Ana Cardella v. Jefferson Sessions
700 F. App'x 712
| 9th Cir. | 2017Background
- Petitioner Ana Daysi Cardella, a citizen of El Salvador, sought review of the BIA’s decision affirming the IJ’s dismissal of her application for adjustment of status for lack of jurisdiction.
- Cardella is an "arriving alien" placed in removal proceedings after filing an adjustment application with USCIS.
- 8 C.F.R. § 1245.2(a)(1)(ii) provides that an IJ lacks jurisdiction over an arriving alien’s adjustment application unless four requirements are met, including that the alien departed and returned pursuant to advance parole to pursue a previously filed adjustment application.
- Cardella conceded she did not depart the United States after filing nor return on advance parole, which is a required regulatory precondition for IJ jurisdiction under § 1245.2(a)(1)(ii)(B).
- Cardella argued the regulation conflicts with 8 U.S.C. § 1255(a) by improperly limiting who may apply for adjustment; the government and BIA maintained the regulation simply governs the manner and forum for applications.
- The Ninth Circuit reviewed de novo and denied Cardella’s petition, holding the regulation valid and that the IJ lacked jurisdiction because Cardella failed to meet the regulatory requirements.
Issues
| Issue | Cardella’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether 8 C.F.R. § 1245.2(a)(1) conflicts with 8 U.S.C. § 1255(a) | Regulation unlawfully limits who may apply for adjustment, conflicting with § 1255(a) | Regulation validly prescribes how/where eligible applicants apply; it does not bar eligibility | Regulation is valid; it governs application procedure, not eligibility |
| Whether IJ had jurisdiction over Cardella’s adjustment application | IJ had jurisdiction despite her status as an arriving alien | IJ lacked jurisdiction because Cardella did not depart and return on advance parole as required by the regulation | IJ lacked jurisdiction; Cardella did not meet regulatory prerequisites |
Key Cases Cited
- Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005) (invalidated a prior regulation that barred arriving aliens in removal proceedings from applying for adjustment)
- Scheerer v. U.S. Att’y Gen., 513 F.3d 1244 (11th Cir. 2008) (upheld § 1245.2(a)(1) as a reasonable construction of the Attorney General’s authority)
- Gazeli v. Sessions, 856 F.3d 1101 (6th Cir. 2017) (held the regulation is an appropriate implementation of the INA)
- Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (agency jurisdiction is a question of law reviewed de novo)