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WHEN an Immigration Judge (IJ) issues a removal order, the order becomes final when the affected alien does not file an appeal with the Board of Immigration Appeals (BIA). If the alien files an appeal or petition for review, the order becomes final when the appeal or petition is denied. Sometimes, a final removal order is not really final. An alien may file a motion to reopen (MTR) with the IJ or the BIA if he has new and material evidence that was not available and could not have been discovered or presented at an earlier stage in the proceedings.


Under 8 CFR 1003.2(c)(1), an MTR may be filed for the purpose of submitting an application for relief if the alien did not have the opportunity to apply for such relief during his previous hearings or the relief is based on circumstances that have arisen subsequent to the previous hearings.


For example, in January 2011, the IJ issued a removal order against X after the IJ denied his asylum application. X filed an appeal with the BIA. In January 2012, the BIA dismissed X’s appeal. In February 2011, X married his US citizen (USC) fiancée. In March 2011, X filed an MTR with the BIA, explaining that his USC wife had filed an I-130 petition for him and that he was eligible for adjustment of status. The BIA may consider this MTR because it was filed for the purpose of allowing X an opportunity to apply for adjustment of status, which is a form of discretionary relief, and X’s eligibility for adjustment is based on his marriage to his USC wife, which occurred after the conclusion of his removal hearings in January 2011.


An alien in removal proceedings must, as a general rule, file his adjustment application with the IJ. An alien who is not in removal proceedings must file his adjustment application with USCIS. However, there is an exception to this rule. Under 8 CFR 1245.2(a)(1), an alien in removal proceedings who is classified as an arriving alien must file his adjustment application with USCIS. The IJ has no jurisdiction over the adjustment application of an arriving alien in proceedings, except under limited circumstances.


Under 8 CFR 1.2, an arriving alien means, among other things, an applicant for admission who is coming or attempting to come into the US at a port-of-entry. An arriving alien remains an arriving alien even if he is paroled into the US and even after such parole is terminated or revoked.


Here’s a problem. If an arriving alien, who was in removal proceedings and who has a final removal order, is now eligible for adjustment of status, how can he apply for adjustment?


First, we should remember that a final removal order does not disqualify an alien from adjustment. Under INA 212(a)(9)(A), a final removal order would make an alien inadmissible and thus ineligible for adjustment if the order was executed, i.e. if the alien was actually removed from the US. However, under INA 240(b)(7), an alien with a final removal order that is entered in absentia due to the alien’s failure to attend his hearings is not be eligible for adjustment for a period of 10 years after the date of the entry of the order. An in absentia removal order would bar adjustment even if it has not yet been executed.


This background knowledge would help us understand the case of Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). The alien in that case was an arriving alien with a final removal order issued on December 2, 2003. Four years later, she filed an MTR, requesting the BIA to reopen her proceedings and continue them indefinitely so that she would not have an outstanding removal order while she pursues her adjustment application with USCIS. Although an unexecuted removal order would not bar adjustment, the alien could still be removed if immigration authorities decide to execute the order.


Since the BIA had no jurisdiction over the underlying adjustment application, the BIA in Matter of Yauri framed the issue in terms of whether an MTR should be used as a vehicle, in effect, to stay the execution of a removal order while USCIS resolves an arriving alien’s adjustment application. The BIA held that it lacked authority to reopen such order under the given circumstances.


However, in Singh v. Holder, No. 09-73798, slip op. (9th Cir. November 13, 2014), the Ninth Circuit Court of Appeals rejected the ruling in Matter of Yauri and held the BIA had authority, at least under 8 CFR 1003.2(a), to consider an MTR even if it had no jurisdiction over the underlying adjustment application. The Court pointed out that the BIA has often considered MTRs even if it had no jurisdiction over the I-130 petition, which is a portion of the adjustment application.

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