Arriving Aliens in Removal Proceedings Are Now Eligible to Apply for Adjustment of Status
By James E. Root
Los Angeles, CA

On September 30, 2005, the Ninth Circuit Court of Appeal has ruled in a case, Bona v. Gonzales, that parolees who are arriving aliens may be able to adjust their status while in removal proceedings. Arriving aliens are people who were permitted to enter the United States but were nevertheless placed into removal proceedings. Parolees are people who are permitted to enter the United States for a specific purpose. For example, often times parolees are allowed to enter the United States to apply for asylum.
In Bona v. Gonzalez an issue was raised regarding the validity of 8 C.F.R. Section 245.1(c)(8), a regulation promulgated by the Attorney General in 1997. Under that regulation, an alien who had been granted parolee status and entered the United States, but was placed into removal proceedings, was ineligible to apply for adjustment of status. The court in Bona v. Gonzalez ultimately found that 8 C.F.R. Section 245.1(c)(8) directly conflicts with 8 U.S.C. Section 1255(a), the code section enacted by Congress, which grants parolees the right to apply for adjustment of status. Because Congressional intent in making policies of who can adjust status takes precedence over the Attorney General’s regulations, arriving aliens in removal proceedings in the Ninth Circuit are now eligible to apply for adjustment of status.
For example, if you came into the United States and were paroled in by immigration officials (to allow you to seek asylum, or to see an immigration judge in removal proceedings in California), and then you subsequently married a United States citizen, you are now (as a result of Bona v. Gonzalez) eligible to apply for adjustment of status before the immigration judge.
In addition, if while you were in removal proceedings in California you were denied adjustment of status in court because you were considered to be an arriving alien, it may be possible to reopen your case in light of this new Ninth Circuit decision.
In Bona v. Gonzalez, Delia Ramos Bona, who is a citizen and native of the Philippines, arrived in the United States in 1991 with her three children. They were paroled into the United States as endangered family members of a serviceman (Mrs. Bona’s husband was then in the United States Navy and now is a United States citizen.) when the volcano Mt. Pinatubo erupted in the Philippines. She was placed into removal proceedings eight years later and was considered an arriving alien because she was paroled into the United States at the time of her arrival in 1991. The Immigration Judge denied her the ability to apply for adjustment of status pursuant to the regulation which made arriving aliens ineligible to apply for adjustment of status. The Board of Immigration Appeals affirmed the Immigration Judge’s decision and refused to remand the case back to the Immigration Judge.
However, the Ninth Circuit court found that Mrs. Bona is entitled to apply for adjustment of status in removal proceedings. Accordingly, the Ninth Circuit court granted the Petition for Review and remanded the case back down to the Board of Immigration Appeals.
Mr. James E. Root exclusively practices US Immigration Law. He has offices in the Los Angeles and Orange Counties. For a free initial consultation please contact 1(888) ROOT-LAW or visit


Editor: Akhtar M. Faruqui
2004 . All Rights Reserved.