In re Ada Rosa ARTIGAS, Respondent
File A76 543 602 - Miami
United States Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided May 11, 2001
23 I&N Dec. 99 (BIA 2001)
Interim Decision #3450
FOR RESPONDENT: Rodrigo Villar, Esquire, Miami, Florida
AMICI CURIAE1: Eugenio Hernandez, Esquire; Maria R. Dominguez, Esquire; and Adalsinda Lomangino, Esquire, Miami, Florida
AMICI CURIAE1: Joan Friedland, Esquire, and Rebecca Sharpless, Esquire, Miami, Florida
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Sylvia Alonso, Appellate Counsel
BEFORE: Board En Banc: DUNNE, Vice Chairman; SCHMIDT, HURWITZ, VILLAGELIU, GUENDELSBERGER, ROSENBERG, MOSCATO, MILLER, BRENNAN, ESPENOZA, and OSUNA, Board Members. Concurring Opinion: HOLMES, Board Member. Dissenting Opinion: FILPPU, Board Member, joined by SCIALABBA, Acting Chairman; HEILMAN, COLE, MATHON, JONES, and GRANT, Board Members.2
VILLAGELIU, Board Member:
In a decision dated February 9, 1999, an Immigration Judge found the respondent removable under
Service appealed. We heard oral argument in this case on June 20, 2000. Because we concur with the decision of the Immigration Judge, the appeal will be dismissed.
I. FACTS AND PROCEDURAL HISTORY
The respondent, a female native and citizen of Cuba, was served with a Notice to Appear (Form I-862) by the Service when she arrived without a visa and was paroled into the United States on January 16, 1998. In proceedings before the Immigration Judge, the respondent admitted the factual allegations set forth in the Notice to Appear and conceded removability as charged. The Immigration Judge then granted the respondent‘s application for adjustment of status under the Cuban Adjustment Act. This appeal followed.
II. ISSUE PRESENTED
The issue before us is whether an Immigration Judge has jurisdiction to adjudicate the respondent‘s application for adjustment of status under the Cuban Adjustment Act, when the respondent is charged as an arriving alien without a valid visa or entry document and is placed in removal proceedings. The Service contends that, pursuant to
III. ANALYSIS
Whether an Immigration Judge has jurisdiction to consider an application for adjustment under the Cuban Adjustment Act depends on the authority afforded under the regulations that were adopted by the Attorney General in 1997. As we have previously stated, the principles that apply to statutory construction also apply to regulations promulgated by the Attorney General. Matter of Masri, Interim Decision 3419 (BIA 1999). Accordingly, there is “no more persuasive evidence of the purpose of a [regulation] than the words by which the [Attorney General] undertook to give expression to [her] wishes.” Perry v. Commerce Loan Co., 383 U.S. 392, 400 (1966). If the language is clear, our inquiry is at an end. This Board and the Immigration Judges “must give effect to the unambiguously expressed intent” of the Attorney General. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984); Matter of W-F-, 21 I&N Dec. 503, 506 (BIA 1996).
In addition, a statute or regulation should be construed so that effect is given to all its provisions and no part of it will be inoperative, superfluous, void, or insignificant. See 2A Norman J. Singer, Sutherland Statutory Construction § 46.06, at 104 (4th ed. 1984); see also Matter of Grinberg, 20 I&N Dec. 911
A. Regulatory Framework
1. Applicable Provisions
Immigration Judges have been granted the authority to determine removability and to adjudicate applications for relief from removal.
In a removal proceeding, an alien may apply to the immigration judge for . . . adjustment of status under section 1 of the Act of November 2, 1966 (as modified by section 606 of Pub. L. 104-208) . . . . The application shall be subject to the requirements of § 240.20, and 8 C.F.R. parts 245 and 249.
In a removal proceeding, an alien may apply to the immigration judge for cancellation of removal under section 240A of the Act, adjustment of status under section 245 of the Act, adjustment of status under section 1 of the [Cuban Adjustment Act] (as modified by section 606 of Pub. L. 104-132) . . . .
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 492 (1997) (codified at
2. Arguments on Appeal
The Service argues that the regulations governing adjustment of status, which provide a detailed statement of the manner in which such an application may be filed and considered, preclude jurisdiction in removal proceedings in the case of arriving aliens, regardless of whether they are applying under the Cuban Adjustment Act. The regulation in question states, in relevant part, as follows:
An alien who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, and § 245.1 shall apply to the [district] director having jurisdiction over his or her place of residence unless otherwise instructed in 8 C.F.R. part 245, or by the instruction on the application form. After an alien, other than an arriving alien, is in deportation or removal proceedings, his or her application for adjustment of status under section 245 of the Act or section 1 of the [Cuban Adjustment Act] shall be made and considered only in those proceedings. An arriving alien, other than an alien in removal proceedings, who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, and § 245.1 shall apply to the [district] director having jurisdiction over his or her place of arrival.
B. Application of Regulations to Respondent‘s Case
In applying the law to the facts of this case, we consider the form of jurisdiction, the regulations in the context of the previously applicable regulations, the regulations as implementing the Cuban Adjustment Act, the nature of the limitations on relief in the regulations, and general principles of construction. Having considered all of these factors, we conclude that the Immigration Judge did not err in exercising jurisdiction over the respondent‘s application for Cuban Adjustment Act relief.
1. Jurisdiction
The means by which an Immigration Judge may be granted jurisdiction include a delegation of authority to adjudicate a specific application for relief. See Matter of Ulloa, Interim Decision 3393 (BIA 1999) (holding that the regulations specifically give Immigration Judges the authority to grant or deny an alien a waiver of inadmissibility under section 213 of the Act,
2. Prior Regulations
The current regulations must also be viewed in light of the regulations that they replaced. Before the consolidation of deportation and exclusion proceedings into a unified removal procedure, the predecessor to 8 C.F.R.
3. Limitations on Relief
The regulations do not prescribe ineligibility. The current regulation at
The language of the regulation itself calls the Service‘s interpretation into question. The well-settled rule of statutory construction, expressio unius est exclusio alterius, suggests that by specifically barring only section 245 relief in
This interpretation is consistent with our holding in Matter of Castro, 21 I&N Dec. 379 (BIA 1996), that, in exclusion proceedings, jurisdiction over an alien‘s application for adjustment of status generally lies with the district director of the Service. In that decision, we found that
In the instant case, the respondent was paroled into the United States after January 1, 1959. She had acquired the requisite 1 year of physical presence before the Immigration Judge issued a decision in her case. She therefore met the statutory requirements of section 1 of the Cuban Adjustment Act.3 The regulation at
Were we to find that the regulations implicitly deprive an Immigration Judge of jurisdiction to consider applications for adjustment of status under the Cuban Adjustment Act, this statutory form of relief would become meaningless, despite the fact that it resolves the dispositive issue in these proceedings. See Matter of Garcia, 21 I&N Dec. 254, 257 (BIA 1996) (affirming the power of the Immigration Judges and the Board to exercise the Attorney General‘s discretion as is appropriate and necessary for the disposition of the case, particularly where the only ground of deportability or inadmissibility would otherwise be eliminated or where the alien would receive a grant of adjustment of status); Matter of S-N-, 6 I&N Dec. 73 (BIA, A.G. 1954);
IV. CONCLUSION
Accordingly, having considered the Act, the Cuban Adjustment Act, and the regulations, we are not persuaded by the Service‘s arguments that the Immigration Judge lacked jurisdiction to grant relief under the Cuban Adjustment Act. We find that an Immigration Judge has jurisdiction to consider an application for adjustment of status under the Cuban Adjustment Act made by a respondent charged in removal proceedings as an arriving alien without a valid visa. We find further that, in the instant case, the Immigration Judge properly considered the respondent‘s application for adjustment of status under the Cuban Adjustment Act. Accordingly, the Service‘s appeal will be dismissed.
ORDER: The appeal of the Immigration and Naturalization Service is dismissed.
In re Ada Rosa ARTIGAS, Respondent
File A76 543 602 - Miami
United States Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided May 11, 2001
23 I&N Dec. 99 (BIA 2001)
I respectfully concur. While I agree with much of the dissent‘s articulation of both the prior and current law pertinent to this case, I do not find that the majority‘s ruling is either inconsistent with the “literal language” of the governing regulations or that it “directly conflicts” with Matter of Manneh, 16 I&N Dec. 272 (BIA 1977).1 See Matter of Artigas, 23 I&N Dec. 99, 109 (Filppu, dissenting).
The issue in this case is whether an Immigration Judge has jurisdiction over an application for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended (“Cuban Adjustment Act“), filed by an arriving alien who has been placed in removal proceedings without previously having had such an application adjudicated by a district director.2
It is agreed that Immigration Judges have jurisdiction over some applications for adjustment of status under the Cuban Adjustment Act. The only reference to such authority in 8 C.F.R. part 240 is in
This “subject to the requirements” language in
The dissent provides a reasoned basis for its reading of the regulations, and its interpretation may be that which was intended by the Attorney General in 1997 in implementing these provisions in 8 C.F.R. parts 240 and 245. However, it is not clear to me that the dissent is correct. I think the regulatory provisions are amenable to more than one reading. It would have been easy to have included a provision in the regulations equivalent to that set forth in
Furthermore, the legislative history accompanying the enactment of the Cuban Adjustment Act in 1966 reflects that the purpose of the bill was
to permit natives or citizens of Cuba who were inspected and admitted or paroled into the United States, subsequent to January 1, 1959, to apply for adjustment of status to lawful permanent resident status and to have the status adjusted in the discretion of the Attorney General if they are otherwise eligible to receive an immigrant visa and be admissible into the United States.
H.R. Rep. No. 89-1978, at 1 (1966), reprinted in 1966 U.S.C.C.A.N. 3792. This language indicates a congressional intent that paroled Cubans at least have an opportunity to apply for adjustment under the Cuban Adjustment Act. Under the dissent‘s reading of the current regulations, an inspected and paroled Cuban “arriving alien” who is placed into removal proceedings without having had the opportunity to apply for adjustment under the Cuban Adjustment Act before the district director will never have an opportunity to apply for such adjustment. This would be a significant change from the prior law, as implemented by regulation. Previously, a paroled Cuban who was placed into exclusion proceedings without having had an opportunity to apply for adjustment under the Cuban Adjustment Act could not apply for adjustment before the Immigration Judge; however, the alien could still apply for adjustment before the district director, who could act on the application independent of the exclusion proceedings. See Matter of Castro, 21 I&N Dec. 379 (BIA 1996); Matter of Manneh, supra; Matter of C-H-, 9 I&N Dec. 265 (R.C. 1961). Thus, under the prior regulatory provisions, a paroled Cuban would at least have had an opportunity to apply for adjustment, whether before a district director, an Immigration Judge, or both. Given the relevant legislative history noted above,
Accordingly, I would not reverse the Immigration Judge‘s decision in this case.
In re Ada Rosa ARTIGAS, Respondent
File A76 543 602 - Miami
United States Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided May 11, 2001
23 I&N Dec. 99 (BIA 2001)
I respectfully dissent.
The question before us is whether Immigration Judges and the Board have jurisdiction in removal proceedings over applications, filed by arriving aliens, for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended (“Cuban Adjustment Act“). The majority finds such jurisdiction to exist, but its ruling is inconsistent with the literal language of the governing regulation and the context and history in which it was promulgated.
As explained below, the majority‘s ruling directly conflicts with our decision in Matter of Manneh, 16 I&N Dec. 272 (BIA 1977), which found that jurisdiction over adjustment of status applications cannot arise in the absence of a specific, affirmative grant of such authority and cannot stem from the “appropriate and necessary” clause currently found in
I. PRIOR LAW
A brief look at the workings of earlier law is important because the current regulatory provisions flow directly from their predecessor provisions, but with changes occasioned by the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA“). Under prior law, an applicant under the Cuban Adjustment Act could not present his or her application to an Immigration Judge if the alien was in the functionally equivalent position of what is today known as an “arriving alien,” unless the alien fell within a narrow exception pertaining to advance parole, an exception that has been preserved in the current regulations, but which does not apply to the respondent.
With one minor exception, the prior regulations denied Immigration Judges any jurisdiction over adjustment of status applications by aliens in exclusion proceedings and only permitted such jurisdiction as to aliens who were in deportation proceedings. An excludable alien could only apply for adjustment of status to a district director of the Immigration and Naturalization Service, unless the alien had previously been admitted, had filed for adjustment, and had received advance parole specifically to allow the alien to leave the United States and return to pursue the adjustment application. See Matter of Castro, 21 I&N Dec. 379 (BIA 1996);
This history is significant because the current regulation is not written to extend to Immigration Judges jurisdiction they never previously had over
II. CURRENT LAW
Through the enactment of the IIRIRA, Congress merged the separate deportation and exclusion proceedings of prior law into one form of “removal” proceedings. That merger required the promulgation of new regulations. Proposed regulations to implement the IIRIRA were issued on January 3, 1997. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444-501 (1997). These proposed rules contained the new “arriving alien” definition as well as revisions to the adjustment of status regulations. The supplementary information to the proposed new rules explained, in part, as follows:
Adjustment of status is granted in the discretion of the Attorney General. Consistent with Congress’ intent that arriving aliens . . . be removed in an expedited manner through the procedures provided in section 235(b)(1) of the Act, the Attorney General has determined that she will not favorably exercise her discretion to adjust the status of arriving aliens who are ordered removed pursuant to section 235(b)(1) of the Act or who are placed in removal proceedings under section 240 of the Act . . . . If the Service decides as a matter of prosecutorial discretion, not to initiate removal proceedings but to parole the arriving alien, the alien will be able to apply for adjustment of status before the district director.
62 Fed. Reg. at 452 (codified at 8 C.F.R. pt. 245) (emphasis added). Subsequent comments pertaining to the adoption of the final rules suggest that the focus of the new “arriving alien” provisions was on claims under the normal adjustment of status process contained in section 245 of the Immigration and Nationality Act,
Thus, the fundamental jurisdictional provision governing adjustment of status applications is in part 245 of the regulations, at
Jurisdiction. An alien who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966 [Cuban Adjustment Act], and § 245.1 shall apply to the director having jurisdiction over his or her place of residence . . . . After an alien, other than an arriving alien, is in deportation or removal proceedings, his or her application for adjustment of status under section 245 of the Act or section 1 of the Act of November 2, 1966 shall be made and considered only in those proceedings. An arriving alien, other than an alien in removal proceedings, who believes he or she meets the eligibility requirements of section 245 of the Act or section 1 of the Act of November 2, 1966, and § 245.1 shall apply to the director having jurisdiction over his or her place of arrival. An adjustment application by an alien paroled under section 212(d)(5) of the Act, which has been denied by the director, may be renewed in removal proceedings under 8 CFR part 240 only if:
(i) The denied application must have been properly filed subsequent to the applicant‘s earlier inspection and admission to the United States; and
(ii) The applicant‘s later absence from and return to the United States was under the terms of an advance parole authorization on Form I-512 granted to permit the applicant‘s absence and return to pursue the previously filed adjustment application.
The literal language of this regulation shows that it is not confined to adjustment applications submitted under section 245 of the Act. The regulation repeatedly refers to both section 245 and section 1 of the Act of November 2, 1966, the Cuban Adjustment Act. It speaks to both “deportation” proceedings under prior law and “removal” proceedings under current law by providing that after aliens are in such proceedings, adjustment applications are to be made and considered only in those proceedings, unless the alien is an arriving alien. It then provides that arriving aliens can seek adjustment under section 245 or the Cuban Adjustment Act from a district director, unless the alien has been placed in removal proceedings. And, finally, it preserves the limited exception for aliens receiving advance parole to renew denied claims in removal proceedings before Immigration Judges.
The respondent here is a parolee, but she does not meet the requirements of the limited exception for previously admitted aliens with pending applications
Instead, reasonably read, these jurisdictional provisions give Immigration Judges authority to act on section 245 adjustment and Cuban Adjustment Act applications filed by aliens in removal proceedings, except that arriving aliens may only apply to district directors, and only then if the particular arriving alien has not been put in removal proceedings. The effect is to maintain the pre-IIRIRA regulatory structure, except for the withdrawal of district director jurisdiction over applications by arriving aliens placed in removal proceedings. This represents a contraction of jurisdiction, not an expansion, in comparison to prior law. And this should come as no surprise because it was precisely this contraction that was announced in the supplementary information to the proposed regulations implementing the IIRIRA.
The jurisdictional contraction that arises from a straightforward reading of the regulation is reinforced by
Regardless of what may have been intended, Immigration Judge jurisdiction over Cuban Adjustment Act applications simply does not arise, by virtue of a substantive regulatory bar for section 245 applicants, coupled with the absence of an identical substantive bar for arriving Cubans. Rather, in keeping with our ruling in Matter of Manneh, supra, we must first identify a jurisdictional regulation that enlarges the authority of Immigration Judges and the Board over applications filed by arriving aliens who seek adjustment of status under the Cuban Adjustment Act.
Furthermore, although there is no substantive bar for Cuban Adjustment Act cases that precisely parallels
Under the Act of November 2, 1966. . . . No appeal lies from the denial of an application by the director, but the applicant, if not an arriving alien, retains the right to renew his or her application in [removal] proceedings under 8 CFR part 240. Also, an applicant who is a parolee and meets the two conditions described in § 245.2(a)(1) may renew a denied application in proceedings under 8 CFR part 240 to determine admissibility. (Emphasis added.)
The import of this amendment is that Cuban Adjustment Act applicants can renew their claims before Immigration Judges once in removal proceedings, but not if they are arriving aliens. Any lingering uncertainty in the intended meaning of the “jurisdictional” language in
In sum, the literal language of the jurisdictional provision in 8 C.F.R. part 245 prohibits arriving aliens from making Cuban Adjustment Act claims before Immigration Judges in removal proceedings (unless the alien meets the special advance parole tests). That literal language is reinforced by a related regulation aimed specifically at Cuban Adjustment Act applicants, by the regulatory history contained in the proposed rules, and by the predecessor regulations that generally deprived aliens in exclusion proceedings under prior law of the ability to apply for adjustment of status before the Immigration Judges.
III. THE MAJORITY‘S RULING
The majority offers various unconvincing reasons for its decision.
First, as I read its ruling, the majority finds jurisdiction because
Moreover, although I read § 245.2(a)(1) to preclude jurisdiction over claims filed by arriving aliens, the majority at least acknowledges that there is no grant of arriving alien jurisdiction in this “jurisdictional” section. That alone should be enough for the majority to arrive at a different outcome. The absence of a specific grant of authority to entertain adjustment applications in exclusion proceedings was the principal basis of our ruling in Matter of Manneh, supra, at 273-74. We stated that “[i]nasmuch as the immigration judges previously had no authority over adjustment of status applications, and given that the authority
Second, the majority wrongly claims that finding a lack of jurisdiction “would require us to accept the notion that jurisdiction has been withdrawn by implication” from Immigration Judges. Matter of Artigas, 23 I&N Dec. 99, 115 (BIA 2001). But Immigration Judges never had adjustment jurisdiction over applicants for admission who were stopped at the border, except for the special advance parole cases. Arriving aliens by definition include “applicant[s] for admission coming or attempting to come into the United States at a port-of-entry.”
Third, the majority points to
Furthermore, as explained earlier, the arriving alien bar to normal adjustment in
Fourth, and finally, the majority asserts that the Cuban Adjustment Act would become “meaningless” for arriving aliens if jurisdiction was found to be lacking, and it invokes the “appropriate and necessary” power given to the Immigration Judges and the Board in
In addition, our recognition that Immigration Judges and this Board lack jurisdiction over Cuban Adjustment Act applications from arriving aliens does not render the statute meaningless. It does mean that arriving aliens in removal proceedings have no forum in which to advance their claims. But this is precisely the point that the Attorney General announced when proposing regulations to implement the IIRIRA. She added that “[i]f the Service decides as a matter of prosecutorial discretion, not to initiate removal proceedings but to parole the arriving alien, the alien will be able to apply for adjustment of status before the district director.” 62 Fed. Reg. at 452.
The Attorney General is fully capable of instructing the Service on how to exercise its prosecutorial discretion with respect to arriving aliens who may qualify under the Cuban Adjustment Act. The Attorney General is further fully capable of amending the regulations pertaining to arriving Cubans if application of the literal language of the jurisdictional provisions conflicts with the policy the Attorney General desires to see implemented. Importantly, our role is not to “second guess” the Attorney General‘s policy pronouncements out of concern that they have been carried beyond their original intent, particularly when that second guessing conflicts with a specific regulatory directive issued by the Attorney General.
IV. CONCLUSION
The literal language of
Notes
Similarly,Jurisdiction. An alien who believes he meets the eligibility requirements of section 245 of the Act or section 1 of the [Cuban Adjustment Act] . . . shall apply to the director having jurisdiction over his place of residence . . . . After an alien has been served with an order to show cause or warrant of arrest, his application for adjustment of status under section 245 of the Act or [the Cuban Adjustment Act] . . . shall be made and considered only in [deportation] proceedings under part 242 of this chapter. An adjustment application by an alien paroled under section 212(d)(5) of the Act, which has been denied by the director, may be renewed in exclusion proceedings under section 236 of the Act only under the following two conditions: First, the denied application must have been properly filed subsequent to the applicant‘s earlier inspection and admission to the United States; second, the applicant‘s later absence from and return to the United States must have been under the terms of an advance parole authorization on Form I-512 granted to permit the applicant‘s absence and return to pursue the previously filed adjustment application.
Under the Act of November 2, 1966. . . . No appeal lies from the denial of an application by the director, but the applicant retains the right to renew his or her application in proceedings under part 242 of this chapter [deportation proceedings], or under part 236 [exclusion proceedings], if the applicant is a parolee and meets the two conditions outlined in paragraph 1 of § 245.2(a)(1).