Jeffrey A. Bekiares, In Country, on Parole, out of Luck-Regulating away Alien Eligibility for Adjustment of Status Contrary to Congressional Intent and Sound Immigration Policy

58 Fla. L. Rev. 713 (2006) | | | |

INTRODUCTION :: Immigrants are a daily part of American life. They work in every sector of the economy and form strong social and familial bonds in the community. The legislative and cultural history of the United States has encouraged immigration as a constant source of vibrancy, dynamism, and renewal. One of the main mechanisms for becoming a United States citizen is through the process of adjusting status based on a strong relation to this country such as family or employment. Although Congress has set relatively broad criteria as to eligibility to adjust status, the Attorney General has severely restricted this avenue through questionable regulation.

Title 8, § 245.1 of the Code of Federal Regulations governs adjustment of status for aliens who wish to seek permanent residence in the United States. The regulation, which is promulgated by the Attorney General, is a derivative of the power granted to him by Congress pursuant to § 245(a) of the Immigration and Nationality Act (INA). This section of the INA grants the Attorney General the discretion to adjust status of a prescribed set of aliens to that of a “Lawful Permanent Resident” (LPR) when certain conditions are met. The statute also contemplates that the Attorney General may issue regulations to guide the process of adjustment.


Pursuant to this statute, the Attorney General has created a lengthy set of regulations dealing with the adjustment process. The regulation codified at 8 C.F.R. § 245.1 creates a laundry list of specifics under the caption of “eligibility.” One subsection within this regulation in particular has created a nascent and growing controversy in immigration law.

Specifically, 8 § 245.1(c)(8) provides that any alien who is classed as an “arriving alien” and who is currently in removal proceedings is declared per se ineligible to adjust status. The controversy over this provision stems from the apparent conflict between the Attorney General’s almost categorical exclusion of paroled aliens-a subset of arriving aliens-from relief, and the underlying enabling statute, which specifically mentions “paroled” aliens as a class eligible for discretionary relief. Since, almost by definition, aliens who are paroled into the United States are placed into removal proceedings, the Attorney General has essentially excised by regulation an entire class of aliens who otherwise might be afforded relief from removal as specified by Congress.

The Attorney General has defended the integrity of the regulation by principally relying on Congress’s explicit commitment of the matter to his discretion. This defense has taken on two forms. First, this argument took the form of a contention that Article III courts lacked the proper jurisdiction to invalidate the regulation because matters committed solely to the discretion of the Attorney General by Congress in various areas of alien removal are beyond review. As a second derivative argument, the Attorney General has contended that, even if the courts had the jurisdiction to review the regulation, the regulation itself represented a valid exercise of the discretion which was expressly granted.

In the 2005 case of Succar v. Ashcroft, however, the Court of Appeals for the First Circuit rejected both of the Attorney General’s arguments and invalidated the regulation. The main focus of the court’s reasoning in that case was that the regulation was an impermissible alteration of the eligibility requirements for adjustment of status-a power Congress had exclusively reserved unto itself. This case marked the beginning in a series of rapid decisions that have split the circuits on the question of the continued validity of § 245.1(c)(8).

When then Attorney General Janet Reno implemented the regulation in 1997, she justified it by stating that it was necessary in order to be consistent with Congress’s intent in passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which sought to expedite the removal of arriving aliens. The soundness of this rationale, however, has been called sharply into question by the Succar case. Specifically, that court noted that although Congress had amended the adjustment of status provisions in the INA several times since its original passage, including in the IIRIRA, it had not altered the eligibility of paroled aliens to adjust. In addition, the court added that the new regulation indeed had the effect of counteracting many of the congressional fixes that had been instituted over the years to streamline the adjustment system.

Denying paroled aliens the ability to lawfully adjust status because of a suspect regulation works mischief not only with congressional intent, but also with public policy, and even notions of fundamental fairness. The system of removal of aliens in the United States is a cumbersome process. Aliens often find themselves in administrative and legal adjudication for years on end. In the meantime, however, these aliens continue to go on with their lives. Many work, pay taxes, marry, and start families, all while their ultimate domiciliary fate hangs in the balance. If paroled aliens in removal proceedings must return abroad before being allowed to adjust status, many will suffer a statutory penalty of at least a three- year ban on re-entry into the United States. This places a significant hardship on aliens and their families with legitimate adjustment of status claims.

In light of the revitalized but never ending debate surrounding immigration, particularly illegal immigration in the United States, this Note analyzes why § 245.1(c)(8) was rightly invalidated by the First Circuit Court of Appeals, both because it is contrary to congressional intent, and because it places a draconian burden on many arriving aliens. To this end, this Note will provide a brief overview of the INA and how it has controlled and shaped immigration since its passage, with a particular focus on understanding adjustment of status. It will also examine the jurisdictional challenges that reviewing courts face, particularly in the immigration context, and what tools may be used to divine congressional intent in this important area of the law. It will then apply these principles in the context of a burgeoning circuit split over § 245.1(c)(8), and explain the cases that have created the controversy. This Note will conclude with a brief look at the quantitative and qualitative effects of such a regulation on a population that Congress has sought to protect through consistent policy in adjustment of status eligibility. Finally, this Note will suggest why other federal circuits should follow the First Circuit’s lead in striking down § 245.1(c)(8), and why, ultimately, the Supreme Court should do the same.

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