[Federal Register Volume 71, Number 92 (Friday, May 12, 2006)]
[Rules and Regulations]
[Pages 27585-27592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4429]


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DEPARTMENT OF HOMELAND SECURITY

Citizenship and Immigration Services

8 CFR Parts 1 and 245

[CIS No. 2387-06]
[DHS Docket No. USCIS-2006-0010]
RIN 1615-AB50

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001 and 1245

[EOIR Docket No. 152; AG Order No. 2819-2006]
RIN 1125-AA55


Eligibility of Arriving Aliens in Removal Proceedings To Apply 
for Adjustment of Status and Jurisdiction To Adjudicate Applications 
for Adjustment of Status

AGENCIES: U.S. Citizenship and Immigration Services, DHS; Executive 
Office for Immigration Review, DOJ.

ACTION: Interim rules with request for comments.

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SUMMARY: The Secretary of Homeland Security and the Attorney General 
are amending their respective agencies' regulations governing 
applications for adjustment of status filed by paroled arriving aliens 
seeking to become lawful permanent residents. The Secretary and the 
Attorney General are also amending the regulations to clarify when 
United States Citizenship and Immigration Services, or the immigration 
judges and the Board of Immigration Appeals of the Executive Office for 
Immigration Review, have jurisdiction to adjudicate applications for 
adjustment of status by such aliens. In addition, the Secretary and the 
Attorney General are requesting comments on the possibility of adopting 
further proposals in the future to structure the exercise of discretion 
in adjudicating these applications for adjustment of status.

DATES: Effective date: These rules are effective May 12, 2006.
    Comment date: Comments may be submitted not later than June 12, 
2006.

ADDRESSES: You may submit comments, identified by DHS Docket No. DHS-
2006-0010, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Director, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2006-0010 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 
20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Regarding amendment to 8 CFR parts 1 
and 245: Evan Franke, Litigation Coordination Counsel, Office of the 
Chief Counsel, U.S. Citizenship and Immigration Services, Department of 
Homeland Security, 20 Massachusetts Avenue, NW., Suite 4025, 
Washington, DC 20529, telephone (202) 272-1400 (not a toll free call).
    Regarding amendments to 8 CFR part 1001 and 1245: MaryBeth Keller, 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2600, Falls Church, Virginia 22041; telephone (703) 305-
0470 (not a toll free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of these 
rules. Comments that will provide the most

[[Page 27586]]

assistance to the Department of Homeland Security and the Department of 
Justice will reference a specific portion of the rules, explain the 
reason for any recommended change, and include data, information, or 
authority that support such recommended change. In addition to the 
specific provisions of the rules, the Departments request comments on 
whether the Secretary and the Attorney General should adopt any 
presumptions or restrictions on the exercise of discretion as discussed 
in Part IV of the SUPPLEMENTARY INFORMATION. As a convenience to the 
general public and to the agencies, the Department of Homeland Security 
will receive all comments on behalf of both agencies, and all comments 
will be considered by the appropriate agency. See ADDRESSES above for 
information on how to submit comments.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2006-0010. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To make 
an appointment, please contact the Regulatory Management Division at 
(202) 272-8377.

II. Statutory and Regulatory Background

A. Adjustment of Status

    Section 245 of the Immigration and Nationality Act (INA or Act), 8 
U.S.C.1255, authorizes the Secretary of Homeland Security (Secretary) 
and the Attorney General, in the exercise of discretion, to adjust an 
eligible alien's status to that of an alien lawfully admitted for 
permanent residence. Unless an alien qualifies for adjustment of status 
under section 245(i) of the Act, 8 U.S.C. 1255(i), an alien seeking 
adjustment of status must generally show that he or she was inspected 
at a port-of-entry and either admitted or paroled into the United 
States. INA sec. 245(a), 8 U.S.C. 1255(a).
    As defined by section 101(a)(13)(A) of the Act, an alien is 
``admitted'' if an immigration inspector authorized the alien to enter 
the United States, after having determined on the basis of the alien's 
inspection that the alien is ``clearly and beyond doubt'' entitled to 
admission. See INA 235(b)(2) and 240(c)(2)(A), 8 U.S.C. 1225(b)(2) and 
1229a(c)(2)(A) (applicant for admission must establish admissibility 
``clearly and beyond doubt'').
    Alternatively, an alien may be permitted to physically enter the 
United States temporarily without having been admitted, a concept known 
as ``parole.'' Leng May Ma v. Barber, 357 U.S. 185, 188-189 (1958), 
quoting Kaplan v. Tod, 267 U.S. 228, 230 (1925). Although the term 
``parole'' does have other meanings in common parlance, its meaning for 
this aspect of the immigration laws is controlled by statute. INA 
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), gives the Secretary authority to 
parole from custody ``any alien applying for admission'' who would 
otherwise be detained until the Secretary resolves whether to admit or 
remove the alien. In order to exercise this authority, the Secretary 
must find, on a case-by-case basis, either that ``urgent humanitarian 
reasons'' justify the parole or that paroling the alien will yield a 
``significant public benefit.'' Id. Although a paroled alien may be at 
large in the United States, parole, by definition, is not an 
``admission.'' Id. See INA 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B). 
Thus, the alien remains an applicant for admission throughout the 
period of the parole. Once the purpose of the parole has been served or 
if DHS determines for any other reason that parole is no longer 
appropriate, DHS may terminate the parole and return the alien to 
custody. Id.; cf. 8 CFR 212.5(e) (including automatic termination of 
parole in certain circumstances). This parole authority is limited to 
DHS. An immigration judge has no authority to grant parole. 8 CFR 
1003.19(h)(2)(i)(B); 1212.5.
    Before the enactment of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 
Division C, 110 Stat. 3009 (September 30, 1996), an alien who was 
subject to deportation proceedings (an alien who had already entered 
the United States) could file an adjustment of status application with 
the immigration judge. This avenue of relief, however, generally was 
not available to an alien placed in exclusion proceedings (an alien 
seeking to enter the United States) as an inadmissible alien, even if 
the alien had been paroled from custody under section 212(d)(5)(A) of 
the Act. See Matter of Manneh, 16 I&N Dec. 272 (BIA 1977) (immigration 
judge lacked jurisdiction over paroled alien's adjustment application). 
The former Immigration and Naturalization Service (INS) generally had 
exclusive jurisdiction over an adjustment of status application filed 
by a paroled alien in exclusion proceedings and the alien was not able 
to file or renew the application before an immigration judge. Id. Thus, 
an alien in deportation proceedings (who had entered the United 
States), if eligible, could obtain adjustment of status as relief from 
deportation, but an alien in exclusion proceedings (who was seeking to 
enter the United States) generally could not obtain adjustment of 
status from an immigration judge. The only exception was for aliens who 
had applied for adjustment of status while in the United States, 
traveled abroad and returned pursuant to a grant of advance parole, and 
then had their adjustment applications denied by INS; such aliens could 
renew their applications before an immigration judge in the resulting 
exclusion proceeding. See 8 CFR 245.2(a) (1995); cf. Matter of Castro-
Padron, 21 I&N Dec. 379,380 (BIA 1996) (describing exception to general 
jurisdictional bar to adjustment by immigration judge in exclusion 
proceedings).\1\
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    \1\ ``Advance parole'' is the determination of an appropriate 
DHS officer that DHS should agree to the exercise of the parole 
authority under section 212(d)(5)(A) of the Act before the alien's 
actual arrival at a port-of-entry. The actual decision to parole, 
however, is made at the port-of-entry. Since any grant of parole may 
be revoked, 8 CFR 212.5(e), a decision authorizing advance parole 
does not preclude denying parole when the alien actually arrives at 
a port-of-entry, should DHS determine that parole is no longer 
warranted.
    One long-standing use of advance parole has been to provide a 
means for applicants for adjustment of status to be able to leave 
the country briefly and return without abandoning their applications 
for adjustment. In general, an alien's departure from the United 
States while an application for relief is pending has the effect of 
automatically withdrawing the application, but aliens who are 
granted advance permission to be paroled into the United States upon 
their return are still able to pursue their previously filed 
application after they return. 50 FR 23959 (June 7, 1985). If their 
application for adjustment of status was denied, those aliens would 
have been subject to exclusion, as opposed to deportation, 
proceedings. Id. Accordingly, in order to preserve the ability of 
such aliens to pursue their previously filed applications for 
adjustment of status, the regulations allowed aliens in this very 
narrow situation to be able to renew an application for adjustment 
of status before an immigration judge in exclusion proceedings. See 
51 FR 7431 (March 4, 1986); 8 CFR 245.2(a).
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    IIRIRA replaced the former deportation and exclusion proceedings 
with a single ``removal'' proceeding. Whether an alien has been 
admitted or is seeking admission is still a relevant distinction. If 
the alien is seeking admission, the alien is charged in removal 
proceedings as an inadmissible alien under section 212 of the Act, 8 
U.S.C. 1182. If the alien has been admitted, the alien is charged in 
removal proceedings as a deportable

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alien under section 237 of the Act, 8 U.S.C. 1227.
    Implementing IIRIRA, the Attorney General sought to continue the 
traditional rule that an applicant for admission who has been placed in 
proceedings before an immigration judge, generally, may not seek 
adjustment of status as a form of relief from removal. See 62 FR 10312 
(March 6, 1997). The Attorney General established a final rule, 
currently codified in 8 CFR 245.1(c)(8) and 1245.1(c)(8), that provided 
that an ``arriving alien'' placed in removal proceedings was not 
eligible for adjustment of status. See 62 FR 444, 452 (January 3, 1997) 
(proposed rule); 62 FR 10312, 10326-27 (March 6, 1997) (interim rule); 
see also 8 CFR 1.1(q) (defining ``arriving alien,'' in relevant part, 
as ``an applicant for admission coming or attempting to come into the 
United States at a port-of-entry'' and providing, with limited 
exceptions, that ``[a]n arriving alien remains such even if paroled 
pursuant to section 212(d)(5) of the Act''). The Department of Justice 
believed that 8 CFR 245.1(c)(8) ``promote[d] the Department's objective 
of taking steps to preserve the integrity of the visa issuance process 
* * *.'' 62 FR at 10306.

B. Litigation Under the Regulations

    After the regulations were published, the Government relied upon 
those regulations for a number of years before any challenge. In recent 
years, however, the regulations at 8 CFR 245.1(c)(8) and 1245.1(c)(8) 
have been the subject of litigation and have resulted in an 
intercircuit conflict. Several courts of appeals have held that the 
regulations, as applied to paroled aliens, are impermissible in view of 
the statutory language at section 245(a) of the Act, 8 U.S.C. 1255(a), 
allowing for an application for discretionary adjustment of status by 
any alien who was ``inspected and admitted or paroled'' (emphasis 
added). See Scheerer v. U.S. Atty. Gen., ---- F.3d ----, 2006 WL 947680 
(11th Cir. April 13, 2006); Bona v. Gonzales, 425 F.3d 663 (9th Cir. 
2005); Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005); Succar v. 
Ashcroft, 394 F.3d 8 (1st Cir. 2005).
    The United States Courts of Appeals for the Fifth and Eighth 
Circuits, on the other hand, have rejected similar challenges to the 
regulations, holding that the regulations--even as applied to arriving 
aliens seeking adjustment of status in removal proceedings who were 
paroled into the United States--constituted a valid exercise of the 
Secretary of Homeland Security's and the Attorney General's respective 
discretionary authority to grant or deny adjustment of status. See 
Momin v. Gonzales, ----F.3d ----, 2006 WL 1075235 (5th Cir. April 24, 
2006) (concluding that the ``Attorney General did not act arbitrarily, 
capriciously, or manifestly contrary to the statute in opting to 
decline to exercise his discretion favorably for parolees that are 
subject to removal proceedings.''); Mouelle v. Gonzales, 416 F.3d 923 
(8th Cir.), petition for reh'g en banc denied (2005), petition for 
cert. filed No. 05-1092 (February 23, 2006). Cf. Lopez v. Davis, 531 
U.S. 230, 243-44 (2001) (``Even if a statutory scheme requires 
individualized determinations, which this scheme does not, the 
decisionmaker has the authority to rely on rulemaking to resolve 
certain issues of general applicability unless Congress clearly 
expresses an intent to withhold that authority * * *. [C]ase-by-case 
decisionmaking in thousands of cases each year, * * * could invite 
favoritism, disunity, and inconsistency.'') (citations and quotations 
omitted); Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) 
(concluding with regard to section 245(a) of the Act, ``We are unable 
to understand why there should be any general principle forbidding an 
administrator, vested with discretionary power, to determine by 
appropriate rulemaking that he will not use it in favor of a particular 
class on a case-by-case basis.'').

III. Amendments to the Regulations

A. Acquiescence and Regulatory Amendment

    The Departments recognize that the conflicting court of appeals 
decisions addressing the validity of 8 CFR 245.1(c)(8) and 1245.1(c)(8) 
will result in inconsistent application of the adjustment of status 
laws. Not infrequently, amendment of applicable regulations provides a 
more appropriate disposition of such an intercircuit conflict than 
continued review of the cases pending before the courts. See, e.g., 
Bell v. Wolfish, 441 U.S. 520, 549-52 (1979) (amendment of Bureau of 
Prisons regulations while constitutional challenge to prior regulations 
pending in Supreme Court); see also Smiley v. Citibank (South Dakota), 
N.A., 517 U.S. 735 (1996) (amendment to the regulations interpreting 
``interest'' as used in the National Bank Act while the issue of what 
constituted such ``interest'' was in litigation). ``That it was 
litigation that disclosed the need for the regulation is irrelevant.'' 
Smiley, 517 U.S. at 741. The exercise of authority granted to make 
rules pending litigation is a longstanding practice that is warranted 
here to avoid inconsistent application of the adjustment of status laws 
depending upon the geographic location of the applicant. See National 
Mining Ass'n v. Department of Labor, 292 F.3d 849, 873 (D.C. Cir. 2002) 
(``[N]o authority supports the proposition that a rule is arbitrary and 
capricious merely because it abrogates a circuit court decision. Quite 
to the contrary, `regulations promulgated to clarify disputed 
interpretations of a regulation are to be encouraged. Tidying-up a 
conflict in the circuits with a clarifying regulation permits a 
nationally uniform rule without the need for the Supreme Court to essay 
the meaning of every debatable regulation.' '') (quoting Pope v. 
Shalala, 998 F.2d 473, 486 (7th Cir. 1993)).
    With this in mind, the Secretary and the Attorney General have 
undertaken to resolve the conflict through rulemaking by removing 8 CFR 
245.1(c)(8) and 1245.1(c)(8) rather than continue to litigate their 
validity. On balance, given continuing uncertainty of the controlling 
judicial precedent, the Attorney General and Secretary conclude that 
having rules that apply nationwide is preferable to continuing to 
litigate the validity of 8 CFR 245.1(c)(8) and 1245.1(c)(8).

B. Jurisdictional Clarity

    In addition, the Secretary and the Attorney General are amending 
the regulations to make clear which Departmental component has 
jurisdiction to adjudicate adjustment applications for arriving aliens 
who have been paroled and placed in removal proceedings.\2\ In general, 
these limited numbers of cases will be adjudicated only by U.S. 
Citizenship and Immigration Services (USCIS), a component of DHS.
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    \2\ The existing DHS regulatory provision at 8 CFR 245.2(a)(1) 
(and the identical language in the current Executive Office for 
Immigration Review (EOIR) regulations at 8 CFR 1245.2(a)(1)), 
predates the enactment of the Homeland Security Act, which 
transferred the responsibilities of the former INS to the Department 
of Homeland Security while retaining EOIR under the authority of the 
Attorney General. See INA 103(a), (g), 8 U.S.C. 1103(a)(g); 6 U.S.C. 
275, 291, 521. Accordingly, the current regulatory language combines 
provisions relating to the jurisdiction of USCIS as well as 
provisions relating to the jurisdiction of the immigration judges. 
As amended by this rule, section 245.2(a)(1) will now be focused on 
the jurisdiction of USCIS, while provisions relating to the 
authority of the immigration judges will be codified in section 
1245.2(a)(1).
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    With only one narrow exception, arriving aliens will not be able to 
submit or renew applications for adjustment of status in removal 
proceedings. This result is consistent with current

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practice, under longstanding regulations limiting the jurisdiction of 
the immigration judges in this context. 8 CFR 1245.2(a)(2), (5)(ii). 
Cf. Jiang v. Gonzales, 425 F.3d 649, 653 (9th Cir. 2005) (noting that 
section 1245.2(a)(2) is not inconsistent with section 245(a) of the Act 
because the rule does not limit the alien's ability to apply to USCIS 
for adjustment of status); Bona, 425 F.3d at 671 n.8. However, these 
rules retain the narrow existing exception for an alien who leaves the 
United States while an adjustment application is pending with USCIS, 
and then returns under a grant of advance parole; if DHS places such an 
alien in removal proceedings, the immigration judge would have 
jurisdiction to adjudicate the alien's renewed adjustment application 
if that application has been denied by USCIS.
    Note, however, that section 209 of the Act, 8 U.S.C. 1159, provides 
a separate procedure for the adjustment of status of an alien admitted 
as a refugee or an alien granted asylum to the status of an alien 
lawfully admitted for permanent residence. This interim rule has no 
effect on the ability of a refugee or asylee to seek adjustment of 
status under section 209 of the Act in removal proceedings. See 8 CFR 
parts 209, 1209 (adjustment of status of refugees and aliens granted 
asylum); see also Matter of K-A-, 23 I&N Dec. 661 (BIA 2004) 
(adjustment of status of asylees); Matter of H-N-, 22 I&N Dec. 1039 
(BIA 1999) (adjustment of status of refugees). Nor does this interim 
rule limit an arriving alien's ability to seek asylum before an 
immigration judge, as permitted under 8 CFR parts 208 and 1208.
    To accomplish these changes, the Secretary is amending section 
245.2(a)(1) of the DHS regulations, and the Attorney General is 
amending section 1245.2(a)(1) of the EOIR regulations.

C. Definition of ``Arriving Alien''

    Finally, these rules make a technical correction to the definition 
in 8 CFR 1.1(q) and 1001.1(q) of ``arriving alien.'' On April 30, 1998, 
the former INS published in the Federal Register, 63 FR 19382, an 
interim rule (``1998 interim rule'') that was intended to make clear 
that certain parolees, as a matter of policy, would not be subject to 
expedited removal. This exception applies to aliens paroled before 
April 1, 1997, and to any alien paroled after that date based on a 
grant of advance parole that the alien applied for and obtained in the 
United States prior to the alien's departure from and return to the 
United States. The 1998 interim rule indicates that these aliens are 
not ``considered * * * arriving alien[s] for purposes of section 
235(b)(1)(A)(i) of the Act.'' The way this exception is expressed is 
confusing because these aliens are arriving aliens for other purposes. 
For example, if placed in removal proceedings, they would be charged as 
inadmissible applicants for admission, not as deportable aliens. These 
rules retain the principle of the 1998 interim rule. Amended section 
1.1(q) and section 1001.1(q), however, state that principle more simply 
by clearly indicating that such aliens are arriving aliens for all 
purposes under the Act, except for purposes of section 235(b)(1)(A)(i) 
of the Act.

D. Independent Adoption of Coordinated Rulemaking

    The Secretary of Homeland Security is amending the regulations of 
the Department of Homeland Security to permit USCIS to exercise 
discretion to grant applications for adjustment of status to that of a 
lawful permanent resident by aliens who have been paroled into the 
United States and who have been placed in removal proceedings. The 
Secretary is exercising his authority under sections 103 and 245 of the 
Act (8 U.S.C. 1103, 1255) and the Homeland Security Act of 2002, Public 
Law 107-296, Sec.  101(b)(1)(D), 102(a), (e), 116 Stat. 2142-3 
(November 25, 2002) (6 U.S.C. 111(b)(1)(D), 112(a)(e)). The Attorney 
General is amending the regulations of the Department of Justice to 
permit immigration judges and the Board of Immigration Appeals to 
adjudicate renewed applications for adjustment of status to that of a 
lawful permanent resident that have been denied by USCIS for aliens 
previously granted advance parole to return to the United States and 
who are thereafter placed in removal proceedings. The Attorney General 
is exercising his authority under sections 103 and 245 of the Act (8 
U.S.C. 1103, 1255) and 28 U.S.C. 509, 510.
    The amendments made by these rules are applicable to all cases 
pending administrative or judicial review on or after May 12, 2006.

IV. Additional Rulemaking Provisions Being Considered

    In addition to the regulatory changes made in these interim rules, 
the Secretary and the Attorney General are considering whether to amend 
the existing rules to codify specific regulatory limitations on the 
exercise of discretion or a presumption against favorably exercising 
discretion in adopting a final rule.
    The immigrant visa process remains the proper means for an alien to 
seek admission to the United States as an immigrant, i.e., a lawful 
permanent resident. See, e.g., Jain v. INS, 612 F.2d 683, 688-89 (2d 
Cir. 1979); Ameeriar v. INS, 438 F.2d 1028, 1032-33 (3d Cir. 1971); 
Santos v. INS, 375 F.2d 262, 264 (9th Cir. 1967). This longstanding 
view remains relevant in adjudicating adjustment applications for 
paroled aliens in removal proceedings. The chief objective of 8 CFR 
245.1(c)(8) was to preserve the integrity of the nonimmigrant and 
immigrant visa issuance processes. See 62 FR at 10326-27.
    In particular, existing BIA decisions and court decisions note that 
adjustment of status is a discretionary benefit that will require a 
strong showing of favorable equities to warrant its being granted if 
certain other adverse factors are present. See Matter of Arai, 13 I&N 
Dec. 494 (BIA 1970) (requiring a showing of unusual or outstanding 
equities is appropriate to the exercise of discretion if the case 
presents significant adverse factors that weigh against a favorable 
exercise of discretion). For example, evidence of a preconceived intent 
to remain in the United States as an immigrant when the alien sought 
admission as a nonimmigrant or otherwise circumvented the normal 
consular immigrant visa issuance process is a serious adverse factor. 
Von Pervieux v. INS, 572 F.2d 114, 118 (3d Cir. 1978); Jain, 612 F.2d 
at 688-89; Ameeriar, 438 F.2d at 1032-33; Matter of Ibrahim, 18 I&N 
Dec. 55 (BIA 1981); see also Putrus v. Montgomery, 555 F. Supp 452, 
454-57 (E.D. Mich. 1982) (holding that INS district director did not 
abuse his discretion under section 245(a) of the INA in denying 
adjustment of status application of Iraqi aliens who boarded a plane in 
Jordan en route to Bahamas after stop in New York, and who deplaned in 
New York and refused to reboard, sought asylum, and were paroled for 
exclusion proceedings where evidence supported the director's finding 
that aliens had preconceived intent to remain in United States 
permanently at time they attempted entry, as part of overall scheme to 
circumvent the normal consular visa issuing process).
    These considerations remain relevant in determining whether a 
particular arriving alien who was paroled and thereafter placed in 
removal proceedings may adjust his or her status. For example, if the 
record shows that such an arriving alien had a preconceived intent to 
evade the consular process, this factor will weigh against allowing 
adjustment in such cases as well. Of course, in an

[[Page 27589]]

individual case, an alien may still argue, and the adjudicator may 
decide, that the favorable factors are sufficiently strong that the 
application should be approved in the exercise of discretion. See, 
e.g., Matter of Battista, 19 I&N Dec. 484 (BIA 1987) (sufficiently 
strong equities can justify granting adjustment of status, even where 
the alien is found to have had a preconceived intent to remain in the 
United States as an immigrant).
    As noted above, existing caselaw standards relating to the exercise 
of discretion provide that when certain adverse factors are present, a 
showing of unusual or outstanding equities supports, but does not 
compel, a favorable exercise of discretion; rather, absent such 
equities, adjustment of status will not be granted in the exercise of 
discretion. Under existing caselaw, an arriving alien's application for 
adjustment of status may be denied as a matter of discretion where 
adverse considerations, including circumvention of the consular process 
for immigrant visas, are preponderant. Further, rules concerning the 
manner in which discretion would be exercised would serve the same 
purpose of preserving the integrity of the nonimmigrant and immigrant 
visa issuance processes. The ordinary costs and delays resulting from 
consular processing, by themselves, would not constitute unusual or 
outstanding equities.
    Accordingly, the Secretary and the Attorney General are soliciting 
public comment on whether the regulations should be amended to 
structure the exercise of discretion further. In particular, we welcome 
comments on the following questions:
    Should the fact that an application for adjustment of status is 
filed by an arriving alien--who generally could have and should have 
sought and obtained an immigrant visa from a consular officer abroad, 
rather than arriving at a port-of-entry as a putative nonimmigrant, or 
with otherwise invalid or fraudulent documents--be formalized in the 
regulations as a significant adverse factor that may warrant denial of 
adjustment of status as a matter of discretion in the absence of 
unusual and outstanding countervailing equities that warrant adjustment 
of status?
    Should the fact that an arriving alien's parole or advance parole 
has been terminated or revoked, whether before or after the alien filed 
his or her adjustment of status application, be formalized in the 
regulations as a significant adverse factor that may warrant denial of 
adjustment of status as a matter of discretion, unless the alien 
establishes unusual or outstanding countervailing equities that warrant 
adjustment of status?
    Should the regulations be amended to adopt a presumption in the 
final rule against a favorable exercise of discretion if specific 
factors exist, or by determining that certain classes of aliens should 
not favorably receive an exercise of discretion? Other alternative 
formulations will also be considered.
    In addition, the Secretary and the Attorney General also are 
interested in receiving public comment on whether the regulations 
should be amended to provide additional regulatory guidance on when the 
immigration judges and the BIA should exercise discretion to grant or 
deny a continuance for arriving aliens in removal proceedings who have 
filed an application for adjustment of status which remains pending 
with USCIS.
    While noting that it will ordinarily be appropriate for an 
immigration judge to exercise his or her discretion favorably to grant 
a continuance or motion to reopen in the case of an alien who has 
submitted a prima facie approvable visa petition and adjustment 
application in the course of a deportation hearing, the BIA has 
recognized that this is not an inflexible rule and that an immigration 
judge has discretion in an appropriate case to deny a continuance even 
if the alien is the beneficiary of a visa petition or labor 
certification that, if approved, could render the alien eligible for 
adjustment of status. Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978) 
(``It clearly would not be an abuse of discretion for the immigration 
judge to summarily deny a request for a continuance * * * upon his 
determination that the visa petition is frivolous or that the 
adjustment application would be denied on statutory grounds or in the 
exercise of discretion notwithstanding the approval of the 
petition.''), modified on other grounds by Matter of Arthur, 20 I&N 
Dec. 475 (BIA 1992), and Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). 
The courts of appeals also have addressed some of the issues pertaining 
to the discretionary decision to grant or deny a continuance in this 
circumstance, see, e.g., Morgan v. Gonzales, 2006 U.S. App. LEXIS 10044 
(2d Cir. April 20, 2006) (holding that it was not an abuse of 
discretion for an immigration judge to deny a continuance under the 
circumstances presented in the case); Benslimane v. Gonzales, 430 F.3d 
828 (7th Cir. 2005) (holding that it was an abuse of discretion to deny 
a continuance where the alien had complied with all the requirements 
for adjustment of status and was merely waiting action on his wife's 
visa petition); Pede v. Gonzales, 442 F.3d 570 (7th Cir. 2006) 
(distinguishing Benslimane and holding that it was acceptable for an 
immigration judge to deny a continuance when there was no hope that the 
adjustment application would be granted); Hassan v. INS, 110 F.3d 490 
(7th Cir. 1997) (underscoring that Matter of Garcia did not ``establish 
an inflexible rule'' requiring a continuance).
    Accordingly, the Secretary and the Attorney General are soliciting 
comments on the standards for the granting of continuances to arriving 
aliens in removal proceedings while applications for adjustment of 
status are pending with USCIS. In particular, we are interested in 
comments regarding the following questions:
    Should the regulations be amended to provide limitations on the 
exercise of discretion in granting continuances when an arriving 
alien's application for adjustment of status is pending with USCIS, for 
example (1) by providing that the pendency of application for 
adjustment of status filed by an arriving alien with USCIS does not 
require the granting of a continuance; (2) by establishing a rebuttable 
presumption against granting a continuance in this situation; or (3) by 
defining limited circumstances in which a continuance would be granted?
    As a general proposition, the Secretary and the Attorney General 
may use rulemaking to limit the exercise of discretion to grant forms 
of relief to those aliens who have attempted to evade the consular visa 
process by seeking parole into the United States and then applying for 
adjustment of status. The Supreme Court has recognized that an agency 
head ``has the authority to rely on rulemaking to resolve certain 
issues of general applicability unless Congress clearly expresses an 
intent to withhold that authority.'' Lopez v. Davis, 531 U.S. at 244 
(quoting American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991)); see 
also Yang v. INS, 79 F.3d 932, 936 (9th Cir. 1996). Specifically, in 
Lopez the Supreme Court upheld a Federal Bureau of Prisons rule that 
``categorically denies early release to prisoners whose current offense 
is a felony attended by `the carrying, possession, or use of a firearm' 
'' against a challenge in which plaintiffs contended that denials of 
early release were required to be made on a case-by-case basis for each 
individual. 531 U.S. at 231-232 (quoting 28 CFR 550.58(a)(1)(vi)(B)). 
The Secretary and the Attorney General reserve the authority to make 
such a determination by rule and to make that determination

[[Page 27590]]

in a final rule on the basis of this public notice and request for 
comment.
    In this specific instance, the Secretary and the Attorney General 
invite public comment on whether rules limiting the exercise of 
discretion or implementing a presumption against favorably exercising 
discretion should be established. The Secretary and the Attorney 
General may exercise their respective discretions by rule to narrow the 
scope of discretion delegated to their respective subordinates in 
promulgating a final rule. In the meantime, USCIS, the immigration 
judges, and the BIA will continue to apply the discretionary factors in 
accordance with the general principles noted above, and guided by prior 
decisions.

V. Regulatory Requirements

A. Administrative Procedure Act

    The Secretary and the Attorney General have authority to issue 
these rules as interim rules under the Administrative Procedure Act, 
with provision for post-promulgation public comments. See 5 U.S.C. 553. 
The Secretary and Attorney General find that good cause exists to 
remove 8 CFR 245.1(c)(8) and 1245.1(c)(8) without notice and comment. 
See 5 U.S.C. 553(b)(B) (notice and comment requirements not applicable 
in circumstances in which ``notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest''). 
These regulations have been invalidated by four federal appellate 
courts in decisions concluding that the regulations are inconsistent 
with section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. 
See Scheerer v. U.S. Atty. Gen., ---- F.3d ----, 2006 WL 947680 (11th 
Cir. April 13, 2006); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005); 
Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Zheng v. Gonzales, 422 
F.3d 98 (3d Cir. 2005). Recently, the Fifth and Eighth Circuits upheld 
the regulations. See Momin v. Gonzales, ---- F.3d ----, 2006 WL 1075235 
(5th Cir. April 24, 2006); Mouelle v. Gonzales, 416 F.3d 923 (8th Cir. 
2005), petition for reh'g en banc denied (2005), petition for cert. 
filed No. 05-1092 (February 23, 2006). This circuit split has 
engendered considerable confusion about the ongoing enforceability of 
the regulations, and it is decidedly in the public interest for the 
agencies responsible for administering these regulations to end that 
confusion as soon as possible and thereby promote the consistent 
nationwide application of federal immigration law. 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. Under these circumstances, 
there is good cause for dispensing with notice and comment procedures.
    The revised 8 CFR 245.2(a)(1) and 8 CFR 1245.2(a)(1)(i)-(ii) also 
are rules of agency practice and procedure and may be adopted without 
prior notice and comment. See 5 U.S.C. 553(b)(A). These provisions do 
not affect how the Secretary's or the Attorney General's subordinates 
may rule on the merits of the factual and legal issues in any 
particular removal proceeding. Rather, these provisions merely clarify 
which Departmental component has jurisdiction to adjudicate adjustment 
applications for arriving aliens who have been paroled and placed in 
removal proceedings, consistent with current regulations and agency 
practice.
    Finally, the Secretary and the Attorney General find that the 
amendment to 8 CFR 1.1(q) and 1001.1(q) are interpretive rules that may 
be issued without prior notice and comment. See 5 U.S.C. 553(b)(A). 
These amendments make no substantive change to the existing definition 
of ``arriving alien,'' but only express the terms of that definition 
more clearly. See, e.g., Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 
1151 (9th Cir. 2002) (``Interpretive rules are not subject to APA 
notice or comment provisions because they clarify or explain existing 
law or regulations in order to advise the public of the agency's 
construction of the rules it administers.''); Stuart-James Co., Inc. v. 
SEC, 857 F.2d 796, 801 (D.C. Cir. 1988) (notice and comment not 
required where the new rule is merely a ``clarification or explanation 
of existing laws or regulations'')
    For all of the foregoing reasons, it is not necessary under the 
Administrative Procedure Act, 5 U.S.C. 553, to provide prior notice and 
comment before promulgating these interim final rules.
    The Secretary and the Attorney General also find that good cause 
exists to make these rules effective immediately upon publication. See 
5 U.S.C. 553(d). First, because removing 8 CFR 245.1(c)(8) and 
1245.1(c)(8) ``grants or recognizes an exemption or relieves a 
restriction,'' it is exempt from the APA's general requirement that a 
rule be published 30 days before its effective date. 5 U.S.C. 
553(d)(1). Removing those regulations relieves the restrictions 
currently imposed on the ability of paroled aliens in removal 
proceedings to apply for adjustment of status. See, e.g., Independent 
U.S. Tanker Owners Comm. v. Skinner, 884 F.2d 587, 591-92 (D.C. Cir. 
1989). In addition, for the reasons stated above with respect to the 
usual notice and comment requirements, there is good cause for this 
repeal to take effect immediately. The removal of 8 CFR 245.1(c)(8) and 
8 CFR 1245.1(c)(8) therefore is effective upon publication and is 
applicable to all cases pending administrative or judicial review on or 
after that date.
    Finally, the amendments to 8 CFR 1.1(q), 245.2(a)(1), 1001.1(q), 
1245.2(a)(1)(i), and 1245.2(a)(ii) simply clarify existing regulations 
without substantive change. This renders them ``interpretive rules'' 
that may take immediate effect under 5 U.S.C. 553(d)(1).

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) mandates that an agency 
conduct an RFA analysis when an agency is ``required by section 553 * * 
*, or any other law, to publish general notice of proposed rule making 
for any proposed rule.'' 5 U.S.C. 603(a). RFA analysis is not required 
when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 
553(b). These rules are exempt from notice and comment rulemaking. 
Therefore, no RFA analysis under 5 U.S.C. 603 is required for these 
rules.

C. Unfunded Mandates Reform Act of 1995

    These rules will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    These rules are not major rules as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. These 
rules will not result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, innovation, or 
on the ability of United States-based companies to compete with 
foreign-based companies in domestic and export markets.

E. Executive Order 12866 (Regulatory Planning and Review)

    The DHS and DOJ consider these rules to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and

[[Page 27591]]

Review. Accordingly, this regulation has been submitted to the Office 
of Management and Budget for review. No cost-benefit analysis has been 
prepared, however, because these rules are not ``significant'' for 
economic reasons. These rules will not have an annual effect on the 
economy of $100 million or more, nor will they have other adverse 
economic effects.

F. Executive Order 13132 (Federalism)

    These rules will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, these rules do not have sufficient federalism 
implications to warrant preparation of a federalism summary impact 
statement.

G. Executive Order 12988 (Civil Justice Reform)

    These rules have been prepared in accordance with the standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

    These rules do not create any information collection requirement.

List of Subjects

8 CFR Part 1

    Administrative practice and procedure; Immigration.

8 CFR Part 245

    Aliens; Immigration; Reporting and recordkeeping requirements.

8 CFR Part 1001

    Administrative practice and procedure; Immigration.

8 CFR Part 1245

    Aliens; Immigration; Reporting and recordkeeping requirements.

Department of Homeland Security

8 CFR Chapter I

0
Accordingly, for the reasons stated in the joint preamble, and pursuant 
to my authority as Secretary of Homeland Security, chapter I of title 
8, Code of Federal Regulations is amended as follows:

PART 1--DEFINITIONS

0
1. The Authority citation for part 1 continues to read as follows:

    Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public 
Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).


0
2. Section 1.1(q) is amended by revising the last sentence to read as 
follows:


Sec.  1.1  Definitions.

* * * * *
    (q) * * * An arriving alien remains an arriving alien even if 
paroled pursuant to section 212(d)(5) of the Act, and even after any 
such parole is terminated or revoked. However, an arriving alien who 
was paroled into the United States before April 1, 1997, or who was 
paroled into the United States on or after April 1, 1997, pursuant to a 
grant of advance parole which the alien applied for and obtained in the 
United States prior to the alien's departure from and return to the 
United States, will not be treated, solely by reason of that grant of 
parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act.
* * * * *

PART 245--ADJUSTMENT OF STATUS TO THAT OF AN ALIEN LAWFULLY 
ADMITTED FOR PERMANENT RESIDENCE

0
3. The Authority citation for part 245 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255, sec. 202, Pub. L. 
105-100, 111 Stat 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; 8 CFR part 2.


Sec.  245.1  [Amended]

0
4. Section 245.1 is amended by:
0
a. Removing paragraph (c)(8); and
0
b. Redesignating paragraph (c)(9) as paragraph (c)(8).
0
5. Section 245.2 is amended by revising paragraph (a)(1) to read as 
follow:


Sec.  245.2  Application.

    (a) * * *
    (1) Jurisdiction. USCIS has jurisdiction to adjudicate an 
application for adjustment of status filed by any alien, unless the 
immigration judge has jurisdiction to adjudicate the application under 
8 CFR 1245.2(a)(1).
* * * * *

    Dated: May 8, 2006.
Michael Chertoff,
Secretary of Homeland Security.

Department of Justice

8 CFR Chapter V

0
Accordingly, for the reasons stated in the joint preamble and pursuant 
to the authority vested in me as the Attorney General of the United 
States, chapter V of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 1001--DEFINITIONS

0
1. The Authority citation for part 1001 continues to read as follows:

    Authority: 8 U.S.C. 1101; 8 U.S.C. 1103.

0
2. Section 1001.1(q) is amended by revising the last sentence to read 
as follows:


Sec.  1001.1  Definitions.

* * * * *
    (q) * * * An arriving alien remains an arriving alien even if 
paroled pursuant to section 212(d)(5) of the Act, and even after any 
such parole is terminated or revoked. However, an arriving alien who 
was paroled into the United States before April 1, 1997, or who was 
paroled into the United States on or after April 1, 1997, pursuant to a 
grant of advance parole which the alien applied for and obtained in the 
United States prior to the alien's departure from and return to the 
United States, will not be treated, solely by reason of that grant of 
parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act.
* * * * *

PART 1245--ADJUSTMENT OF STATUS TO THAT OF AN ALIEN LAWFULLY 
ADMITTED FOR PERMANENT RESIDENCE

0
3. The Authority citation for part 1245 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255, sec. 202, Pub. L. 
105-100, 111 Stat 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 
2681; 8 CFR part 2.


Sec.  1245.1  [Amended]

0
4. Section 1245.1 is amended by
0
a. Removing paragraph (c)(8); and
0
b. Redesignating paragraph (c)(9) as paragraph (c)(8).
0
5. Section 1245.2 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  1245.2  Application.

    (a) General.
    (1) Jurisdiction.
    (i) In General. In the case of any alien who has been placed in 
deportation proceedings or in removal proceedings (other than as an 
arriving alien), the immigration judge hearing the proceeding has 
exclusive jurisdiction to adjudicate any application for adjustment of 
status the alien may file.
    (ii) Arriving Aliens. In the case of an arriving alien who is 
placed in removal proceedings, the immigration judge does not have 
jurisdiction to adjudicate any application for adjustment of status 
filed by the arriving alien unless:
    (A) The alien properly filed the application for adjustment of 
status with

[[Page 27592]]

USCIS while the arriving alien was in the United States;
    (B) The alien departed from and returned to the United States 
pursuant to the terms of a grant of advance parole to pursue the 
previously filed application for adjustment of status;
    (C) The application for adjustment of status was denied by USCIS; 
and
    (D) DHS placed the arriving alien in removal proceedings either 
upon the arriving alien's return to the United States pursuant to the 
grant of advance parole or after USCIS denied the application.

    Dated: May 8, 2006.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 06-4429 Filed 5-11-06; 8:45 am]
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