Government to Withdraw Regulation Barring “Arriving Aliens” in Proceedings from Adjusting Status  (posted May. 11, 2006)"

In an interim rule to be published in the Federal Register May 12, 2006, EOIR and USCIS will amend the regulations and delete the absolute bar on an “arriving alien’s” ability to adjust status if he or she is in removal proceedings. The interim rule amends the regulations so that USCIS will have jurisdiction over adjustment applications notwithstanding the removal proceedings.

This amendment is a direct result of the litigation challenging the bar on adjustment that the American Immigration Law Foundation (AILF) has coordinated nationally. In particular, four courts of appeals have struck down this regulation, finding that it violated the statute, while two courts have upheld it. As EOIR and USCIS explain in the supplementary information to the interim rule, conflicting decisions by the courts of appeals will result in inconsistent application of the adjustment laws. The interim rule further explains that “because the regulations are currently unenforceable in four circuits, covering 18 states, the only immediate way to provide the necessary finality and consistency is by repealing the regulations.”

While this interim rule represents an important victory for immigrants categorized as “arriving aliens,” it is not the final rule. DHS and the Attorney General indicate in the interim rule that they are considering further amendments to the regulations that could negatively restrict the exercise of discretion by USCIS when adjudicating these adjustment applications. Comments on these proposals will be due 30 days after publication of the rule. AILF encourages all to comment and will publish suggestions for comments in the near future.

Memorandum from Michael Aytes, Associate Director, Domestic Operations, provides guidance on implementation of the interim rule (71 FR 27585, 5/12/06) on applications for adjustment of status by arriving aliens in removal proceedings