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Nov 15, 2005
9th Circuit Finds that Arriving Alien can Adjust Status in Court
- Atty. Reeves Email this article

Last month, in Bona v. Gonzales, the Ninth Circuit Court of Appeals issued a decision adopting the holding of Succar v. Ashcroft, a landmark decision from the First Circuit.  Bona v. Gonzales not only opens real doors of relief for arriving aliens in removal proceedings, but also sends a clear message that invalid regulations can be successfully challenged in court. 

According to Bona v. Gonzales, a federal regulation barring arriving aliens from  adjusting their status before an immigration judge is invalid.  An arriving alien is an someone who is applying for admission into the United States at a port of entry, someone who is seeking transit through the United States at a port of entry, or someone who is interdicted at sea and brought to the United States.  Even if a person is paroled into the United States for a limited purpose, he legally remains an “arriving alien.”  The Court examined the federal regulation barring arriving aliens from adjusting their status in immigration court in context with the Congressional statute outlining eligibility for adjustment of status.


The federal regulation in question, 8 C.F.R. § 245.1(c)(8), provides that arriving aliens who are in removal proceedings cannot adjust their status to lawful permanent resident.  That means someone who is paroled into the United States, like Bona, would be barred from getting her green card in court despite having a valid visa and being otherwise eligible to adjust.  However, the Congressional statute places no such restriction on the eligibility to adjust status.  Because a Congressional statute trumps a federal regulation, the Court found Bona eligible to adjust her status.  

Congress placed specific statutory limitations on those who are eligible to adjust their status within the Immigration and Nationality Act (“INA”).  Congress even provided for certain exceptions to those aliens who are not otherwise eligible to adjust their status.  Although Congress has the authority to enact immigration laws, it is the executive branch, and often the Attorney General, who must issue federal regulations implementing the law.  Here, the Attorney General promulgated a federal regulation in conflict with the INA.   Specifically, the federal regulation precluded an entire class of aliens from adjusting their status even though Congress said they were eligible.  Not only was the regulation in question in direct conflict with the statute, but it created an “absurd result” when viewed in light of the entire Immigration and Nationality Act.  As such, the Court found the regulation invalid.


It is important to note that this case applies only to aliens filing a new application in removal proceedings, and not to aliens who are simply renewing an existing application for adjustment.  The Court specifically distinguished Bona from a case it had decided a week earlier that upheld a regulation preventing arriving aliens from renewing a previously-denied adjustment application. 


Because immigration law is a complex mixture of case law, statute, and regulations, aliens in removal proceeding should consult with knowledgeable and experienced immigration attorneys.  As Bona v. Gonzales has shown, sometimes the regulations must be challenged before justice can prevail.    




Author's Note: The analysis and suggestions offered in this column do not create  a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.

Atty. Reeves has represented clients innumerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in test books as a guide to other immigration practitioners. His offices are located in Pasadena, San Francisco, Beijing and Makati City. Telephone:759-6777




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