Mr. Lee's 6/10/06 Three Comments to the Department of
Homeland Security Interim Rule of May 12, 2006, Withdrawing
the Regulation on the Prohibition Against Paroled "Arriving
Aliens" Adjusting Status to Permanent Residence
An interim rule by EOIR and USCIS deletes the absolute
bar on an “arriving alien’s” ability to adjust
status if he or she is in removal proceedings. The interim rule,
published on 5/12/2006, is effective immediately. The interim rule
amends the regulations so that USCIS will have jurisdiction over
adjustment applications notwithstanding the removal proceedings.
By Alan Lee, Esq.†‡
(The below comments were e-mailed by Mr. Lee to the Department
of Homeland Secuiry on 6/10/06 in response to the Department's interim
Thank you for your interim rule of May 12, 2006, withdrawing the
regulation on the prohibition against paroled "arriving aliens"
adjusting status to permanent residence. I have three comments:
1 Your suggestions are specious that an unfavorable exercise of
discretion should be presumed in the absence of unusual and outstanding
countervailing equities for this class of individuals in general;
that a significant adverse factor should be the aliens' avoiding
the immigrant visa issuance process and arriving at a port of entry
as putative nonimmigrants or with otherwise invalid or fraudulent
documents; and the same negative outlook should govern the handling
of adjustment of status applications for arriving aliens whose parole
or advance parole statuses have been terminated or revoked. Such
suggestions should be abandoned for the following reasons:
Blackballing an entire class of individuals as secondary strategy
because the DHS has lost in four out of six circuit courts makes
the agency out to be a sore loser like one whose team is being wiped
out by the opposition and decides to take his ball home. This Administration
unfortunately appears to favor the strategy of blackballing classes
of individuals, e.g., the fate of those entering the U.S. by sea
who are caught upon landing or of those caught within 100 miles
of the borders within 14 days of entry - but this certainly does
not promote the rule of law to allow adjustment of status to those
who have been admitted or paroled. There is no distinction drawn
in the law under section 245(a) between those admitted and those
paroled, and the DHS should draw no distinction now.
The agency suggestion that avoiding regular immigrant visa issuance
processing should be a significant adverse factor for arriving aliens
is without precedent for those arriving with invalid documentation.
In such case, no fraud is involved, and there is no distinction
between them and those entering the country without inspection except
that the arriving aliens come to a port of entry. Even though the
the Fifth Amendment rights of equal protection do not strictly apply
to aliens, it is difficult if not impossible to see the difference
between the two classes. In a sense, individuals who evade inspection
by not coming to a port of entry are even more culpable in not giving
DHS an opportunity to intercept them prior to entry. For cases involving
fraud, the present procedure is adequate as U.S.C.I.S. now demands
that such aliens submit an I-601 waiver based on exceptional hardship
to a U.S. citizen or LPR spouse or parent.
DHS' third point of holding as an unfavorable factor the termination
or revocation of advance parole or parole is equally specious as
1.) there are no controls as to when the Service can terminate or
revoke the status, leading to the very real possibility that the
Service will take such actions after an I-485 application has been
filed or at any time that it desires for any reason that it wishes
to do so; 2.) in effect, it amounts to drastically enhancing the
penalty on an alien for an overstay of legal status and this should
not be done since the act of overstaying does not imply bad moral
character or any other moral defect that should lead to an adverse
determination on the exercise of discretion. In adjustment of status
determinations today as in the past, overstaying is not a negative
discretionary factor; and 3.) DHS saw enough humanitarian reason
to parole the arriving aliens in the first place. Why should its
later action of terminating or revoking such parole blackball these
very people that DHS thought had enough merit for the exercise of
parole previously? Did these individuals change stripes while here
in the U.S.? If they committed crimes or other acts while enjoying
the hospitality of this country, they should be charged with those
acts in removal proceedings.
2. Your request for comment on whether regulations should be amended
to provide further regulatory guidance on when immigration judges
(IJs) 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 U.S.C.I.S. is certainly a subject which should be addressed,
and I strongly believe that much more latitude should be given to
the IJs and BIA to grant continuances under those circumstances.
In our litigation, we have certainly noticed that the U.S.C.I.S.
is in no rush at all and, in many cases, delays adjudications of
visa petitions and of I-485s of principal aliens when individuals
are in proceedings. This creates an unfair situation under current
law in which immigration judges feel the need to go forward and
deny adjustment of status applications where the government attorneys
refuse to agree to termination or continuance of proceedings in
the interim. In one case, the ICE attorney was adamant that the
I-485 application of the principal alien (not under proceedings)
would never be approved and the I J finally ordered removal of the
dependent who had filed an I-485 after opposition by the government
to continuances and termination, despite our objection that the
government attorney would not be the adjudicator of the visa petition.
While on appeal to the BIA, the I-485 of the principal alien was
approved and the green card issued. This is just one example of
the abuse that we see in the system presently, and we do not understand
why individuals should be prejudiced by government imposed delay.
In point of fact, penalties should be assessed against the government
for delay in these cases rather than DHS entertaining thoughts of
further institutionalizing the abuse. We strongly urge a more liberal
rather than restrictive rule of law on continuances.
3. The DHS in this interim rule should take this opportunity to
correct its implausible definition of "arriving alien",
to state that the term "arriving alien" only applies to
those entering the U.S. on or after April 1, 1997, for all purposes.
The term did not exist prior to the IIRIRA, and the Service has
invited another set of challenges on the issue of retroactivity
where aliens may have arrived at ports of entry and been detained
by legacy INS long before IIRIRA, but were only put into proceedings
on or after April 1, 1997. Such clarification would make sense not
only because of the agency's present bifurcated position on individuals
caught in this position being considered arriving aliens for one
purpose and not another, but also because the U.S. only announced
a get-tough border enforcement policy with the passage of IIRIRA.
Your kind consideration of my comments would be appreciated.
Very Truly Yours,
Alan Lee, Esq.