Vakker: Remand Not Required For Most Arriving Aliens With Green Card Applications Directly Filed With USCIS

Vakker v. Mukasey, No. 06-1949 (3d Cir. Mar. 14, 2008).

The Third Circuit denied the appeal, which challenged how the BIA refused to remand a case back to the IJ.

Someone was charged as an arriving alien and wanted to seek adjustment of status. The immigrant applied to USCIS as was denied. Back in 2005, courts followed a regulation that was later repealed in May 2006. Back in 2005, the regulation said that people charged as arriving aliens can never obtain adjustment of status. Several courts ruled that the regulation was an illegal rule that violated what Congress intended in the immigration laws. That led to an interim rule in May 2006 that only allows renewal of a denied USCIS application in a specific situation that the immigrant in this case did not fit.

The immigrant asked the BIA to remand the case to hear the adjustment of status application and the BIA refused, noting that he does not fit the small situation allowing review of a denied application under the interim rule. The Third Circuit ruled that even though the 2005 regulation was invalid, the 2006 interim rule regarding the limit on review of a denied application was legitimate. The invalid 2005 rule put an improper ban on all arriving aliens from getting adjustment of status. The 2006 interim rule has a limited block -- only stopping paroled immigrants from getting review of a previously denied application.

For those of you doing these cases now, keep in mind a recent revision by USCIS to the 1245.2(a)(1) regulation. The latest interim rule says that in most situations (see the regulation for the limited exception), only USCIS can rule on an adjustment of status application and not an immigration judge. The Third Circuit did not analyze what exactly that meant, but it seems like the immigrant can directly request adjustment of status from USCIS even with a removal order hanging over his head.

This system might not make much sense and may seem quite inefficient and inconsistent to allow courts to issue removal orders even while someone is seeking adjustment of status from USCIS, but that seems to be the system the Third Circuit is calling acceptable. There is a good AILF practice advisory on this issue. It may be more sensible to hold a BIA and Third Circuit appeal until USCIS makes a ruling on a new adjustment of status application for the sake of efficiency and creating a coherent system.