In re Joel Gladwin FESALE, Respondent
File A73 068 308 - New York City
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided October 27, 1995
Interim Decision #3256
HOLMES, Board Member
(2) The statutorily mandated sum required by section 245(i) of the Act cannot be waived by an Immigration Judge under the “fee waiver” provisions of
FOR RESPONDENT: Reverend Robеrt Vitaglione, Accredited Representative, Brooklyn, New York
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Jennifer Barnes, Appellate Counsel
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members
HOLMES, Board Member:
In a decision dated December 1, 1994, an Immigration Judge found the respondent deportable, determined that he was ineligible for any relief from deportation, and ordered him deported to Barbados. The respondent has appealed from the finding that he is ineligible to apply for adjustment of status under the provisions of section 245(i) of the Immigration and Nationality Act,
The respondent, a 19-year-old single male, is a native and citizen of Barbados. He entered the United States in May 1989 as a visitor for pleasure authorized to remain here for 6 months, but did not depart. In February 1993, he was convicted of petty larceny, followed by a May 1994 conviction for third degree robbery. The respondent was placed into deportation proceedings and charged with deportability under sections 241(a)(1)(B) and (2)(A)(ii) of the Act,
At his deportation hearing, thе respondent conceded he was deportable as charged, but requested the opportunity to apply for adjustment of status under section 245(i) of the Act, which had then been recently added to the Act. See section 506(b) of the Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act for 1995, Pub. L. No. 103-317, 108 Stat. 1724, 1765 (“Appropriations Act for 1995“).1 The respondent tendered a completed Application for Permanent Residence (Form I-485). Claiming to be indigent, he asked the Immigration Judge to waive the payment, amounting to five times the standard adjustment filing fee, which section 245(i) requires to be remitted prior to acceptance of the application. The resрondent argued that since the “sum” (or “fee” as he termed it) pertained to a matter within the jurisdiction of the Immigration Judge, it could be waived by the Immigration Judge pursuant to the authority conferred upon him by
After a review of the language of section 245(i) of the Act, the then-interim regulations promulgated to implement it, and the supplementary information which accompanied those regulations, the Immigration Judge concluded that his authority to waive certain fees did not extend to the statutory “fee” imposed by section 245(i) of the Act. See
II. SECTION 245 OF THE ACT
Prior to the enactment of section 245(i) of the Act, aliens physically present in the United States who entered this country without inspection or who fell within any one of the classes of aliens enumerated in section 245(c) of the Act were statutorily barred from the adjustment provisions of section 245 of the Act. See sections 245(a) and (c) of the Act.3 The respondent was ineligible for adjustment of status prior to the enactment of section 245(i) both because he was in an unlawful immigration status by the time of his deportation proceedings and because he had failed to maintain a continuous lawful status since entry into the United States. See section 245(c)(2) of the Act.
With the рassage of section 245(i), however, certain aliens, who were previously barred from adjustment of status under the provisions of section 245(a) and (c) of the Act, are now eligible to apply for adjustment of status at least for a temporary period of time.4 Section 245(i) of the Act provides:
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in thе United States who—
(A) entered the United States without inspection; or
(B) is within one of the classes enumerated in subsection (C) of this section,
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. The Attorney General may accept such application only if the alien remits with such application a sum equalling five times the feе required for the processing of applications under this section as of the date of receipt of the
application, but such sum shall not be required from a child under the age of seventeen, or an alien who is the spouse or unmarried child of an individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nаtionality Act or section 202 of the Immigration Reform and Control Act of 1986 at any date, who— (i) as of May 5, 1988, was the unmarried child or spouse of the individual who obtained temporary or permanent resident status under section 210 or 245A of the Immigration and Nationality Act or section 202 of the Immigration Reform and Control Act of 1986;
(ii) entered the United States before May 5, 1988, resided in the Unitеd States on May 5, 1988, and is not a lawful permanent resident; and
(iii) applied for benefits under section 301(a) of the Immigration Act of 1990. The sum specified herein shall be in addition to the fee normally required for the processing of an application under this section.
(2) Upon receipt of such an application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if—
(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the application is filed.
(3) Sums remitted to the Attorney General pursuant to paragraрhs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in sections 286(m), (n), and (o) of this title. (Emphasis added.)
Thus, while Congress temporarily eliminated certain absolute bars to adjustment of status, it expressly provided in section 245(i)(1) of the Act that an application for adjustment under that section may be accepted “only if the alien remits with such application a sum equalling five times the fee required for the processing of applications under this section as of the date of receipt of the application.”
III. ISSUE PRESENTED
The issue on appeal is whether the “sum” of five times the standard adjustment fee required by section 245(i) of the Act can be waived by an Immigration Judge under the “fee waiver” provisions of
IV. DISCUSSION
In аll cases involving statutory construction, the starting point must be the language employed by Congress, and it is assumed that the legislative
In pertinent part, section 245(i) of the Act mandates a remittance of an amount of money equalling five times the fеe required for the filing of a 245 adjustment application. Although the parties and the Immigration Judge throughout these proceedings have loosely termed this remittance a “fee,” it is by definition a statutorily mandated “sum.”6 See Connecticut National Bank v. German, 503 U.S. 249, 252 (1992) (stating that courts must presume that a legislature says in a statute what it means and means in a statute what it says); Aslandis v. United States Linеs, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). Moreover, Congress differentiated this “sum” from the standard adjustment filing fee when it wrote that “[t]he sum specified herein shall be in addition to the fee normally required for the processing of an application under [section 245 of the Act].” Section 245(i)(1)(B)(iii) of the Act (emphasis added). The language of section 245(i) of the Act thus makes clear that this sum is a requirement sepаrate and apart from the fee which federal regulations require an alien to pay for filing a section 245 adjustment application.7
Moreover, except as noted below, section 245(i) of the Act expressly prohibits the Attorney General, and, hence, the Immigration Judge as her delegate, from accepting a section 245(i) adjustment appliсation in the event this additional sum is not remitted. See section 245(i)(1) of the Act. Congress chose to exempt only two groups of aliens from paying this additional sum of money—children under the age of 17, and certain spouses and unmarried children of individuals who obtained temporary or permanent resident status under section 210 or 245A of the Act,
Federal regulations do permit an Immigration Judge to waive certain fees pertaining to matters within his/her jurisdiction. See
The respondent nevertheless turns for support, not to any language of section 245(i) or any legislative history behind its enactment, but rather to an explanatory comment contained in the supplementary information that accompanied the Immigration and Naturalization Sеrvice‘s interim regulation, promulgated after the passage of section 245(i). Language in the comments to the interim regulations suggested that this sum of five times the filing fee could be waived under
The respondent finally argues that, since the additional sum is a multiple of the filing fee, no sum is actually required if the filing fee in his case were to be waived. The respondent reasons that, with no filing fee to be paid, the additional sum of “five times the amount of the filing fee” essentially becomes zero since five times zero is zero. We agree with the respondent‘s math, but not with his conclusion. We read the language of “five times the fee required” to mean five times the general fee being charged of all 245 adjustment applications as of the date of receipt of application regardless of whether that fee is paid in any given case. As noted above, the language of section 245(i) does not refleсt any intention on the part of Congress to exempt any aliens from paying the additional sum other than those aliens designated therein, and, therefore, to read the statute as the respondent suggests would lead to a result inconsistent with the language of the Act.
V. CONCLUSION
For these reasons, we conclude that an Immigration Judge is not authorized to waive payment of the additional “sum” required by section 245(i) of the Act based on an alien‘s indigency. An Immigration Judge is precluded from accepting an application of an alien seeking the benefits of section 245(i) of the Act without remittance of the additional sum, except in the case of those aliens who are specifically exempt by statute from that requirement.
As the rеspondent does not fall within any of the classes of aliens exempt from payment of the additional sum of money required by section 245(i) of the Act, his failure to remit the additional sum precluded the Immigration Judge from accepting his application for adjustment of status under section 245(i) of the Act.9 Accordingly, we must dismiss this appeal.
ORDER: The appeal is dismissed.
Notes
The commentary relied upon by the respondent states as follows:
59 Fed. Reg. 51,091, 51,093 (1994) (emphasis added). Relying upon this language, counsel for the Service opined at the hearing that the Immigration Judge could waive the additional sum, but, as a practical matter, would find it unnecessary to do so since an adjustment applicant who was unable to pay the sum would also be unable to prove his admissibility under section 212(a)(4) of the Act. See section 245(i)(2) of the Act. On appeal, the Service has clarified its position and submits that the sum required under section 245(i) cannot be waived underAlso, fee waivers may be granted under 8 C.F.R. 103.7(c) only if the applicant substantiates his or her inability to pay the prescribed fee. Since a person applying for adjustment of status under section 245 of the Act is required to show financial resources or income estаblishing that he or she is not likely to become a public charge in the United States, a person who can establish a basis for waiving payment of the additional sum would be unlikely to be eligible for adjustment of status under section 245 of the Act.