member had discretion to refer alien’s case to three-member panel. While Ct. further found that Bd. had erred in engaging in fact-finding when affirming IJ’s conclusion that alien’s state-court conviction qualified as particularly serious crime, alien did not establish any prejudice where other evidence found by IJ sufficiently supported IJ’s conclusion.

Delgado, a citizen of Mexico, entered the U.S. without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver and sentenced to six months’ imprisonment. In 2015, DHS initiated removal proceedings. More than seven years and three petitions later, the Board of Immigration Appeals affirmed an IJ’s denial of withholding of removal, 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. 1208.16(c). Delgado challenged aspects of the expedited removal process under 8 U.S.C. 1228(b) and a corresponding regulation and claimed that the Board committed various legal errors. The Seventh Circuit dismissed Delgado’s petition for review in part for lack of jurisdiction. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” The court denied the remainder of his arguments. The Board engaged in impermissible fact-finding, but the error was harmless.

_________________________________
JESUS DELGADO-ARTEAGA, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 16-1816

United States Court of Appeals, Seventh Circuit.
Argued November 29, 2016.
Decided March 23, 2017.

Melissa Lynn Neiman-Kelting, for Respondent.

Daniel W. Thomann, for Petitioner.

Anna E. Juarez, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A089-281-390.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge.

Over seven years and three petitions later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado-Arteaga (“Delgado”), petitions for review of an order of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.F.R. § 1208.31(g)(2)(i). He also claims that the Board committed various legal errors. For the following reasons, we dismiss the petition for review in part for lack of jurisdiction and deny the remainder of his petition for review.

I. BACKGROUND.

Delgado, a native and citizen of Mexico, entered the United States without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver in violation of 720 Ill. Comp. Stat. § 570/401(c)(2). He was sentenced to six months’ imprisonment with two years of probation.[1]

On March 3, 2015, the Department of Homeland Security, initiated expedited removal proceedings pursuant to 8 U.S.C. § 1228(b). See 8 C.F.R. § 238.1 (setting forth procedures). DHS served Delgado a Notice of Intent, charging that Delgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). On March 16, 2015, DHS issued a Final Administrative Removal Order (“FARO”), finding Delgado deportable as charged and ordering that he be removed to Mexico. Delgado expressed a fear of returning to Mexico to a DHS officer who then referred him to the Chicago Asylum Office for a reasonable fear interview.

On March 31, 2015, an asylum officer interviewed Delgado with his attorney present. On April 15, 2015, the asylum officer found that Delgado was credible, but concluded that he did not establish a reasonable fear of persecution or torture in Mexico. Delgado requested that an IJ review the asylum officer’s negative decision. After a review, the IJ found that Delgado had established a reasonable possibility that he would be persecuted or tortured in Mexico. Accordingly, on April 30, 2015, the IJ vacated the asylum officer’s decision, and placed Delgado in “withholding-only” proceedings. See 8 C.F.R. § 1208.31(g)(2)(i). The IJ permitted Delgado to file an application for withholding of removal and relief under the CAT, which he filed on June 16, 2015. See id.

On August 5, 2015, the IJ held a hearing on the merits. Both Delgado and his wife testified in support of his applications. He argued that he had not been convicted of an aggravated felony and that he should have been allowed to apply for asylum under 8 U.S.C. § 1158. At the hearing, the IJ concluded that it was not authorized to review DHS’s determination that Delgado was convicted of an aggravated felony. The IJ ruled that Delgado was not eligible for asylum on two grounds: he was not permitted to apply for it in “withholding-only” proceedings; and, he was in removal proceedings pursuant to 8 U.S.C. § 1228(b). Thus, the IJ considered only Delgado’s applications for withholding of removal and relief under CAT.

On September 23, 2015, the IJ denied both applications. First, the IJ found that Delgado’s testimony and corroborating evidence was insufficient to meet his burden of proof under the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). Alternatively, the IJ concluded that even if Delgado established his burden of proof, the IJ would have denied Delgado’s application for withholding of removal because he had been convicted of a “particularly serious crime.” The IJ found that 720 Ill. Comp. Stat. § 570/401(c)(2) was categorically a “drug trafficking crime,” and thus, an illicit trafficking aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Because Delgado’s conviction was an aggravated felony, the IJ concluded it was presumed to be a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii).

The IJ noted that the Attorney General has determined that drug trafficking aggravated felonies “presumptively constitute” particularly serious crimes absent “extraordinary and compelling circumstances.” Y—-L—-, 23 I. & N. Dec. 270, 274 (BIA 2002); see Bosede v. Mukasey, 512 F.3d 946, 949-51 (7th Cir. 2008). In order to rebut this presumption, the applicant must establish that his conviction involved “(1) a very small quantity, (2) a very modest payment, (3) only peripheral involvement, (4) the absence of any violence or threat of violence, (5) the absence of any connection to organized crime or terrorism, and (6) the absence of any adverse or harmful effect on juveniles.” Bosede, 512 F.3d at 951 (citing Y—-L—-, 23 I. & N. Dec. at 276-77). If the applicant satisfies all six criteria, the applicant must also show “other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit).” Id. (quoting Y—-L—-, 23 I. & N. Dec. at 277).

The IJ held that Delgado’s conviction was a “particularly serious crime” because Delgado failed to meet the factors as required under Matter of Y—-L—-. Specifically, the IJ found that Delgado failed to show that his conviction did not have an adverse effect on juveniles because Delgado lived with a nine-year-old child. The IJ also found that Delgado failed to establish a peripheral role in his drug-trafficking conviction. Lastly, even if Delgado met his burden under Matter of Y—-L—-, the IJ concluded that it would have denied the application because Delgado did not show it was more likely than not that he would face persecution in Mexico.

Delgado appealed to the Board, and requested review by a three-member panel. He challenged essentially every aspect of the IJ’s decision. Additionally, he argued that the IJ incorrectly declined to consider an asylum application because 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires.

On March 14, 2016, a single-member Board adopted and affirmed the IJ’s decision, and entered an order dismissing Delgado’s appeal. The Board declined to consider Delgado’s argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires, reasoning that it lacked authority to make such a ruling. The Board concluded that the IJ properly found that Delgado’s aggravated felony conviction presumptively constituted a “particularly serious crime.” The Board explicitly agreed with the IJ’s finding that Delgado failed to establish that he had only peripheral involvement in his drug-trafficking conviction. In addition, the Board found that Delgado failed to establish two other requirements under Matter of Y—-L—-: that his conviction was not connected to any organized crime; and, that the drugs were to be distributed solely for social purposes. A motion to reconsider was denied. Thereafter, Delgado filed this petition for review.

II. DISCUSSION.

Generally, we lack jurisdiction to review denials of discretionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(B); Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016). “But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review.” Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir. 2016) (citation omitted). Where, as here, the Board adopts and affirms the IJ’s decision and provides its own analysis, we review both decisions. Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

First, Delgado contends that DHS lacks legal authority to issue removal orders on behalf of the Attorney General pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires removal orders be issued by IJs. Second, he argues that he should have been permitted to apply for asylum under 8 U.S.C. § 1158 because the regulation at 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires. Lastly, he argues that the Board committed various legal errors and failed to follow its procedures when adjudicating his case, such as failing to refer the case to a three-member panel, engaging in improper factfinding, and overlooking his arguments on appeal.

A. No Jurisdiction to Review Challenges to the Expedited Removal Process

Delgado challenges DHS’s FARO dated March 16, 2015, arguing that DHS lacked legal authority to order Delgado’s removal under 8 U.S.C. § 1228(b), and that the plain language of § 1228(b) requires that final orders of removal be issued by IJs.

We need not address these claims because Delgado’s challenges to DHS’s removal order were rendered moot when the IJ vacated DHS’s FARO and, ultimately, ordered his removal. Article III limits our review to “Cases” and “Controversies,” and an “actual controversy” must exist through all stages of review. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “[I]f an event occurs . . . that makes it impossible for the court to grant `any effectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (citation omitted). A case becomes moot “when the issues presented are no longer `live’ or the parties lack a legally cognizable interest in the outcome.” Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (citation omitted).

Here, no live case or controversy exists because we cannot grant any effectual relief to Delgado. He asks that we overturn DHS’s FARO and remand for further proceedings before an IJ; in other words, Delgado asks that we overturn an already vacated order. Assuming that it were possible to grant such relief, it remains true that the IJ issued the final removal order, not DHS. As a result, the case is moot and we lack jurisdiction to review this challenge.

Lastly, we note that the jurisdictional problem here is further highlighted when considering the Tenth Circuit’s decision in Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033-35 (10th Cir. 2016). There, the petitioner brought an identical challenge, but it failed on the merits. Despite the same arguments, there is one critical factual difference: the petitioner in Osuna-Gutierrez was ordered removed by DHS, whereas Delgado was ordered removed by an IJ. This difference shows how the issue presented by Delgado is no longer “live.” While it is tempting to fall in line with the Tenth Circuit, this factual difference precludes us from reaching the merits. Because there is no case or controversy, we must dismiss Delgado’s challenge for lack of jurisdiction.

B. No Jurisdiction to Review Challenge to 8 C.F.R. § 1208.31(g)(2)(i)

Next, Delgado contends that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires because it impermissibly precluded him from applying for asylum under 8 U.S.C. § 1158(a)(1). He claims that § 1158 permits all aliens to apply for asylum regardless of whether the alien is subject to administrative removal under § 1228(b). In other words, Delgado claims that he was “injured” when the regulation denied him the opportunity to apply for asylum.

We lack jurisdiction to review this challenge because Delgado cannot meet the injury-in-fact element required for standing. To establish an injury in fact, Delgado must show that he “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citation and quotation marks omitted).

Delgado cannot claim he suffered an “invasion of a legally protected interest” when 8 C.F.R. § 1208.31(g)(2)(i) precluded him from applying for asylum. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); see Ali v. Ashcroft, 395 F.3d 722, 732 (7th Cir. 2005) (noting “denial of such relief does not implicate due process”). Because Delgado fails to establish an injury in fact, he lacks standing to challenge § 1208.31(g)(2)(i). Therefore, we dismiss this challenge for lack of jurisdiction.

C. Challenges to the Board’s Decision and Procedures

1. Three-Member Panel

Delgado argues that the Board erred by not referring his case to a three-member panel. A single member may take “advantage of the streamlined procedures found in 8 C.F.R. §§ 1003.1(e)(4), (e)(5) for routine cases that can be processed quickly.” Joseph v. Holder, 579 F.3d 827, 832 (7th Cir. 2009). The regulations give a single member discretion to refer an appeal to a three-member panel under six different circumstances, but referral is not required. 8 C.F.R. § 1003.1(e)(6) (listing circumstances); see Ward v. Holder, 632 F.3d 395, 398-99 (7th Cir. 2011) (noting “discretion . . . is left to the panel member assigned to the case”). In Ward, we were unable to find that the Board “violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three.” 632 F.3d at 399. Like the single member in Ward, the single member here had the discretion to refer the appeal to a three-member panel, but did not do so. Delgado fails to demonstrate that the Board violated the review procedures as set forth in 8 C.F.R. § 1003.1(e).

2. Improper Fact-Finding

Next, Delgado contends that the Board violated 8 C.F.R. § 1003.1(d)(3)(iv) by engaging in improper fact-finding when it affirmed the IJ’s conclusion that Delgado was convicted of a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii). “An argument that the Board has exceeded the scope of review permissible under [8 C.F.R. § 1003.1(d)(3)(iv)] is a legal one, for the purpose of § 1252(a)(2)(D).” Rosiles-Camarena v. Holder, 735 F.3d 534, 536 (7th Cir. 2013). The regulation provides that “[e]xcept for taking administrative notice of commonly known facts . . ., the Board will not engage in factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see Estrada-Martinez v. Lynch, 809 F.3d 886, 894 (7th Cir. 2015) (“The Board must not find facts in the first instance. . . .”); Lin v. Holder, 630 F.3d 536, 545 (7th Cir. 2010) (“[T]he Board is not permitted to engage in fact-finding on appeal.”).

Delgado argues that the Board impermissibly found that Delgado failed to establish two additional requirements under Matter of Y—-L—-: the absence of organized crime involvement and “other, more unusual circumstances” (i.e., drugs were to be distributed solely for social purposes). See Y—-L—-, 23 I. & N. Dec. at 276-77. In response, the government does not dispute Delgado’s argument, but claims that the Board’s additional fact-finding was harmless error.

We agree with Delgado that the Board exceeded the permissible scope of review when it made the two findings at issue in the first instance. Nonetheless, Delgado fails to show that he was prejudiced by the Board’s impermissible factfinding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010); Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must show that the alleged error “may have had the potential to change the outcome of the hearing” (citation omitted)). Here, the Board adopted the IJ’s decision, and explicitly agreed with the IJ’s finding that Delgado did not establish that he had only peripheral involvement in the drug-trafficking conviction. By adopting the IJ’s decision, the Board also agreed with the IJ’s finding that Delgado failed to show that his conviction did not have an adverse effect on a juvenile. Despite the Board’s impermissible fact-finding, Delgado still fails to satisfy two factors under Matter of Y—-L—-. He did not show how he was prejudiced.

3. Arguments to the Board

Delgado argues that the Board overlooked and failed to consider his arguments on appeal. “A claim that the [Board] has completely ignored the evidence put forth by a petitioner is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512 (quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). This includes a claim that the Board “failed to exercise discretion at all by completely ignoring an argument.” Iglesias, 540 F.3d at 530-31. Although the Board “does not have to write an exegesis on every contention, it must consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. at 531. “We have frequently remanded cases when the BIA’s or the IJ’s failure to discuss potentially meritorious arguments or evidence calls into question whether it adequately considered th[ose] arguments.” Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007) (collecting cases).

Delgado lists, as we have done similarly here, several arguments that he claims were ignored by the Board: (1) his request for a three-member panel in his appeal to the Board; (2) that the IJ failed to properly develop the record; (3) that the IJ conducted an incorrect “pattern or practice” analysis under 8 C.F.R. § 1208.16(b)(2)(i); and, (4) his argument concerning an unpublished Board decision concerning Florida state law (the Board addressed and rejected this last argument).

Delgado’s claim, alone, that the Board “completely ignored” an argument, does not sufficiently “enable a reviewing court” to determine whether that argument is “potentially meritorious.” “[I]t is not the work of this Court to formulate arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435, 447-48 (7th Cir. 1998), nor will we attempt to do so here. “[F]ailure to adequately develop and support these arguments results in waiver.” Lin, 630 F.3d at 543. Delgado’s challenge is perfunctory; he simply lists these arguments one-by-one, without any explanation. Therefore, we will consider these arguments waived.

III. CONCLUSION.

For the foregoing reasons, we DISMISS Delgado’s petition for review in part for lack of jurisdiction and DENY the remainder of his petition for review.

[1] In 2010, Delgado was subject to removal proceedings pursuant to 8 U.S.C. § 1229a, but those proceedings were terminated. He filed a petition with this Court, objecting to the termination of the § 1229a proceedings. Once DHS initiated proceedings under § 1228(b), Delgado filed a motion for voluntary dismissal of his first petition, which this Court granted. Delgado v. Lynch, 14-3127 (7th Cir. April 15, 2015). He filed a second petition with this Court after he was issued the Final Administrative Removal Order, but before he completed the reasonable fear interview. The government filed a motion to dismiss the petition, which we granted because the FARO was not “final” for purposes of our review. Delgado v. Lynch, 15-1810 (7th Cir. Aug. 7, 2015).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, particularly serious crime, withholding of removal | Leave a comment

CA7 upholds Dist. Ct. dismissal of appeal under Administrative Procedure Act seeking to review denial of visa application

Posted on April 20, 2017 by Mike Baker

Morfin v. Tillerson, No. 15-3633 (7th Cir. 2017)

Dist. Ct. did not err in dismissing plaintiff-alien’s action under Administrative Procedure Act, seeking to review denial of visa application as part of his process to obtain permanent resident status, where consular official based said denial on belief that plaintiff had been involved in drug trafficking. Consular official gave legitimate reason for denying plaintiff’s visa application, and plaintiff’s indictment on drug charge supplied said official with reason to believe that plaintiff had trafficked in cocaine. As such, Dist. Ct. was prevented from reviewing instant denial under Mandel, 408 U.S. 753.

Ulloa, a citizen of Mexico, married Morfin, a U.S. citizen. Morfin sought approval for his permanent residence, but Ulloa was present in the U.S. without authority and was required to return to Mexico to obtain a visa for lawful entry. He applied at the consulate in Juarez. After twice interviewing Ulloa, the State Department denied him a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. The U.S. Attorney dismissed the indictment and Ulloa denies the charge, but he lacks a favorable adjudication. The couple sued under the Administrative Procedure Act, 5 U.S.C. 702, alleging that the denial was arbitrary and not supported by substantial evidence. The district court found that it lacked jurisdiction because decisions on visa applications are committed to agency discretion and are outside the scope of judicial review under the APA. The Seventh Circuit affirmed. While the APA does not curtail jurisdiction granted by other laws, the consular officer gave a legitimate reason for denying Ulloa’s application. Precedent prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support the denial of a visa application is not a question open to review by the judiciary.

_____________________________
ESMERALDA Y. MORFIN and ADRIAN ULLOA, Plaintiffs-Appellants,
v.
REX W. TILLERSON, Secretary of State, and JOHN F. KELLY, Secretary of Homeland Security, Defendants-Appellees.
No. 15-3633.

United States Court of Appeals, Seventh Circuit.
Argued December 2, 2016.
Decided March 20, 2017.

Craig A. Oswald, for Defendant-Appellee.

Justin R. Burton, for Plaintiff-Appellant.

Charles Roth, for Plaintiff-Appellant.

Stacey I. Young, for Defendant-Appellee.

Devin Theriot-Orr, for Amicus Curiae.

Robert Pauw, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 10198 — John Z. Lee, Judge.

Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 2009 Adrian Ulloa, a citizen of Mexico, married Esmeralda Morfin, a citizen of the United States. She began the process of getting approval for his permanent residence (and ultimately citizenship). But because Ulloa was present in the United States without authority, this process required him to return to Mexico and obtain a visa for a lawful entry. In 2014 he applied at the consulate in Ciudad Juarez. After twice interviewing Ulloa, the State Department denied his request for a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. See 21 U.S.C. §841(a)(1). The U.S. Attorney dismissed the indictment a few months later (the record does not show why), and Ulloa denies the charge, but the absence of a trial means that he lacks a favorable adjudication.

In this suit under the Administrative Procedure Act, 5 U.S.C. §702, Morfin and Ulloa asked the district court to find that the decision not to give Ulloa a visa is arbitrary and not supported by substantial evidence. Defendants (the Secretaries of State and Homeland Security) replied that decisions to grant or deny visa applications are committed to agency discretion and so are outside the scope of judicial review under the APA. See 5 U.S.C. §701(a)(2). The district court agreed and dismissed the suit for lack of subject-matter jurisdiction. That was a misstep. As we explain in Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017), §701(a)(2) does not curtail jurisdiction granted by other laws. Commitment of a topic to agency discretion is a reason to decide in the agency’s favor but does not imply that a court lacks adjudicatory competence. We concluded in Builders Bank that §701(a)(2) “is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.” 846 F.3d at 275.

But the fact remains that for more than a hundred years courts have treated visa decisions as discretionary and not subject to judicial review for substantial evidence and related doctrines of administrative law. See Kleindienst v. Mandel, 408 U.S. 753, 765-70 (1972) (collecting cases). Mandel recognized a potential exception for situations in which denial of a visa violates the constitutional rights of a U.S. citizen (in Mandel the right was the First Amendment), and Morfin tries to take advantage by contending that the rejection of Ulloa’s application violated her right to due process of law under the Fifth Amendment. A similar line of argument was advanced in Kerry v. Din, 135 S. Ct. 2128 (2015), and did not prevail. The district judge concluded that Din forecloses Morfin’s contention.

Before considering Din we must say a few words about Mandel. The Court concluded that the First Amendment creates at least a conditional right of U.S. citizens to receive information, in this country, from foreign nationals. But the Justices did not find this a sufficient reason for the judiciary to make an independent decision about when a foreign national is entitled to a visa. Instead the Court reaffirmed earlier opinions saying that Congress has plenary authority to exclude particular categories of aliens. The possibility of an exception for speech arose only because Congress had authorized the Attorney General to waive some speech-related conditions of excludability. The Justices did not decide whether review of a decision not to waive a condition of inadmissibility ever would be proper. They thought the final decision on that subject unnecessary because the Attorney General had informed “Mandel’s counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.” 408 U.S. at 769. The Court wrapped up:

We hold that when the Executive exercises this [waiver] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 770. That holding set the stage for Din, in which the plaintiffs tried to find a constitutional theory that would not require the judiciary to look behind the Executive Branch’s reasons for denying a visa.

Fauzia Din, a citizen of the United States, married Kanishka Berashk, a citizen of Afghanistan. After the State Department denied Berashk’s application for a visa to enter this nation, Din filed suit. She contended that the Department had violated her right under the Due Process Clause of the Fifth Amendment to live with her husband, at least without a formal hearing to determine whether Berashk was excludable. Recognition of such a right would have avoided any need for the judiciary to review the substance of the State Department’s decision. But a majority of the Court ruled against Din. Three members (the Chief Justice plus Justices Scalia and Thomas) concluded that the Fifth Amendment does not apply, because a citizen has neither a liberty nor a property interest in an alien’s presence in the United States. 135 S. Ct. at 2131-38. Four members (Justices Ginsburg, Breyer, Sotomayor, and Kagan) disagreed with that reading of the Fifth Amendment and concluded that a U.S. citizen is entitled to an administrative procedure at which she can test the accuracy of allegations or beliefs that lead the State Department to deny her spouse a visa. 135 S. Ct. at 2141-47.

The Court’s other two members (Justices Kennedy and Alito) thought that they did not have to decide whether the U.S. spouse has a liberty or property interest, because the case could be resolved in the same way as Mandel: with a conclusion that judges will not go behind apparently legitimate explanations. 135 S. Ct. at 2139-41. The State Department had revealed the basis of its decision—that Berashk was a terrorist excluded by 8 U.S.C. §1182(a)(3)(B). The Department had not set out facts supporting this view, but Justices Kennedy and Alito thought that unnecessary (135 S. Ct. at 2140):

The provisions of §1182(a)(3)(B) establish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), it follows that the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

Justices Kennedy and Alito considered the possibility that a groundless decision might fall outside the set of “facially legitimate and bona fide” reasons but wrote that the exclusion of Berashk could not be so classified, for he conceded working as an officer of the Taliban government when that group ruled Afghanistan.

[This] provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.

135 S. Ct. at 2141.

The district court found that Din forecloses Morfin’s claim, and we agree with that conclusion. Morfin advances the same due process argument as Din. Whether the denial of Ulloa’s visa application affected any of Morfin’s liberty or property interests is unresolved after Din, because Justices Kennedy and Alito did not address that subject. Instead they left things as Mandel had left them—and the opinion in Mandel spoke for a majority of the Court, sparing us the need to determine how to identify the controlling view in Din given that the concurring opinion is not a logical subset of the lead opinion (or the reverse). See Marks v. United States, 430 U.S. 188 (1977). Mandel tells us not to go behind a facially legitimate and bona fide explanation.

The consular officer in Ciudad Juarez gave Ulloa a facially legitimate and bona fide explanation. The officer relied on 8 U.S.C. §1182(a)(2)(C), which disqualifies “[a]ny alien who the consular officer or the Attorney General knows or has reason to believe—(i) is or has been an illicit trafficker in any controlled substance”. The State Department cited this provision when denying Ulloa’s application, just as it had cited §1182(a)(3)(B) when denying Berashk’s. And just as in Din, the record forecloses any contention that the State Department was imagining things. Ulloa had been indicted for possessing a substantial quantity of cocaine with intent to distribute.

All §1182(a)(2)(C) requires is “reason to believe” that the applicant is or was a drug dealer. An indictment provides a “reason to believe” that its accusation is true; indeed, it conclusively establishes probable cause to believe that the accusation is true. That’s why Kaley v. United States, 134 S. Ct. 1090 (2014), holds that a federal court cannot go behind the face of the indictment to explore a defendant’s contention that the charge is not based on probable cause. The question in Kaley was whether the defendant could deny the charge of the indictment and so free up resources for paying counsel, resources that otherwise would be sequestered as the proceeds of crime. The Court said no; the indictment is conclusive on the question whether there is probable cause to believe that the accused committed the charged acts. Likewise a federal court will not go behind the face of an indictment when an alien seeks to undermine the State Department’s reasons for denying a visa.

Perhaps the refusal to issue Ulloa a visa could be said to lack a “facially legitimate and bona fide reason” (in Mandel’s words) if the consular official had concluded that the indictment’s charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider. But neither his complaint nor his appellate brief makes such an argument.

Because the consular officer gave a legitimate reason for denying Ulloa’s application, and the indictment supplies “reason to believe” that he trafficked in cocaine, Mandel prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support (indeed, compel) the denial of a visa application is not a question open to review by the judiciary. The district court’s judgment is modified to reject plaintiffs’ claim on the merits rather than for lack of jurisdiction and as so modified is

AFFIRMED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Consular non-reviewability, Consular Nonreviewability Doctrine | Leave a comment

CA7 affirms rejection of mandamus petition seeking review of denial of visa application by consular official

Posted on April 20, 2017 by Mike Baker

Yusev v. Sessions, No. 16-1338 (7th Cir. 2017)

Dist. Ct. did not err in dismissing plaintiff-aliens’ petition for writ of mandamus seeking review of denial of plaintiff’s visa application by consular official during plaintiff’s process of becoming permanent resident. Consular official denied said application on ground that plaintiff had committed crime of moral turpitude, had been previously removed from U.S., and had personally engaged in terrorists activity that consisted of rock-throwing incident when plaintiff was 13 years old. Ct. could not review instant denial under consular nonreviewability doctrine, where consular based denial on facially legitimate and bona fide reason. Ct. further noted that there was nothing in record to suggest that visa was denied for constitutionally troublesome reason such as religious discrimination, or that consular official was proceeding in bad faith.

Hazama, a U.S. citizen, is married to Ghneim, a citizen of the Palestinian Authority, currently residing there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed a Petition for Alien Relative with USCIS, which was approved in 2011. Ghneim still had to wait until a visa number became available and had to appear for an interview with a consular officer. Ghneim appeared for his interview at the Jerusalem Consulate in 2013. The officer denied the application, citing: the commission of a crime of moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I); previous removal from the U.S., section 1182(a)(9)(A)(ii); and unlawful presence in the U.S., section 1182(a)(9)(B)(i)(II). Ghneim’s petition for a waiver of the “previously removed” and “unlawful presence” grounds was denied. In 2015, an officer again denied Ghneim’s application, for having personally engaged in terrorist activities, 8 U.S.C. 1182(a)(3)(B)(i). The district court found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. The Seventh Circuit affirmed, rejecting their mandamus petition. The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the U.S.. Congress delegated broad power to the Executive Branch to decide who will have the privilege of entering; courts generally have no authority to second-guess those decisions.

____________________________________________
SAMIRA HAZAMA and AHMED ABDEL HAFIZ GHNEIM, Plaintiffs-Appellants,
v.
REX W. TILLERSON, Secretary of State, et al., Defendants-Appellees.
No. 15-2982.

United States Court of Appeals, Seventh Circuit.
Argued December 2, 2016.
Decided March 20, 2017.

Craig A. Oswald, for Defendant-Appellee.

Charles Roth, for Amicus Curiae.

Durwood H. Riedel, for Defendant-Appellee.

Julie Ann Goldberg, for Plaintiff-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 15 C 4002—Milton I. Shadur, Judge.

Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

WOOD, Chief Judge.

In an effort to seek judicial review of a consular official’s unfavorable decision on a visa application, Samira Hazama and Ahmed Abdel Hafiz Ghneim filed a petition for a writ of mandamus in the district court for the Northern District of Illinois, where Hazama resides. The district court concluded that it lacked subject-matter jurisdiction over the petition, because it thought that review was precluded under the Supreme Court’s decisions in Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015). The district court was correct that this case cannot go forward, but mistaken to think that the problem was jurisdictional. In Morfin v. Tillerson, No. 15-3633, decided today, we concluded that plaintiff loses on the merits. The same result is proper here, both for the reasons stated in Morfin and because the criteria for mandamus relief have not been met. See United States v. Vinyard, 529 F.3d 589, 591 (7th Cir. 2008) (mandamus proper only if the order would inflict irreparable harm, is not effectively reviewable at the end of the case, and so far exceeds the bounds of judicial discretion that it is usurpative, in violation of a clear and indisputable legal right, or patently erroneous).

Hazama is a U.S. citizen; she is married to Ghneim, who is a citizen of the Palestinian Authority and currently resides there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Service of the Department of Homeland Security (USCIS). Her petition was approved by USCIS on August 25, 2011, but that alone did not assure Ghneim’s right to immigrate to the United States. First, he had to wait until a visa number became available, then (while still outside the country) he had to appear for an interview with a consular officer, and ultimately he had to file form I-485, the Application to Register Permanent Residence or Adjust Status.

Ghneim never made it to the end of the line. He showed up for his interview at the U.S. Consulate in Jerusalem on January 24, 2013. The consular officer denied the application for three reasons: the commission of a crime of moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I); previous removal from the United States, id. § 1182(a)(9)(A)(ii); and unlawful presence in the United States, id. § 1182(a)(9)(B)(i)(II). Ghneim tried to address these grounds, but his petition for a waiver of the “previously removed” and “unlawful presence” grounds was ultimately denied. In the meantime, on January 22, 2015, a consular officer again denied Ghneim’s application, this time for having personally engaged in terrorist activities. See 8 U.S.C. § 1182(a)(3)(B)(i).

Hazama and Ghneim filed the present Complaint for Writ of Mandamus on May 5, 2015. In it, they attack only the terrorism ground for denying the visa. The omission of the other three grounds is perplexing, because it would do little good to set aside one ground if there are three alternate grounds for upholding the agency’s decision. Their choice may reflect the assumption that the three omitted grounds may be waivable. We do not know, and in light of our disposition of the appeal, we need not inquire further. For present purposes we confine ourselves to the applicability of the terrorism ground to Ghneim.

The Complaint also seeks declaratory and injunctive relief under the Administrative Procedure Act, based on the government’s alleged failure to adjudicate Ghneim’s application. Finally, it asserts that the refusal was not facially legitimate and bona fide. The government moved to dismiss, both for lack of subject-matter jurisdiction and for failure to state a claim. The district court held a hearing on the government’s motion on August 26, 2015, but despite her awareness that the court had scheduled this hearing—reflected in her effort on August 20 to seek a postponement—counsel for Hazama and Ghneim did not attend. In the end, however, counsel’s inability to attend made little difference. The district court, noting that the petitioners had relied heavily on the Ninth Circuit’s decision in Din and that the Supreme Court had vacated that ruling, found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. Hazama and Ghneim have appealed from that decision.

The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the United States. See Mandel, 408 U.S. at 762. Nothing in Din, which admittedly failed to produce an authoritative opinion of the Court, casts any doubt on that proposition. Congress has delegated broad power to the Executive Branch to decide who will have the privilege of entering. Id. at 770. In general, courts have no authority to secondguess the Executive’s decisions—rulings that are typically made by consular officers of the Department of State. See Samirah v. Holder, 627 F.3d 652, 662 (7th Cir. 2010).

That said, the Court has never entirely slammed the door shut on review of consular decisions on visas. The language in Mandel suggests at least two possible exceptions to the general norm of nonreviewability: “We hold that when the Executive exercises [the power to admit] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” 408 U.S. at 770 (emphasis added). In addition, as the final allusion to the First Amendment implies, some courts have held that if a visa denial affects the constitutional rights of American citizens, then it may be reviewable. Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016); see also Din, 135 S. Ct. at 2141-42 (dissenting opinion of Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., recognizing this right); Id. at 2139 (concurrence in judgment of Kennedy, J., joined by Alito, J., assuming arguendo that such a right exists).

Like the concurring Justices in Din, we can assume for the sake of argument that Hazama has enough of an interest in the grant of a visa to her husband that this case can go forward. Yet that assumption does nothing to meet her greater challenge, which is to show that the consular decision was not facially legitimate and bona fide. The act that prompted the consular officer to find that Ghneim had engaged in “terrorism” was admittedly minor, when compared with the worst terrorist acts one can imagine. As a 13-year-old boy in Palestine, Ghneim threw rocks at Israeli soldiers; the latter were armed with automatic rifles. Citing several other cases that involved rock-throwing, Hazama urges us to find that his actions were so inconsequential that they cannot suffice as a facially legitimate and bona fide reason for the visa denial. On one point we agree with her: this was a discretionary call, and it would not have been outside the consular officer’s discretion to consider this as an act of juvenile rebellion rather than an act of terrorism.

The Supreme Court has made it clear, however, that whatever residual authority the courts have to review these decisions cannot be triggered by every possible recharacterization of an act. Mandel, Din, and all of the earlier cases are premised on the non-reviewability of these decisions, and a recharacterization exception would open the door to plenary reviewability—most things, after all, are open to interpretation. The same problems would arise if we were to accept the suggestion of amicus curiae and adopt a rule under which we would examine whether the officer “properly construed and applied” the relevant provisions of law. All we can do is to look at the face of the decision, see if the officer cited a proper ground under the statute, and ensure that no other applicable constitutional limitations are violated. Once that is done, if the undisputed record includes facts that would support that ground, our task is over.

We found that additional support in Morfin, and we find it here as well. The consular officer in Jerusalem knew several things before making his decision: first, this particular act of rock-throwing took place in one of the least settled places in the world—a place where peace efforts have failed for 70 years; second, rocks are not benign objects—to the contrary, they can be lethal, as the barbaric practice of stoning illustrates; third, Ghneim did not deny that he had thrown the rocks; and fourth, Ghneim had several other blots on his record. Nothing here suggests that his visa was denied for a constitutionally troublesome reason such as religious discrimination, and so we have no need to consider how such a case should be approached. In addition, there is nothing in this record to suggest that the consular officers involved were proceeding in bad faith. At oral argument, Hazama’s lawyer asserted that the U.S. consulate in Jerusalem regularly prolongs its consideration of visa applications and denies those coming from citizens of the Palestinian Authority, but we have not taken this allegation into account in resolving this appeal, because it was not presented to the district court and (probably for that reason) there is no support in this record for a finding of the alleged systematic bias.

Finally, even if we were to find that Hazama was entitled to a reasoned explanation of the denial, she would still be out of luck. Ghneim, and so we assume Hazama, received a full explanation in a signed letter of a page and a half. The letter laid out all the grounds for refusal, explained why they applied, cited relevant precedent, and explained the agency review process. That was more than enough.

Hazama has raised several other points, but they all represent an effort to dilute or eliminate the consular nonreviewability doctrine, or they are procedural points that lay within the district court’s discretion. The fact that she cannot succeed under ordinary standards of appellate review demonstrates that her petition for mandamus must also fail. We therefore AFFIRM the judgment of the district court, with instructions that the judgment be modified to reflect that it rejects an adjudication on the merits, not for lack of subject-matter jurisdiction.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Consular non-reviewability, Consular Nonreviewability Doctrine, Mandamus | Leave a comment

CA7 upholds BIA denial of untimely Motion to Reopen based on ineffective counsel

Posted on April 20, 2017 by Mike Baker

YUSEV v. Sessions, Court of Appeals, 7th Circuit 2017

Bd. did not err in denying alien’s motion to reopen their applications for asylum and withholding of removal based on claim that their counsel was ineffective. Said motion was untimely, since it was filed more than 90 days from entry of removal order. Fact that Bd. had partially reopened case on date subsequent to removal order did not serve to extend relevant 90-day period for filing motion to reopen case. Moreover, aliens presented inadequate reason for filing late motion to reopen case, where: (1) aliens explained that reason for tardy motion was their investigation of instant ineffective assistance of counsel claim; and (2) aliens had only sent letter to their former counsel expressing their displeasure with his performance and sent complaint to ARDC during said investigation period. Also, aliens failed to present viable ineffective assistance of counsel claim where evidence that aliens claimed should have been presented to Bd. was only cumulative to evidence already before Bd.

The Yusevs, who overstayed their non-immigrant visas and have lived in the U.S. since 2005, asserted that they had been members of the United Macedonian Organization Ilinden, a banned party devoted to the rights of ethnic Macedonians. They testified about two occasions on which the police assaulted them and that the police came looking for them at their home in 2006 and were still looking in 2007. They submitted reports detailing Bulgaria’s poor treatment of Macedonians. An immigration judge denied relief, finding that they had missed the one-year deadline for filing an asylum application, 8 U.S.C. 1158(a)(2)(B), and that their tardiness was not excused by changed circumstances in Bulgaria or extraordinary circumstances. The judge denied their request for withholding and Convention Against Torture protection on the merits, finding that their experiences did not meet the test for past persecution, nor did they support a finding of likely persecution in the future. The BIA affirmed. Represented by new counsel, they moved to reopen the proceedings based on their first lawyer’s ineffectiveness. The Board found the motion untimely and rejected the argument that counsel’s ineffectiveness excused the delay. The Seventh Circuit rejected petitions for review, noting the Yusevs’ lack of diligence.

__________________________________
YUSEV v. Sessions, Court of Appeals, 7th Circuit 2017

PETAR B. YUSEV and KATERINA G. YUSEVA, Petitioners,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
Nos. 16-1338, 16-2242.

United States Court of Appeals, Seventh Circuit.
Argued February 21, 2017.
Decided March 23, 2017.

Daniel W. Thomann, for Petitioner.

Tim Ramnitz, for Respondent.

Jennifer A. Singer, for Respondent.

Petitions for Review of Orders of the Board of Immigration Appeals, Nos. A089-070-635 & A089-070-636.

Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

WOOD, Chief Judge.

Petar Yusev and his wife, Katerina Yuseva, have lived in the United States since 2005. They managed this by overstaying their initial one-year non-immigrant visas. On August 16, 2007, some 18 months after their initial entry, they applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). They are citizens of Bulgaria, since 2007 a Member State of the European Union, but they belong to its Macedonian minority and assert that they have been persecuted on that basis. First an immigration judge, and later the Board of Immigration Appeals (BIA or Board), turned down their requests. The petitions for review now before us challenge the Board’s refusal to reopen their case based on their attorney’s alleged ineffectiveness, and its refusal to reconsider the ruling on the motion to reopen. Finding no abuse of discretion in either of the Board’s decisions, we deny the petitions for review.

In their original petitions for asylum and related relief, the Yusevs asserted that they had been members of the United Macedonian Organization Ilinden (UMOI), a party devoted to the rights of ethnic Macedonians (though characterized by the Bulgarian Constitutional Court as a separatist party that could be, and was, banned). They testified about two occasions on which the police assaulted them. In addition, they asserted, the police came looking for them at their home in 2006 and were still looking as of 2007. They also submitted reports detailing Bulgaria’s poor treatment of Macedonians. An immigration judge (IJ) denied all relief in a 2013 decision. The judge found that they had missed the one-year deadline for filing an asylum application, 8 U.S.C. § 1158(a)(2)(B), and that their tardiness was not excused by changed circumstances in Bulgaria or other extraordinary circumstances, id. § 1158(a)(2)(D). The judge denied their request for withholding and CAT protection on the merits, finding that their experiences did not meet the test for past persecution, nor did they support a finding of likely persecution in the future. The BIA affirmed and denied their motion for reconsideration. See Yusev v. Lynch, 643 F. App’x 603 (7th Cir. 2016) (Yusev I).

While the Yusevs were pursuing their petition for review from the denial of their motion for reconsideration in Yusev I, they also were proceeding along a second track. Represented by their current counsel, Daniel Thomann, they filed a motion with the Board to reopen the proceedings based on their first lawyer’s ineffectiveness. The Board found the motion to reopen untimely, and it rejected the argument that counsel’s ineffectiveness excused the delay. Once again, the Yusevs filed a motion to reconsider, and once again, that motion was denied. They have now filed two petitions for review, one from the denial of reopening and one from the refusal to reconsider. Our review of both these decisions is deferential; we may grant relief only if the Board abused its discretion. Reyes-Cornejo v. Holder, 734 F.3d 636, 647 (7th Cir. 2013); El-Gazawy v. Holder, 690 F.3d 852, 857 (7th Cir. 2012).

We turn first to the Board’s denial of the motion to reopen filed by Attorney Thomann on September 1, 2015. This motion was based on the alleged ineffectiveness of the Yusevs’ prior counsel, Alexander Vrbanoff. Non-citizens facing removal are allowed to file one motion to reopen within 90 days of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). In the Yusevs’ case, the Board affirmed the original IJ’s decision ordering removal through an order dated April 7, 2015. Muddying the waters slightly is the fact that this was not the Board’s last word on their original appeal. Instead, on June 17, 2015, the Board partially reopened their case to reinstate the privilege of voluntary departure. It did so because Vrbanoff had forgotten to submit proof of their payment of a voluntary departure bond; they actually had paid, and so the Board corrected its earlier decision in this minor respect.

The Yusevs argue that their 90-day period for the motion to reopen did not begin running until June 17. If that were true, then their motion would have been timely, as it was filed on September 2, 2015. But that is not the way things work. In Sarmiento v. Holder, 680 F.3d 799 (7th Cir. 2012), we joined the Fifth and Ninth Circuits in holding that motions to reopen must be “filed within 90 days of the specific proceeding being challenged,” which here is the Board’s April 7, 2015 order affirming the IJ’s decision to require removal. Id. at 802 (emphasis added). That is the order to which the Yusevs object; they have no quarrel with the Board’s decision to reinstate voluntary departure on June 17. See also El-Gazawy, 690 F.3d at 859. If the Yusevs’ proposed rule were to be adopted, we might as well write the time limits out of the statute. Any petitioner wanting some extra time could just file a new motion to reconsider and have the clock reset. This is a position we cannot accept. As we noted in Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013), “an order from the BIA resolving everything except an issue relating to voluntary departure” qualifies as a final decision. Id. at 1001. The Board thus committed no error when it concluded that the September 2, 2015 motion to reopen was untimely.

That brings us to the question whether the Board abused its discretion in concluding that nothing excused the late filing. In principle, equitable tolling can excuse this kind of failure. Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir. 2008). One reason that might support equitable tolling is ineffective assistance of counsel. El-Gazawy, 690 F.3d at 859. But this is not easy to demonstrate in an immigration proceeding: whatever right to effective counsel exists is present only because of the immigration statutes, and ultimately the Due Process Clause of the Fifth Amendment to the U.S. Constitution; the more familiar Sixth Amendment right is inapplicable because it is limited to criminal proceedings.

Equitable tolling based on counsel’s performance requires, at a minimum, that the petitioner show that he exercised due diligence in seeking relief and that he suffered prejudice as a result of the lawyer’s deficient performance. Id. The due diligence requirement is satisfied if the petitioner can show that “he could not reasonably have been expected to file earlier.” Id. Prejudice is established if “the error likely affected the result of the proceedings.” Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir. 2007).

The Yusevs’ showing falls short on both these points. Through Attorney Thomann, they filed a motion to reconsider on May 8, 2015, 31 days after the Board’s April 7 decision. That motion briefly mentions that the Yusevs intended to pursue an ineffectiveness claim against Vrbanoff and that they were investigating the issue. This was too tentative to be of any help. Moreover, the only actions they eventually took toward this end were to send Vrbanoff a rather general letter expressing displeasure with his performance and to submit a complaint to the Illinois bar after the deadline for the motion to reopen had expired. The Board was not required to view this as the diligence it has a right to expect.

Their showing of prejudice was no better. The crux of their complaint against Vrbanoff was that he had failed to introduce additional evidence that they believe would have tipped the balance in their favor. Here is what they contend Vrbanoff should have added:

• State Department country reports for Bulgaria for 2005, 2006, and 2007

• Reports from the Bulgarian Helsinki Committee (a local human rights group) from 2007, 2013, and 2014

• A United Nations report from 2011

• A case from the European Court of Human Rights from 2005

These documents do no more than repeat the message that was already before the Board in the evidence that Vrbanoff did introduce. That message was that Macedonians are not a state-recognized ethnicity; that they are barred from forming ethnic pressure groups; and that they face discrimination as well as occasional police harassment. The Board’s April 7 decision reflects its awareness of these arguments and thus reinforces the fact that the absence of the “new” evidence did not prejudice the Yusevs.

Oddly, the Yusevs also argue that Vrbanoff was ineffective because he failed to argue that Bulgaria’s accession to the European Union in 2007 constituted a changed circumstance for the worse and thus supported their tardy claims. We have trouble taking this seriously, given the fact that citizens of every Member State of the European Union, including now Bulgaria, are free to move to any other State, see Romania and Bulgaria EU Migration Restrictions Lifted, BBC NEWS (Jan. 1, 2014), http://www.bbc.com/news/world-europe-25565302. They also enjoy the full panoply of rights under both the treaties underlying the EU and the European Human Rights Convention. In any event, there is no evidence that the situation in Bulgaria changed for the worse after its accession to the EU. The UMOI was banned in 2000, remained banned while Bulgaria was moving through the accession process, and is still outlawed today. The police have harassed Macedonians throughout the relevant period. The Board was well within its rights to reject this argument.

We have little to add with respect to the Yusevs’ motion to reconsider the Board’s denial of their untimely motion to reopen. As we noted earlier, we review this decision only for abuse of discretion. A motion to reconsider must alert the Board to additional legal arguments, a change in law, or something that was overlooked in its earlier decision. See In re O—-S—-G—-, 24 I. & N. Dec. 56 (BIA 2006); Khan v. Holder, 766 F.3d 689, 696 (7th Cir. 2014). The Yusevs’ motion did none of these things; it merely reiterated the points they had made in their earlier submissions. Nothing the Yusevs presented with the motion to reconsider the motion to reopen cured the defects to which the Board had pointed.

We end with a word about the Yusevs’ effort to attack the Board’s decision not to use a three-member panel in their case. We addressed and rejected this argument in Yusev I, where we noted that the relevant regulations “give Board members discretion to refer an appeal to a three-member panel in six different circumstances, but referral is not required.” 643 F. App’x at 603, (citing 8 C.F.R. § 1003.1(e)(6)); Ward v. Holder, 632 F.3d 395, 398-99 (7th Cir. 2011). The contention has not improved with time or reiteration. The Board did not abuse its discretion when it chose in this case to proceed with a single judge.

We have considered the other arguments the Yusevs have presented and find no merit in them. The petitions for review are therefore DENIED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Board of Immigration Appeals, ineffective assistance of counsel, Motions to Reopen | Leave a comment

USCIS Policy Manual Volume 7 – Adjustment of Status

Posted on March 20, 2017 by Mike Baker

USCIS Policy Manual

Current as of January 05, 2017

Volume 7 – Adjustment of Status

Part B – 245(a) Adjustment

Chapter 2 – Eligibility Requirements

A foreign national must meet certain eligibility requirements to adjust status to that of a lawful permanent resident (LPR).

INA 245(a) Adjustment of Status Eligibility Requirements
The applicant must have been: •Inspected and admitted into the United States; or •Inspected and paroled into the United States.
The applicant must properly file an adjustment of status application.
The applicant must be physically present in the United States.
The applicant must be eligible to receive an immigrant visa.
An immigrant visa must be immediately available when the applicant files the adjustment of status application^[1] See Part A, General Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)]. and at the time of final adjudication.^[2] See Part A, General Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.
The applicant merits the favorable exercise of discretion.^[3] See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

A. “Inspected and Admitted” or “Inspected and Paroled”

In 1960, Congress amended INA 245(a) and made adjustment of status available to any otherwise eligible applicant who has been “inspected and admitted or paroled” into the United States.^[4] As originally enacted, section 245(a) made adjustment available only to a foreign national who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, 217 (June 27, 1952). Admission as a bona fide nonimmigrant remained a requirement until 1960. See Pub. L. 86-648 (July 14, 1960). Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant. Since 1960, the courts, legacy Immigration and Naturalization Service, and USCIS have read the statutory language “inspected and admitted or paroled” as:

•Inspected and admitted into the United States; or

•Inspected and paroled into the United States.

This requirement must be satisfied before the foreign national applies for adjustment of status.^[5] See 8 CFR 245.1(b)(3). If an applicant has not been inspected and admitted or inspected and paroled before filing an adjustment application, the officer must deny the adjustment application.^[6] See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted INA 245 in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). See S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

The inspected and admitted or inspected and paroled requirement does not apply to the following foreign nationals seeking adjustment of status:

•INA 245(i) applicants; and

•Violence Against Women Act (VAWA) applicants.^[7] See INA 245(a).

Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States. ^[8] See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a). Certain special immigrants also meet this requirement.^[9] See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).

1. Inspection

Authority

Per delegation by the Secretary of Homeland Security, U.S. Customs and Border Protection (CBP) has jurisdiction over and exclusive inspection authority at ports-of-entry.^[10] See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.

Definition and Scope

Inspection is the formal process of determining whether a foreign national may lawfully enter the United States. Immigration laws as early as 1875 specified that inspection must occur prior to a foreign national’s landing in or entering the United States and that prohibited foreign nationals were to be returned to the country from which they came at no cost or penalty to the conveyor or vessel.^[11] See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917). Inspections for air, sea, and land arrivals are now codified in the INA, including criminal penalties for illegal entry.^[12] See INA 231-235 and INA 275. See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

To lawfully enter the United States, a foreign national must apply and present himself or herself in person to an immigration officer at a U.S. port of entry when the port is open for inspection.^[13] See 8 CFR 235.1(a). See Matter of S-, 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an foreign national’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See Ex Parte Saadi, 23 F.2d 334 (S.D. Cal. 1927). A foreign national who arrives at a port of entry and presents himself or herself for inspection is an applicant for admission. Through the inspection process, an immigration officer determines whether the foreign national is admissible and may enter the United States under all the applicable provisions of immigration laws.

As part of the inspection, the foreign national must:

•Present any and all required documentation, including fingerprints, photographs, other biometric identifiers, documentation of status in the United States, and any other requested evidence to determine the foreign national’s identity and admissibility; and

•Establish that he or she is not subject to removal under immigration laws, Executive Orders, or Presidential Proclamations.^[14] See INA 235(d). See 8 CFR 235.1(f)(1).

In general, if the foreign national presents himself or herself for questioning in person, the inspection requirement is met.^[15] See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), which held that a foreign national who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of INA 245(a); alternatively, a foreign national who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013). Nonetheless, if the foreign national enters the United States by falsely claiming U.S. citizenship, the foreign national is not considered to have been inspected by an immigration officer. In addition, the entry is not considered an admission for immigration purposes.^[16] See Reid v. INS, 420 U.S. 619, 624 (1975) (a foreign national who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or INA 212(a)(6)(C) today, and considered to have entered without inspection).

Inspection Outcomes

Upon inspection, the officer at the port of entry typically decides one of the following outcomes:

•The officer admits the foreign national;

•The officer paroles the foreign national;

•The officer allows the foreign national to withdraw his or her application for admission and depart immediately from the United States;^[17] See INA 235(a)(4).

•The officer denies the foreign national admission into the United States; or

•The officer defers the inspection to a later time at either the same or another CBP office or a port of entry.^[18] Deferred inspection is a form of parole. A foreign national who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].

2. Admission^[19] See INA 101(a)(13)(A). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See Section 301(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-575 (September 30, 1996). INA 101(a)(13)(B) clarifies that parole is not admission.

A foreign national is admitted if the following conditions are met: ^[20] See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”

•The foreign national applied for admission as an “alien” (foreign national) at a port of entry; and

•An immigration officer inspected the foreign national as an “alien” and authorized him or her to enter the United States in accordance with the procedures for admission.^[21] See 8 CFR 235.1(f)(1).

A foreign national who meets these two requirements is admitted, even if the foreign national obtained the admission by fraud.^[22] See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 291 (burden of proof). See Emokah v. Mukasey, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the foreign national may be inadmissible and removable. See INA 212(a)(6)(C) and INA 237(a)(1)(A). Likewise, the foreign national is admitted, even if the CBP officer performed a cursory inspection.

As long as the foreign national meets the procedural requirements for admission, the foreign national meets the inspected and admitted requirement for adjustment of status.^[23] See Matter of Quilantan, 25 I&N Dec. 289, 290 (BIA 2010). See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 245(a). The foreign national is not inadmissible as an illegal entrant under INA 212(a)(6)(A)(i). For more information on admissibility, see Volume 8, Admissibility [8 USCIS-PM]. Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee.

Notwithstanding, if the foreign national makes a false claim to U.S. citizenship or to U.S. nationality at the port of entry and an immigration officer permits the foreign national to enter the United States, the foreign national has not been admitted.^[24] See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (a foreign national who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under INA 101(a)(13)(A)). A U.S. citizen arriving at a port of entry is not subject to inspection; therefore, a foreign national who makes a false claim to U.S. citizenship is considered to have entered without inspection.^[25] See Reid v. INS, 420 U.S. 619, 624 (1975). See Matter of S-, 9 I&N Dec. 599 (BIA 1962). A foreign national who makes a false claim to U.S. citizenship is inadmissible for making the claim (INA 212(a)(6)(C)(ii)). The foreign national may also be inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and unlawful presence after previous immigration violations (INA 212(a)(9)(C)).

Similarly, a foreign national who entered the United States after falsely claiming to be a returning LPR is not considered to have been procedurally inspected and admitted because a returning LPR generally is not an applicant for admission.^[26] Such foreign nationals are inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(6)(A)(i) and INA 212(a)(9)(C). An LPR returning from a temporary trip abroad would only be considered to be seeking admission or readmission to the United States if any of the following factors applies:

•The LPR has abandoned or relinquished his or her LPR status;

•The LPR has been absent from the United States for a continuous period in excess of 180 days;

•The LPR has engaged in illegal activity after having departed the United States;

•The LPR has departed from the United States while under legal process seeking his or her removal from the United States, including removal proceedings under the INA and extradition proceedings;

•The LPR has committed an offense described in the criminal-related inadmissibility grounds, unless the LPR has been granted relief for the offense;^[27] See INA 212(a)(2). See INA 212(h) and INA 240A(a). or

•The LPR is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.^[28] See INA 101(a)(13)(C). See generally Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997). The foreign national who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and fraud and misrepresentation (INA 212(a)(6)(C)(i)). The foreign national may also be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(9)(C).

Evidence of Admission

An Arrival/Departure Record (Form I-94), including a replacement^[29] This will typically be documented by an approved Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document. when appropriate, is the most common document evidencing a foreign national’s admission.^[30] CBP or USCIS can issue a Form I-94, Arrival/Departure Record. If admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94. To obtain a paper version of an electronic Form I-94, visit the CBP Web site. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CBP may also be able to obtain a replacement Form I-94 from the CBP Web site without charge. Applicants may also obtain Form I-94 by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS. USCIS charges a fee for this service. The following are other types of documentation that may be accepted as proof of admission into the United States:

•Admission stamp in passport, which may be verified using Department of Homeland Security (DHS) systems;

•Employment Authorization Card (Form I-688A), for special agricultural worker applicants, provided it was valid during the last claimed date of entry on the adjustment application;

•Temporary Resident Card (Form I-688), for special agricultural workers or legalization applicants granted temporary residence, provided it was valid during the last claimed date of entry on the adjustment application; and

•Border Crossing Card (Form I-586 or Form DSP-150^[31] Form DSP-150 is issued by the Department of State.), provided it was valid on the date of last claimed entry.

When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record:^[32] See 8 CFR 235.1(h)(1)(i)-(v).

•A Canadian citizen admitted as a visitor for business, visitor for pleasure, or who was permitted to directly transit through the United States;

•A nonimmigrant residing in the British Virgin Islands who was admitted only to the United States Virgin Islands as a visitor for business or pleasure;^[33] See 8 CFR 212.1(b).

•A Mexican national admitted with a B-1/B-2 Visa and Border Crossing Card (Form DSP-150) at a land or sea port of entry as a visitor for business or pleasure for a period of 30 days to travel within 25 miles of the border; and

•A Mexican national in possession of a Mexican diplomatic or official passport.^[34] See 8 CFR 212.1(c).

In these situations, an applicant should submit alternate evidence to prove his or her inspection and admission to the United States. This may include a Border Crossing Card, plane tickets evidencing travel to the United States, or other corroborating evidence.

3. Parole

Authority

The Secretary of Homeland Security delegated parole authority to USCIS, CBP, and U.S. Immigration and Customs Enforcement (ICE).^[35] See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.

Definition and Scope

A foreign national is paroled if the following conditions are met:

•The foreign national is seeking admission to the United States at a port of entry; and

•An immigration officer inspected the foreign national as an “alien” and permitted the foreign national to enter the United States without determining whether the foreign national may be admitted into the United States.^[36] See INA 212(d)(5)(A).

A grant of parole is a temporary and discretionary act exercised on a case-by-case basis. Parole, by definition, is not an admission.^[37] See INA 101(a)(13)(B) and 212(d)(5)(A).

Paroled for Deferred Inspection^[38] See 8 CFR 235.2.

On occasion, CBP grants deferred inspection to arriving foreign nationals found inadmissible during a preliminary inspection at a port of entry. Deferred inspection is generally granted only after CBP:

•Verifies the foreign national’s identity and nationality;

•Determines that the foreign national would likely be able to overcome the identified inadmissibility by obtaining a waiver or additional evidence; and

•Determines that the foreign national does not present a national security risk to the United States.

The decision to defer inspection is at the CBP officer’s discretion.

If granted deferred inspection, CBP paroles the foreign national into the United States and defers completion of the inspection to a later time. A foreign national paroled for a deferred inspection typically reports for completion of inspection within 30 days of the deferral^[39] CBP generally issues a Notice to Appear 30 days after a foreign national’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP. to a CBP office with jurisdiction over the area where the foreign national will be staying or residing in the United States.^[40] CBP generally creates either an A-file or T-file to document the deferred inspection.

The grant of parole for a deferred inspection satisfies the “inspected and paroled” requirement for purposes of adjustment eligibility.^[41] See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under INA 245).

Urgent Humanitarian Reasons or Significant Public Benefit

DHS may parole a foreign national based on urgent humanitarian or significant public benefit reasons.^[42] See INA 212(d)(5). DHS may grant urgent humanitarian or significant public benefit parole only on a case-by-case basis.^[43] See INA 212(d)(5). Any type of urgent humanitarian, significant public benefit, or deferred inspection-directed parole meets the “paroled into the United States” requirement.^[44] Only parole under INA 212(d)(5)(A) meets this requirement.

Parole in Place: Parole of Certain Foreign Nationals Present Without Admission or Parole

A foreign national who is present in the United States without inspection and admission or inspection and parole is an applicant for admission.^[45] See INA 235(a). DHS can exercise its discretion to parole such a foreign national into the United States.^[46] See Legacy INS General Counsel Opinion 98-10, 1998 WL 1806685. In general, USCIS grants parole in place only sparingly.

The fact that a foreign national is a spouse, child, or parent of an active duty member of the U.S. armed forces, a member in the Selected Reserve of the Ready Reserve, or someone who previously served in the U.S. armed forces or the Selected Reserve of the Ready Reserve ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such a foreign national.

If DHS grants parole before the foreign national files an adjustment application, the foreign national meets the “inspected and paroled” requirement for adjustment. Parole in place does not permit approval of an adjustment application that was filed before the grant of parole.^[47] As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See 8 CFR 103.2(b)(1).

Parole in place does not relieve the foreign national of the need to meet all other eligibility requirements for adjustment of status and the favorable exercise of discretion.^[48] For example, parole does not erase any periods of prior unlawful status. Therefore, a foreign national who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to INA 245(c)(2) or INA 245(c)(8). For example, except for immediate relatives and certain other immigrants, a foreign national must have continuously maintained a lawful status since entry into the United States.^[49] See INA 245(c)(2). See Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4].

Conditional Parole

Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility.^[50] See INA 236(a)(2)(B). Neither the statute nor regulations deem a release on conditional parole equal to a parole under INA 212(d)(5)(A). Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007). See Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010). See Delgado-Sobalvarro v. Atty. Gen., 625 F.3d 782 (3rd Cir. 2010). See Cruz Miguel v. Holder, 650 F.3d 189 (2nd Cir. 2011).

Evidence of Parole

Evidence of parole includes:

•A parole stamp on the foreign national’s advance parole document;^[51] See Form I-512 or I-512L, Authorization for Parole of an Alien into the United States.

•A parole stamp in the foreign national’s passport; or

•An Arrival/Departure Record (Form I-94) endorsed with a parole stamp.^[52] See 8 CFR 235.1(h)(2). If a foreign national was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the foreign national may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the CBP Web site.

4. Commonwealth of the Northern Mariana Islands

A Commonwealth of the Northern Mariana Islands (CNMI) applicant who is granted parole meets the inspected and paroled requirement. On May 8, 2008, the Consolidated Natural Resources Act was signed into law, which replaced the CNMI’s prior immigration laws and extended most U.S. immigration law provisions to the CNMI for the first time in history.^[53] See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008). The transition period for implementation of U.S. immigration law in the CNMI began on November 28, 2009.

As of that date, all foreign nationals present in the CNMI (other than LPRs) became present in the United States by operation of law without admission or parole. In recognition of the unique situation caused by the extension of U.S. immigration laws to the CNMI, all foreign nationals present in the CNMI on or after that date who apply for adjustment of status are considered applicants for admission^[54] See INA 235(a)(1). to the United States and are eligible for parole.

Because of these unique circumstances, USCIS grants parole to applicants otherwise eligible to adjust status to serve as both an inspection and parole for purposes of meeting the requirements for adjustment. Under this policy, the USCIS Guam field office or the USCIS Saipan Application Support Center grants parole to an applicant otherwise eligible for parole and adjustment immediately prior to approving the adjustment of status application.

5. Temporary Protected Status^[55] See INA 244. See 8 CFR 244.

A foreign national who enters the United States without inspection and subsequently is granted temporary protected status (TPS) does not meet the inspected and admitted or inspected and paroled requirement.^[56] The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee. There is no legislative provision or history to suggest that Congress intended that recipients of TPS be eligible for adjustment.^[57] Under INA 245(a) or any other adjustment program.

USCIS’s approval of TPS confers lawful immigration status on the foreign national, but only for the stipulated time period and so long as the foreign national complies with all TPS requirements. Recipients of TPS must still meet the threshold requirement that a foreign national has been inspected and admitted or inspected and paroled in order to be eligible for adjustment of status. A grant of TPS does not cure a foreign national’s entry without inspection or constitute an inspection and admission of the foreign national.^[58] See Legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See Legacy INS General Counsel Opinion 93-59 , 1993 WL 1504006. See Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011).

If a foreign national under TPS departs the United States and is admitted or paroled upon return to a port of entry, the foreign national meets the inspected and admitted or inspected and paroled requirement provided the inspection and parole occurred before he or she filed an adjustment application. The applicant, however, must still meet all other requirements to be eligible for adjustment.

DHS has authority to admit rather than parole TPS beneficiaries who travel and return with TPS-related advance parole documents.^[59] See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, Pub. L. 102-232, 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-546 (September 30, 1996). For purposes of adjustment eligibility, it does not matter whether the TPS beneficiary was admitted or paroled. In either situation, once the foreign national is inspected at a port of entry and permitted to enter to the United States, the foreign national meets the inspected and admitted or inspected and paroled requirement.

6. Asylum^[60] See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].

An asylee whose adjustment application is based on his or her asylee status adjusts under INA 209(b).^[61] Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under INA 245(a). An asylee, however, may seek to adjust under INA 245(a) if the asylee prefers to adjust on a basis other than the asylee’s status. This may arise in cases where, for example, an asylee marries a U.S. citizen and subsequently seeks to adjust status as an immediate relative of a U.S. citizen rather than under the asylee provision. In order to adjust under INA 245(a), however, the asylee must meet the eligibility requirements that apply under that provision.

There may be circumstances where asylees are not able to meet certain requirements for adjustment under INA 245(a). For instance, a foreign national who enters without inspection and is subsequently granted asylum does not satisfy the inspected and admitted or inspected and paroled requirement.^[62] The grant of asylum is not an admission contemplated under INA 101(a)(13)(A). See Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). See Legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892. On the other hand, an asylee who departs the United States and is admitted or granted parole upon return to a port of entry meets the inspected and admitted or inspected and paroled requirement.

7. Waved Through at Port-of-Entry

In some cases, a foreign national may claim that he or she arrived at a port of entry and presented himself or herself for inspection as a foreign national, but the inspector waved (allowed to pass) him or her through the port of entry without asking any questions.

Where a foreign national physically presents himself or herself for questioning and makes no knowing false claim to U.S. citizenship, the foreign national is considered to have been inspected even though he or she volunteers no information and is asked no questions by the immigration authorities. Such a foreign national satisfies the inspected and admitted requirement of INA 245(a) as long as the foreign national sufficiently proves that he or she was indeed waved through by an immigration official at a port of entry.^[63] See Matter of Quilantan, 25 I&N Dec. 285, 291-92 (BIA 2010). See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). See 8 CFR 103.2(b).

An officer may find that an adjustment applicant satisfies the inspected and admitted requirement based on a claim that he or she was waved through at a port of entry if:

•The applicant submits evidence to support the claim, such as third party affidavits from those with personal knowledge of the facts stated in the affidavits and corroborating documentation; and

•The officer determines that the claim is credible.^[64] Any documentary evidence of admission should be consistent with entry information provided in the adjustment application or in oral testimony and should not contradict any other admission or departure evidence in DHS records. For example, when there is no Arrival/Departure Record or passport with an admission stamp, an officer may rely on information in DHS records, information in the applicant’s file, and the applicant’s testimony to make a determination on whether the applicant was inspected and admitted or inspected and paroled into the United States.

The burden of proof is on the applicant to establish eligibility for adjustment of status.^[65] See 8 CFR 103.2(b). See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9]. Accordingly, the applicant must support and sufficiently establish the claim that he or she was admitted as a foreign national and not as a presumed U.S. citizen. For example, if the applicant was in a car with U.S. license plates and with U.S. citizens onboard, the applicant should submit persuasive evidence to establish he or she physically presented himself or herself to the inspector and was admitted as a foreign national.^[66] For more information, see Subsection 2, Admission [7 USCIS-PM B.2(A)(2)].

B. Properly Filing an Adjustment Application

To adjust status, a foreign national must file an Application to Register Permanent Residence or Adjust Status (Form I-485) in accordance with the form instructions. The adjustment application must be properly signed and accompanied by the appropriate fee.^[67] See 8 CFR 103.2(a) and 8 CFR 103.2(b). See 8 CFR 103.2(a)(2). See 8 CFR 103.7(b) and 8 CFR 103.7(c). The applicant may submit a fee waiver request. See Form I-912, Request for Fee Waiver. The application must be filed at the correct filing location, as specified in the form instructions. USCIS rejects adjustment applications if the application is:

•Filed at an incorrect location;

•Not filed with the correct fee, unless granted a fee waiver;

•Not properly signed; or

•Filed when an immigrant visa is unavailable.^[68] See 8 CFR 103.2(a)(7) and 8 CFR 245.2(a)(2)(i). In addition, USCIS should process a fee refund when an adjustment application is accepted in error because a visa was unavailable at the time of filing and the error is recognized before interview or adjudication. For more information on the definition of “properly filed” and fee refunds, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions [7 USCIS-PM A.3].

C. Eligible to Receive an Immigrant Visa

1. General Eligibility for an Immigrant Visa

An adjustment applicant must be eligible to receive an immigrant visa. An applicant typically establishes eligibility for an immigrant visa through an immigrant petition in one of the categories listed in the table below.

Eligibility To Receive an Immigrant Visa
Immigrant Category	Petition	Who May Qualify
Family-Based	Petition for Alien Relative (Form I-130)	•Immediate relatives of U.S. citizens^[69] See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions. •Unmarried sons and daughters of U.S. citizens (21 years of age and older) •Spouses and unmarried children (under age 21) of LPRs •Unmarried sons and daughters of LPRs •Married sons and daughters of U.S. citizens •Brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older)
Family-Based Based	Petition for Alien Fiancé(e) (Form I-129F)	•Fiancé(e) of a U.S. citizen
Family-Based	Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)	•Widow or widower of a U.S. citizen •Violence Against Women Act (VAWA) self-petitioners
Employment-Based	Immigrant Petition for Alien Worker (Form I-140)	•Priority workers •Members of the professions holding an advanced degree or persons of exceptional ability; or •Skilled workers, professionals, and other workers
Employment-Based	Immigrant Petition by Alien Entrepreneur (Form I-526)	•Entrepreneurs
Special Immigrants	Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)	•Religious workers •Certain international employees •Panama Canal Zone employees •Certain physicians •International organization officers and employees •Special immigrant juveniles •Certain U.S. armed forces members •Certain broadcasters •Certain Afghanistan and Iraq nationals
Diversity Immigrant Visa^[70] Diversity visas do not rely on a USCIS-filed petition to obtain a visa. The diversity visa lottery is conducted by the Department of State.	Not applicable (Diversity visas do not require a USCIS-filed petition)	•Diversity immigrants

2. Dependents

The spouse and children of certain family-based, employment-based, and Diversity Immigrant Visa adjustment applicants may also obtain LPR status through their relationship with the principal applicant. Because the spouse and children do not have an independent basis to adjust status apart from their relationship to the principal immigrant, they are “dependents” of the principal for purpose of eligibility for adjustment of status.

Dependents do not have their own underlying immigrant petition and may only adjust based on the principal’s adjustment of status. In general, dependent applicants must have the requisite relationship to the principal both at the time of filing the adjustment application and at the time of final adjudication.^[71] See 8 CFR 103.2(b)(1).

3. Concurrent Filing

The immigrant petition establishing the underlying basis to adjust is typically filed before the foreign national files the adjustment application. In some instances, the applicant may file the adjustment application at the same time the immigrant petition is filed.^[72] See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].

D. Immigrant Visa Immediately Available at Time of Filing and at Time of Approval

In general, an immigrant visa must be available before a foreign national can apply for adjustment of status.^[73] See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed,” Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. An immigrant visa is always available to foreign nationals seeking adjustment as immediate relatives. Visas are numerically limited for most other immigrant categories eligible to adjust; applicants in these numerically limited categories may need to wait until a visa is available before they can file an adjustment application. Furthermore, an immigrant visa must be available for issuance on the date USCIS approves any adjustment application.^[74] See INA 245(a)(3). See 8 CFR 245.1(g)(1), 8 CFR 245.2(a)(5)(ii), and 8 CFR 103.2(b)(1). For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

E. Admissible to the United States

An adjustment of status applicant must be admissible to the United States.^[75] If one or more of the grounds listed in INA 212 applies to an applicant then the applicant may be inadmissible. For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM]. An applicant who is inadmissible may apply for a waiver of the ground of inadmissibility, if a waiver is available, or another form of relief. The applicable grounds of inadmissibility and any available waivers depend on the immigrant category under which the applicant is applying.^[76] See Volume 9, Waivers [9 USCIS-PM].

F. Bars to Adjustment of Status

An applicant may not be eligible to apply for adjustment of status if one or more bars to adjustment applies.^[77] See INA 245(c). The bars to adjustment of status may apply to foreign nationals who either entered the United States in a particular status or manner, or committed a particular act or violation of immigration law.^[78] Even if foreign nationals are barred from adjusting under INA 245(a), they may still adjust under another statutory basis as long as they meet the applicable eligibility requirements. The table below refers to foreign nationals ineligible to apply for adjustment of status, unless otherwise exempt.^[79] An immigrant category may exempt an applicant or make an applicant eligible for a waiver of certain adjustment bars and grounds of inadmissibility. Even if an exemption applies to an applicant who would otherwise be barred from adjustment of status, the applicant may still be denied adjustment as a matter of discretion. For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

Foreign Nationals Barred from Adjustment of Status
Foreign National	INA Section	Entries and Periods of Stay to Consider	Exempt from Bar
Crewman^[80] It is service as a crewman that triggers the bar to adjustment, not the actual nonimmigrant status. This bar applies if the foreign national was actually permitted to land under the D-1 or D-2 visa category. The bar also applies if the foreign national was a crewman admitted as a C-1 to join a crew, or as a B-2 if serving on a crew.	245(c)(1)	Only most recent permission to land, or admission prior to filing for adjustment	VAWA-based applicants
In Unlawful Immigration Status On The Date The Adjustment Application Is Filed OR Who Failed to Continuously Maintain Lawful Status Since Entry into United States^[81] This does not apply to foreign nationals who failed to maintain lawful status through no fault of their own or solely for technical reasons, as defined in 8 CFR 245.1(d)(2). OR Who Continues in, or accepts, Unauthorized Employment Prior to Filing for Adjustment	245(c)(2)^[82] The INA 245(c)(2) bar addresses three distinct types of immigration violations.	All entries and time periods spent in the United States (departure and return does not remove the ineligibility)^[83] See 8 CFR 245.1(d)(3).	VAWA-based applicants Immediate relatives^[84] See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions. Certain special immigrants^[85]See special immigrants described in INA 101(a)(27)(H)-(K). 245(k) eligible^[86] If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(2) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
Admitted in Transit Without a Visa (TWOV)	245(c)(3)	Only most recent admission prior to filing for adjustment	VAWA-based applicants
Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program^[87] See INA 212(l) and INA 217.	245(c)(4)	Only most recent admission prior to filing for adjustment	VAWA-based applicants Immediate relatives
Admitted as Witness or Informant^[88] See INA 101(a)(15)(S) and INA 245(j). The applicants are beneficiaries of a request by a law enforcement agency to adjust status (Form I-854, Inter-Agency Alien Witness and Informant Record).	245(c)(5)	Only most recent admission prior to filing for adjustment	VAWA-based applicants
Who is Deportable Due to Involvement in Terrorist Activity or Group^[89] See INA 237(a)(4)(B).	245(c)(6)	All entries and time periods spent in the United States	VAWA-based applicant^[90] Although VAWA-based applicants are exempt from all INA 245(c) bars per statute, a VAWA-based applicant may still be determined to be removable (INA 237(a)(4)(B)) or inadmissible (INA 212(a)(3)) due to egregious public safety risk and on security and related grounds.
Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status	245(c)(7)	Only most recent admission prior to filing for adjustment	VAWA-based applicants Immediate relatives and other family based applicants Special immigrant juveniles^[91] INA 245(c)(7) does not apply to VAWA-based applicants, immediate relatives, family-based applicants, or special immigrant juveniles because these foreign nationals are not seeking adjustment as employment-based applicants. See 8 CFR 245.1(b)(9). 245(k) eligible^[92] If an employment-based adjustment applicant is eligible for the INA 245(k) exemption, then he or she is exempted from the INA 245(c)(7) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].
Who Has Otherwise Violated the Terms of a Nonimmigrant Visa^[93] This is also referred to as a foreign national who has violated the terms of his or her nonimmigrant status. OR Who has Ever Engaged in Unauthorized Employment^[94] There are no time restrictions on when such a violation must have occurred while physically present in the United States. Violations either before or after the filing of Form I-485 will render a foreign national ineligible to adjust status under INA 245(a). An alien seeking employment during the pendency of his or her adjustment applicant must fully comply with the requirements of INA 274A and 8 CFR 274a. See 62 FR 39417 (July 23, 1997).	245(c)(8)^[95] The INA 245(c)(8) bar addresses two distinct types of immigration violations.	All entries and time periods spent in the United States (departure and return does not remove the ineligibility)^[96] See 8 CFR 245.1(d)(3).	VAWA-based applicants Immediate relatives^[97] USCIS interprets the exemption listed in INA 245(c)(2) for immediate relatives and certain special immigrants as applying to the 245(c)(8) bar in addition to the 245(c)(2) bar. See 62 FR 39417 (July 23, 1997). Certain special immigrants 245(k) eligible^[98] If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(8) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

In all cases, the foreign national is subject to any and all applicable grounds of inadmissibility even if the foreign national is not subject to any bar to adjustment, or is exempt from any or all the bars to adjustment.

1. Overlapping Bars

Some bars to adjustment may overlap in their application, despite their basis in separate sections of the law.^[99] See INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8). For example, a foreign national admitted under the Visa Waiver Program who overstays the admission is barred by both INA 245(c)(2) and INA 245(c)(4). Because some bars overlap, more than one bar can apply to an applicant for the same act or violation. In such cases, the officer should address each applicable adjustment bar in the denial notice.

2. Exemptions from the Bars^[100] See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].

Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants.

Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference^[101] This applies to religious workers only. categories from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission.^[102] Notwithstanding INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8), the officer should treat a foreign national who meets the conditions set forth in INA 245(k) in the same manner as an applicant under INA 245(a).

Footnotes

See Part A, General Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)].

See Part A, General Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

As originally enacted, section 245(a) made adjustment available only to a foreign national who “was lawfully admitted . . . as a bona fide nonimmigrant and who is continuing to maintain that status.” See Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, 217 (June 27, 1952). Admission as a bona fide nonimmigrant remained a requirement until 1960. See Pub. L. 86-648 (July 14, 1960). Congress amended that threshold requirement several times. The 1960 amendment removed the requirement of admission as a bona fide nonimmigrant.

See 8 CFR 245.1(b)(3).

See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (“Congress enacted INA 245 in such a manner that persons who entered the U.S. without inspection are ineligible to adjust”). See S. Rep. 86-1651, 1960 U.S.C.C.A.N. 3124, 3136 (“This legislation will not benefit the alien who has entered the United States in violation of the law”) and 3137 (“The wording of the amendments is such as not to grant eligibility for adjustment of status to alien crewmen and to aliens who entered the United States surreptitiously”). See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (explaining that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

See INA 245(a).

See , which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a).

See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).

10.

See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Department of Homeland Security (DHS) Delegation No. 7010.3.

11.

See Section 5 of the Act of March 3, 1875, 18 Stat. 477. See Sections 6, 8, 10, and 11 of the Act of March 3, 1891, 26 Stat. 1084. See Sections 8, 12, 16, and 18 of the Act of February 20, 1907, 34 Stat. 898. See Sections 10, 15, and 16 of the Immigration Act of 1917, Pub. L. 301 (February 5, 1917).

12.

See INA 231-235 and INA 275. See Matter of Robles, 15 I&N Dec. 734 (BIA 1976) (holding that entry into the United States after intentionally evading inspection is a ground for deportation under (then) INA 241(a)(2)).

13.

See 8 CFR 235.1(a). See Matter of S-, 9 I&N Dec. 599 (BIA 1962) (inspection is the process that determines an foreign national’s initial right to enter the United States upon presenting himself or herself for inspection at a port of entry). See Ex Parte Saadi, 23 F.2d 334 (S.D. Cal. 1927).

14.

See INA 235(d). See 8 CFR 235.1(f)(1).

15.

See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), and Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), which held that a foreign national who had physically presented himself or herself for questioning and made no knowing false claim of citizenship had satisfied the inspected and admitted requirement of INA 245(a); alternatively, a foreign national who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013).

16.

See Reid v. INS, 420 U.S. 619, 624 (1975) (a foreign national who enters the United States based on a false claim to U.S. citizenship is excludable under former INA 212(a)(19), or INA 212(a)(6)(C) today, and considered to have entered without inspection).

17.

See INA 235(a)(4).

18.

Deferred inspection is a form of parole. A foreign national who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].

19.

See INA 101(a)(13)(A). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the statute by changing the concept of “entry” to “admission” and “admitted.” See Section 301(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-575 (September 30, 1996). INA 101(a)(13)(B) clarifies that parole is not admission.

20.

See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.”

21.

See 8 CFR 235.1(f)(1).

22.

See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 291 (burden of proof). See Emokah v. Mukasey, 523 F.3d 110 (2nd Cir 2008). While it is an “admission,” procuring admission by fraud or willful misrepresentation is illegal and has several consequences. For example, the foreign national may be inadmissible and removable. See INA 212(a)(6)(C) and INA 237(a)(1)(A).

23.

See Matter of Quilantan, 25 I&N Dec. 289, 290 (BIA 2010). See Matter of Areguilin, 17 I&N Dec. 308 (BIA 1980). See INA 245(a). The foreign national is not inadmissible as an illegal entrant under INA 212(a)(6)(A)(i). For more information on admissibility, see Volume 8, Admissibility [8 USCIS-PM].

24.

See Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013) (a foreign national who enters the United States by falsely claiming U.S. citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under INA 101(a)(13)(A)).

25.

See Reid v. INS, 420 U.S. 619, 624 (1975). See Matter of S-, 9 I&N Dec. 599 (BIA 1962). A foreign national who makes a false claim to U.S. citizenship is inadmissible for making the claim (INA 212(a)(6)(C)(ii)). The foreign national may also be inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and unlawful presence after previous immigration violations (INA 212(a)(9)(C)).

26.

Such foreign nationals are inadmissible for presence without admission or parole and may be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(6)(A)(i) and INA 212(a)(9)(C).

27.

See INA 212(a)(2). See INA 212(h) and INA 240A(a).

28.

See INA 101(a)(13)(C). See generally Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1997). The foreign national who enters by making a false claim to LPR status at a port of entry and who is permitted to enter is inadmissible for presence without admission or parole (INA 212(a)(6)(A)(i)) and fraud and misrepresentation (INA 212(a)(6)(C)(i)). The foreign national may also be inadmissible for unlawful presence after previous immigration violations. See INA 212(a)(9)(C).

29.

This will typically be documented by an approved Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document.

30.

CBP or USCIS can issue a Form I-94, Arrival/Departure Record. If admitted to the United States by CBP at an airport or seaport after April 30, 2013, CBP may have issued an electronic Form I-94 to the applicant instead of a paper Form I-94. To obtain a paper version of an electronic Form I-94, visit the CBP Web site. CBP does not charge a fee for this service. Some travelers admitted to the United States at a land border, airport, or seaport, after April 30, 2013, with a passport or travel document and who were issued a paper Form I-94 by CBP may also be able to obtain a replacement Form I-94 from the CBP Web site without charge. Applicants may also obtain Form I-94 by filing Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Record, with USCIS. USCIS charges a fee for this service.

31.

Form DSP-150 is issued by the Department of State.

32.

See 8 CFR 235.1(h)(1)(i)-(v).

33.

See 8 CFR 212.1(b).

34.

See 8 CFR 212.1(c).

35.

See Delegation to the Bureau of Citizenship and Immigration Services, DHS Delegation No. 0150.1; Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, DHS Delegation No. 7030.2; Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, DHS Delegation No. 7010.3.

36.

See INA 212(d)(5)(A).

37.

See INA 101(a)(13)(B) and 212(d)(5)(A).

38.

See 8 CFR 235.2.

39.

CBP generally issues a Notice to Appear 30 days after a foreign national’s non-appearance for the deferred inspection, so an officer should review the relevant case and lookout systems for any entries related to CBP.

40.

CBP generally creates either an A-file or T-file to document the deferred inspection.

41.

See Legacy Immigration and Naturalization Service (INS) General Counsel Opinion 94-28, 1994 WL 1753132 (whether deferred inspection constitutes parole for purposes of adjustment of status under INA 245).

42.

See INA 212(d)(5).

43.

See INA 212(d)(5).

44.

Only parole under INA 212(d)(5)(A) meets this requirement.

45.

See INA 235(a).

46.

See Legacy INS General Counsel Opinion 98-10, 1998 WL 1806685.

47.

As with any immigration benefit request, eligibility for adjustment must exist when the application is filed and continue through adjudication. See 8 CFR 103.2(b)(1).

48.

For example, parole does not erase any periods of prior unlawful status. Therefore, a foreign national who entered without inspection will remain ineligible for adjustment of status, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exceptions to INA 245(c)(2) or INA 245(c)(8).

49.

See INA 245(c)(2). See Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8) [7 USCIS-PM B.4].

50.

See INA 236(a)(2)(B). Neither the statute nor regulations deem a release on conditional parole equal to a parole under INA 212(d)(5)(A). Several circuits and the BIA have opined on this and rejected the argument that the two concepts are equivalent processes. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007). See Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010). See Delgado-Sobalvarro v. Atty. Gen., 625 F.3d 782 (3rd Cir. 2010). See Cruz Miguel v. Holder, 650 F.3d 189 (2nd Cir. 2011).

51.

See Form I-512 or I-512L, Authorization for Parole of an Alien into the United States.

52.

See 8 CFR 235.1(h)(2). If a foreign national was admitted to the United States by CBP at an airport or seaport after April 30, 2012, the foreign national may have been issued an electronic Form I-94 by CBP, instead of a paper Form I-94. For more information, see the CBP Web site.

53.

See Consolidated Natural Resources Act of 2008, Pub. L. 110-229 (May 8, 2008).

54.

See INA 235(a)(1).

55.

See INA 244. See 8 CFR 244.

56.

The 6th Circuit Court of Appeals has ruled that TPS status meets the inspected and admitted requirement for adjustment of status under INA 245 even if a foreign national granted TPS status entered the United States without inspection. See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). This decision is only binding on cases within the jurisdiction of the 6th Circuit: Kentucky, Michigan, Ohio, and Tennessee.

57.

Under INA 245(a) or any other adjustment program.

58.

See Legacy INS General Counsel Opinion 91-27, 1991 WL 1185138. See Legacy INS General Counsel Opinion 93-59 , 1993 WL 1504006. See Serrano v. U.S. Atty. Gen., 655 F.3d 1260 (11th Cir. 2011).

59.

See Section 304(c) of the Miscellaneous and Technical Immigration and Naturalization Amendments Act of 1991, Pub. L. 102-232, 105 Stat. 1733, 1749 (December 12, 1991), amended in respects not relevant here by IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-546 (September 30, 1996).

60.

See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].

61.

Due to the different statutory bases, different eligibility requirements, exceptions, and waivers apply to applicants seeking adjustment based on their asylum status compared to those seeking adjustment under INA 245(a).

62.

The grant of asylum is not an admission contemplated under INA 101(a)(13)(A). See Matter of V-X-, 26 I&N Dec. 147 (BIA 2013). See Legacy INS General Counsel Opinion, expressed by INS Central Office, Deputy Asst. Commissioner, Adjudications, R. Michael Miller, in letter dated September 4, 1986, reprinted in Interpreter Releases, Vol. 63, No. 40, October 10, 1986, pp. 891-892.

63.

See Matter of Quilantan, 25 I&N Dec. 285, 291-92 (BIA 2010). See Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980). See 8 CFR 103.2(b).

64.

Any documentary evidence of admission should be consistent with entry information provided in the adjustment application or in oral testimony and should not contradict any other admission or departure evidence in DHS records. For example, when there is no Arrival/Departure Record or passport with an admission stamp, an officer may rely on information in DHS records, information in the applicant’s file, and the applicant’s testimony to make a determination on whether the applicant was inspected and admitted or inspected and paroled into the United States.

65.

See 8 CFR 103.2(b). See Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

66.

For more information, see Subsection 2, Admission [7 USCIS-PM B.2(A)(2)].

67.

See 8 CFR 103.2(a) and 8 CFR 103.2(b). See 8 CFR 103.2(a)(2). See 8 CFR 103.7(b) and 8 CFR 103.7(c). The applicant may submit a fee waiver request. See Form I-912, Request for Fee Waiver.

68.

See 8 CFR 103.2(a)(7) and 8 CFR 245.2(a)(2)(i). In addition, USCIS should process a fee refund when an adjustment application is accepted in error because a visa was unavailable at the time of filing and the error is recognized before interview or adjudication. For more information on the definition of “properly filed” and fee refunds, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions [7 USCIS-PM A.3].

69.

See INA 201(b). Immediate relatives of a U.S. citizen include the U.S. citizen’s spouse, children (unmarried and under 21 years of age), and parents (if the U.S. citizen is 21 years of age or older). Widow(er)s of U.S. citizens and foreign nationals admitted to the United States as a fiancé(e) or child of a fiancé(e) of a U.S. citizen may also be considered immediate relatives if they meet certain conditions.

70.

Diversity visas do not rely on a USCIS-filed petition to obtain a visa. The diversity visa lottery is conducted by the Department of State.

71.

See 8 CFR 103.2(b)(1).

72.

See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].

73.

See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of “Properly Filed,” Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

74.

See INA 245(a)(3). See 8 CFR 245.1(g)(1), 8 CFR 245.2(a)(5)(ii), and 8 CFR 103.2(b)(1). For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

75.

If one or more of the grounds listed in INA 212 applies to an applicant then the applicant may be inadmissible. For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM].

76.

See Volume 9, Waivers [9 USCIS-PM].

77.

See INA 245(c).

78.

Even if foreign nationals are barred from adjusting under INA 245(a), they may still adjust under another statutory basis as long as they meet the applicable eligibility requirements.

79.

An immigrant category may exempt an applicant or make an applicant eligible for a waiver of certain adjustment bars and grounds of inadmissibility. Even if an exemption applies to an applicant who would otherwise

be barred from adjustment of status, the applicant may still be denied adjustment as a matter of discretion. For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 9, Legal Analysis and Appropriate Use of Discretion [7 USCIS-PM A.9].

80.

It is service as a crewman that triggers the bar to adjustment, not the actual nonimmigrant status. This bar applies if the foreign national was actually permitted to land under the D-1 or D-2 visa category. The bar also applies if the foreign national was a crewman admitted as a C-1 to join a crew, or as a B-2 if serving on a crew.

81.

This does not apply to foreign nationals who failed to maintain lawful status through no fault of their own or solely for technical reasons, as defined in 8 CFR 245.1(d)(2).

82.

The INA 245(c)(2) bar addresses three distinct types of immigration violations.

83.

See 8 CFR 245.1(d)(3).

84.

85.

See special immigrants described in INA 101(a)(27)(H)-(K).

86.

If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(2) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

87.

See INA 212(l) and INA 217.

88.

See INA 101(a)(15)(S) and INA 245(j). The applicants are beneficiaries of a request by a law enforcement agency to adjust status (Form I-854, Inter-Agency Alien Witness and Informant Record).

89.

See INA 237(a)(4)(B).

90.

Although VAWA-based applicants are exempt from all INA 245(c) bars per statute, a VAWA-based applicant may still be determined to be removable (INA 237(a)(4)(B)) or inadmissible (INA 212(a)(3)) due to egregious public safety risk and on security and related grounds.

91.

INA 245(c)(7) does not apply to VAWA-based applicants, immediate relatives, family-based applicants, or special immigrant juveniles because these foreign nationals are not seeking adjustment as employment-based applicants. See 8 CFR 245.1(b)(9).

92.

If an employment-based adjustment applicant is eligible for the INA 245(k) exemption, then he or she is exempted from the INA 245(c)(7) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

93.

This is also referred to as a foreign national who has violated the terms of his or her nonimmigrant status.

94.

There are no time restrictions on when such a violation must have occurred while physically present in the United States. Violations either before or after the filing of Form I-485 will render a foreign national ineligible to adjust status under INA 245(a). An alien seeking employment during the pendency of his or her adjustment applicant must fully comply with the requirements of INA 274A and 8 CFR 274a. See 62 FR 39417 (July 23, 1997).

95.

The INA 245(c)(8) bar addresses two distinct types of immigration violations.

96.

See 8 CFR 245.1(d)(3).

97.

USCIS interprets the exemption listed in INA 245(c)(2) for immediate relatives and certain special immigrants as applying to the 245(c)(8) bar in addition to the 245(c)(2) bar. See 62 FR 39417 (July 23, 1997).

98.

If an adjustment applicant is eligible for the 245(k) exemption, then he or she is exempted from the INA 245(c)(8) bar to adjustment. See Chapter 8, Inapplicability of Bars to Adjustment, Section E, Employment-Based Exemption under INA 245(k) [7 USCIS-PM B.8(E)].

99.

See INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8).

100.

See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].

101.

This applies to religious workers only.

102.

Notwithstanding INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8), the officer should treat a foreign national who meets the conditions set forth in INA 245(k) in the same manner as an applicant under INA 245(a).

Updates

POLICY ALERT – Adjustment of Status Policies and Procedures and 245(a) Adjustment

February 25, 2016

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA).

Posted in Adjustment of Status, USCIS Policy Manual | Leave a comment

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USCIS Policy Manual Volume 7 – Adjustment of Status

USCIS Policy Manual

Volume 7 – Adjustment of Status

Part B – 245(a) Adjustment

Chapter 2 – Eligibility Requirements

A. “​Inspected and Admitted​”​ or ​“Inspected and ​Paroled​”​

1. Inspect​ion​

3. Parole​

4. Commonwealth of the Northern Mariana Islands​

5. Temporary Protected Status​ [55] See INA 244. See 8 CFR 244.

6. Asylum​ [60] See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].

7. Waved ​T​hrough at ​Port-of-Entry​

B. Properly Filing ​an Adjustment Application​ ​

C. Eligible to Receive an Immigrant Vis​a​ ​

1. General Eligibility for an Immigrant Visa​

2. Dependents​

3. Concurrent Filing​

D. Immigrant Visa Immediately Available at Time of Filing​ and at Time of Approval​

E. Admissible to the United States​ ​

F. Bars​ to Adjustment of Status​

1. Overlapping Bars​

2. Exemptions from the Bars​ [100] See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].

Footnotes

Updates

POLICY ALERT – Adjustment of Status Policies and Procedures and 245(a) Adjustment

Phone: 312-714-2800

Recent Posts

Archives

Categories

RSS Feed

Links

A. “Inspected and Admitted” or “Inspected and Paroled”

1. Inspection

3. Parole

4. Commonwealth of the Northern Mariana Islands

5. Temporary Protected Status^[55] See INA 244. See 8 CFR 244.

6. Asylum^[60] See 8 CFR 209.2. For more information on asylee adjustment, see Part M, Asylee Adjustment [7 USCIS-PM M].

7. Waved Through at Port-of-Entry

B. Properly Filing an Adjustment Application

C. Eligible to Receive an Immigrant Visa

1. General Eligibility for an Immigrant Visa

2. Dependents

3. Concurrent Filing

D. Immigrant Visa Immediately Available at Time of Filing and at Time of Approval

E. Admissible to the United States

F. Bars to Adjustment of Status

1. Overlapping Bars

2. Exemptions from the Bars^[100] See Chapter 8, Inapplicability of Bars to Adjustment [7 USCIS-PM B.8].