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 www.RootLaw.com.
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