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Interim Decision #3659

Matter of Maria C. YAURI, Respondent

File A071 610 438 - Los Angeles, California

Decided October 28, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) With a narrow exception not applicable to this case, the United States Citizenship and

Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving

alien’s application for adjustment of status under 8 C.F.R. § 245.2(a)(1) (2009) and agrees

that it retains jurisdiction to adjudicate the application even where an unexecuted

administratively final order of removal remains outstanding.

(2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings

of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief

over which the Board and the Immigration Judges have no jurisdiction, especially where

reopening is sought simply as a mechanism to stay the final order while the collateral

matter is resolved by the agency or court having jurisdiction to do so.

(3) With regard to untimely or number-barred motions to reopen, the Board will not

generally exercise its discretion to reopen proceedings sua sponte for an arriving alien

to pursue adjustment of status before the USCIS.

FOR RESPONDENT: Stuart I. Folinsky, Esquire, Los Angeles, California

AMICUS CURIAE:1 Mary A. Kenney, Esquire, Washington, D.C.

FOR THE DEPARTMENT OF HOMELAND SECURITY: James M. Left, Senior Attorney

BEFORE: Board Panel: HOLMES and HESS, Board Members; KENDALL CLARK,

Temporary Board Member.

HOLMES, Board Member:

This matter was last before the Board on December 2, 2003, when

we entered the final administrative order in these removal proceedings,

dismissing the respondent’s appeal from the Immigration Judge’s April 30,

2002, decision. On March 24, 2008, over 4 years after that final order, the

1

We acknowledge and appreciate the very helpful briefs submitted by the parties and

by amicus curiae, representing the American Immigration Law Foundation.

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respondent filed an untimely motion to reopen to pursue an application for

adjustment of status. With certain exceptions not applicable to the

respondent’s motion, a motion to reopen in any case previously the subject

of a final decision by the Board must be filed no later than 90 days after the

date of that decision. Section 240(c)(7)(C)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1229a(c)(7)(C)(i) (2006); 8 C.F.R. § 1003.2(c)(2)

(2009). The respondent’s motion is therefore untimely. The Department

of Homeland Security (“DHS”) filed an opposition to the motion to reopen.

The respondent concedes that her motion is untimely, but she nevertheless

urges that sua sponte reopening by the Board is warranted because

of a change of law and because exceptional circumstances are present in her

case. 8 C.F.R. § 1003.2(a); see also Matter of G-D-, 22 I&N Dec. 1132

(BIA 1999); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). She acknowledges

that she is an “arriving alien” who must pursue her application for adjustment

of status with the United States Citizenship and Immigration Services

(“USCIS”), an agency within the DHS. However, she contends that the 2006

regulatory changes affecting this group of adjustment applicants and the

USCIS’s rejection of her adjustment application necessitate the reopening

of the removal proceedings against her. 8 C.F.R. §§ 1.1(q), 1001.1(q) (2009)

(defining the term “arriving alien”); 8 C.F.R. §§ 245.2(a)(1) (setting forth the

jurisdiction of the USCIS over adjustment applications for arriving

aliens), 1245.2(a)(1)(ii) (2009) (setting forth the limited circumstances

in which an Immigration Judge will have jurisdiction over the adjustment

application of an arriving alien); see also Eligibility of Arriving Aliens

in Removal Proceedings To Apply for Adjustment of Status and Jurisdiction

To Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27,585-92

(May 12, 2006) (interim rule implementing changes to the regulations and

providing a process through which arriving aliens may apply for adjustment

of status). She argues that we should reopen her removal proceedings and

continue them indefinitely so that she does not have an outstanding order

of removal pending against her while she pursues her application before the

USCIS.

On June 1, 2009, after the submission of supplemental briefs in this matter,

and after the issues raised in the respondent’s motion had been considered

by the Board, the DHS filed a separate motion to reopen and terminate these

removal proceedings on the basis that the USCIS had adjudicated the

respondent’s adjustment of status application and had granted that application

on February 25, 2009. We will address this separate motion later in this

decision, but first we will adjudicate the respondent’s pending motion

to reopen. The grant of lawful permanent resident status to the respondent

does not obviate the need for the Board to provide guidance to the Immigration

Judges, the parties, and the general public with regard to recurring issues

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presented in her motion, which otherwise are often overcome by events before

they can be separately addressed.

I.

As a preliminary matter, aside from motions to reconsider, motions

before the Board fall into three broad categories: (1) motions to remand that

are filed in the course of ongoing, “open” proceedings before the Board;

(2) motions to reopen proceedings that satisfy the time and number

requirements set forth in 8 C.F.R. § 1003.2(c)(2); and (3) motions that do not

meet the time and number requirements imposed by 8 C.F.R. § 1003.2(c)(2).

See also sections 240(c)(7)(A), (C)(i) of the Act. Each category of motion has

its own separate requirements that must be satisfied to allow or warrant

reopening. We note this at the outset because it is not unusual for these

separate filing requirements to be inadequately addressed or simply overlooked

in motions pending before the Board, and perhaps at times not adequately

addressed in the adjudication of the motion by the Board.

Where motions do not meet the filing requirements of 8 C.F.R.

§ 1003.2(c)(2) and do not qualify for a statutory or regulatory exception

to those requirements, proceedings can only be reopened under the Board’s

sua sponte authority. 8 C.F.R. § 1003.2(a). We emphasize that untimely

motions to reopen to pursue an application for adjustment of status, even for

cases that do not involve an “arriving alien,” do not fall within any of the

statutory or regulatory exceptions to the time limits for motions to reopen

before the Board and will ordinarily be denied.2 Sections 240(c)(7)(C)(ii)-(iv)

of the Act; 8 C.F.R. § 1003.2(c)(3). The only applications for adjustment

of status that are specifically excepted from the motion time limits are

those that involve a self-petition by a battered spouse, child, or parent

of a United States citizen or lawful permanent resident. Section

240(c)(7)(C)(iv) of the Act. The respondent does not assert that she falls

within this exception, or any other exception to the time limits, and her motion

reflects that the visa petition was filed on her behalf by her United States

2

The parties have raised various arguments regarding the applicability of the Board’s

decision in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), to the respondent’s case.

However, Velarde involved a timely motion to reopen before the Board, and that decision

listed the timely filing of a motion as the first criterion for the reasoning of that decision

to apply. Id. at 256. The respondent’s motion is not timely. Moreover, the principles set

forth in Velarde relate only to unadjudicated marriage-based visa petitions, whereas the visa

petition at issue in this case was filed on the respondent’s behalf by her United States citizen

daughter. Thus, Velarde has no applicability to the respondent’s case.

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citizen daughter in July 2007, over 3½ years after the Board’s final order

in this case. The respondent’s motion to reopen therefore turns on whether

sua sponte reopening is warranted. 8 C.F.R. § 1003.2(a); see also Matter

of G-D-, 22 I&N Dec. 1132; Matter of J-J-, 21 I&N Dec. 976.

II.

We also find it necessary to address whether the Board or the Immigration

Judge has jurisdiction over the respondent’s underlying adjustment application

and, if not, whether the USCIS has jurisdiction to adjudicate the adjustment

application of an arriving alien who is under a final order of removal. This

question arises in the context of regulations promulgated in May 2006, which

repealed an earlier regulation that barred “arriving aliens” from applying for

adjustment of status and conferred exclusive jurisdiction on the USCIS

to adjudicate adjustment applications filed by arriving aliens, with the

limited exception of adjustment applications filed by arriving aliens who

had been paroled into the United States to pursue a previously filed

adjustment application. 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1)(ii); 71 Fed. Reg.

at 27,591-92. The respondent does not contend that she falls within the limited

exception under which the Immigration Judge would have jurisdiction over her

adjustment application, and the record reflects that she was not paroled into the

United States to pursue a previously filed adjustment application. She did,

however, present evidence that the USCIS rejected the adjustment application

that she had filed in July 2007. The USCIS rejected the application because

a warrant of deportation had been issued against the respondent in 2004, and

she was therefore under removal proceedings before the Executive Office for

Immigration Review, of which the Board is the ultimate decision-making

body.

Given the apparent confusion regarding the USCIS’s jurisdiction under the

regulations to adjudicate the respondent’s adjustment application, the Board

requested supplemental briefing by the parties to specifically address this

question. The parties provided supplemental briefing, and a brief was also

filed on the respondent’s behalf by amicus curiae. In these briefs, the

parties have stated their agreement that, under the regulations promulgated

on May 12, 2006, jurisdiction over the respondent’s adjustment application lies

with the USCIS, and not with the Immigration Judge or the Board. Moreover,

the DHS has stated that it recognizes that the USCIS’s jurisdiction over the

adjustment application of an arriving alien exists regardless of whether there

is an unexecuted removal order that remains outstanding against the alien.

In the amicus brief filed by counsel from the American Immigration Law

Foundation, USCIS jurisdiction over such applications was acknowledged.

It was also acknowledged that most local offices of the USCIS recognize

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their jurisdiction or, in cases where they initially failed to do so, the issue

of jurisdiction was resolved once the regulations were brought to that office’s

attention.

Upon consideration of the supplemental briefs, we find no dispute over the

question of which agency has jurisdiction to adjudicate the respondent’s

adjustment of status application. Jurisdiction lies with the USCIS under the

applicable regulations, because the respondent is an arriving alien who does

not fall within the limited exception that would confer jurisdiction over the

application on the Immigration Judge or the Board. 8 C.F.R. § 245.2(a)(1).

Moreover, we emphasize that the existence of a final order of removal does not

preclude the USCIS from granting adjustment of status to an arriving alien

who is otherwise eligible for adjustment of status.

III.

Given that the Board has no jurisdiction over the underlying application,

the question arises whether we can or should reopen proceedings in which

a final administrative order has been entered while such an application

is being pursued before the USCIS. We have long been of the view that

administratively final exclusion, deportation, or removal proceedings should

not be reopened for matters over which neither the Immigration Judge nor the

Board has jurisdiction, and that referencing the absence of such jurisdiction

was a rational basis in itself to decline to reopen proceedings. See, e.g., Matter

of Castro, 21 I&N Dec. 379 (BIA 1996) (declining to reopen exclusion

proceedings for adjustment of status where the Immigration Judge did not have

jurisdiction in exclusion proceedings over an adjustment of status application

under the applicable regulations). Nevertheless, some courts of appeals

have recently remanded cases in which the Board denied motions solely

on the basis of the lack of jurisdiction over the underlying applications. See,

e.g., Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir. 2008); Sheng Gao Ni v. Bd.

of Immigration Appeals, 520 F.3d 125 (2d Cir. 2008); Potdar v. Keisler,

505 F.3d 680 (7th Cir. 2007), rev’d on reh’g sub nom. Potdar v. Mukasey,

550 F.3d 594 (7th Cir. 2008).

In Sheng Gao Ni v. Board of Immigration Appeals, 520 F.3d at 130, for

example, the United States Court of Appeals for the Second Circuit stated that

the “likely purpose” of a such an adjustment of status motion filed in removal

proceedings “was to permit petitioners to press their adjustment applications

before the USCIS without remaining subject to final orders of removal.” The

court ruled that a “rote recital of a jurisdictional statement—even if technically

accurate—does not adequately discharge the BIA’s duty to ‘consider the facts

of record relevant to the motion’ and provide a ‘rational explanation’ for its

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ruling.” Id. at 129-30 (quoting Melnitsenko v. Mukasey, 517 F.3d 42, 50 (2d

Cir. 2008)). It remanded the case for the Board to reconsider the issue and

provide adequate reasons for denying the motion.

In Kalilu v. Mukasey, 548 F.3d at 1218, the Ninth Circuit concluded

that the opportunity that the new regulation affords for an arriving alien

in removal proceedings to establish his eligibility for adjustment of status

“is rendered worthless where the BIA . . . denies a motion to reopen . . . that

is sought in order to provide time for USCIS to adjudicate a pending

application.” The Ninth Circuit further opined that, without reopening,

an alien with a prima facie valid Petition for Alien Relative (Form I-130)

or an adjustment application pending before the USCIS could be removed and,

if removed, his or her adjustment application would be deemed abandoned.

Id.

Given these decisions, we will attempt to more fully explain our general

position regarding motions to reopen proceedings that involve applications for

relief or other matters over which neither the Board nor the Immigration Judge

has jurisdiction.

To the extent that these decisions from the circuit courts can be read

to address respondents who are under administratively final orders of removal,

the decisions appear to indicate that the Board should be considering whether

our proceedings should be used as a vehicle, in effect, to “stay” execution

of the administratively final order of exclusion, deportation, or removal while

the arriving alien’s adjustment application is resolved by the USCIS.3 This

presents the question whether the Board can or should exercise its discretion

3

The Ninth Circuit, in which this case arises, held in Kalilu v. Mukasey, 548 F.3d

at 1217-18, that the Board abused its discretion in denying “solely on jurisdictional grounds”

an arriving alien’s motion to reopen to seek adjustment of status. In our decision, we had

determined that reopening and a remand were unwarranted because jurisdiction over any

adjustment application that the alien might file resided exclusively with the USCIS.

However, we had not discussed whether reopening could or should be granted in order

to “stay” the alien’s removal while the USCIS resolved his adjustment application on its

merits. Consequently, we do not view the Ninth Circuit’s subsequent reversal as foreclosing

us from now engaging in an examination of the extent of our authority to effectuate a “stay”

through the reopening of proceedings, although we acknowledge and will herein address the

court’s above-cited expression of concern about the potential ramifications of denying

reopening under such circumstances. Additionally, Kalilu involved a timely motion

to reopen (indeed, the motion apparently had been filed during the pendency of a Board

appeal and therefore was actually a pre-final-order motion to remand), as well

as circumstances that the court found to be governed by Matter of Velarde, 23 I&N Dec.

253. Kalilu v. Mukasey, 548 F.3d at 1218. In contrast, in this case the respondent’s motion

to reopen was untimely (as further discussed infra), and Velarde is inapposite. See supra

note 2.

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to reopen proceedings to effectively grant such a “stay” of a final order while

the alien pursues an independent adjustment of status application with the

USCIS.4

We do not view the Board’s authority to consider stays of execution of final

orders, which we have been granted under Federal regulations, to extend this

far. In particular, we have been granted limited stay authority under the

regulations, which is almost exclusively tied to pending motions before the

Board. 8 C.F.R. § 1003.2(f). Under that authority, if there is no automatic

stay under the regulations, we may determine whether to grant a stay

of execution of the final deportation or removal order while we consider the

motion that is pending before us. Id. Likewise, an Immigration Judge also has

authority to stay execution of a final order while a motion is pending before

the Immigration Court. 8 C.F.R. § 1003.23(b)(1)(v) (2009). The stay

authority granted to the Board and Immigration Judges does not provide

general authority to grant stays of administratively final orders in conjunction

with matters over which we have no authority. Rather, the limited stay

authority provides the opportunity to stay proceedings while a pending motion

is adjudicated. That stay authority also terminates upon adjudication of the

pending motion.

It is our understanding of the law that if an alien under a final order

of exclusion, deportation, or removal is seeking some form of relief from

a third party5 over which the Immigration Judges and the Board lack

jurisdiction, the question whether the alien is either entitled to a stay

of removal or warrants a stay as a matter of discretion while such application

or request is pending is not within our jurisdiction. Any stay request should

go to the agency or court that does have jurisdiction over the matter. In this

case, the parties agree that the USCIS has jurisdiction over the respondent’s

adjustment application, and her request for a stay should therefore go to the

DHS. 8 C.F.R. §§ 241.6(a), 1241.6(a) (2009).6 If an arriving alien under

4

In our view, whether phrased in terms of “staying” removal, or “lifting” an order

of removal, or reopening the proceedings to provide time for the USCIS to adjudicate

a pending application without the alien “being subject to a final order of removal,” the actual

remedy sought is a stay of removal pending adjudication of an application by the USCIS.

See, e.g., Kalilu v. Mukasey, 548 F.3d 1215; Sheng Gao Ni v. Bd. of Immigration Appeals,

520 F.3d 125; Potdar v. Keisler, 505 F.3d 680.

5

In this instance, jurisdiction over the matter at issue is with the USCIS. However, parties

could raise similar arguments with regard to matters pending in other forums.

6

In its supplemental brief, the DHS outlines the process for obtaining a stay of the final

removal order, as well as the process for obtaining deferred enforcement of the outstanding

removal order. The DHS also points out that the respondent did not present any evidence

(continued...)

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a final order of removal has the right to remain in the United States to pursue

an adjustment application, proceedings should not need to be reopened

to protect it. On the other hand, if the alien does not have such a right, then the

discretion to allow him or her to remain in the United States until the

application is adjudicated lies, if at all, with the agency or court having

jurisdiction over the application, here the DHS. The DHS also has its separate

authority to grant a respondent deferred action in the exercise of its

prosecutorial discretion, which is not subject to review by the Board or the

Immigration Judges. See Matter of Quintero, 18 I&N Dec. 349, 349-50 (BIA

1982); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir.

2001); Matter of Singh, 21 I&N Dec. 427, 433 (BIA 1996).

Accordingly, we conclude that we have not been granted authority to reopen

the proceedings of respondents who are under a final administrative order

of removal to pursue matters that could affect their removability if we have

no jurisdiction over such matters. This is especially so where reopening

is sought simply as a mechanism to stay a final order of removal while the

collateral matter is being resolved.

IV.

Finally, and separately from any question of jurisdiction, with regard

to untimely or number-barred motions to reopen, we conclude that sua sponte

reopening of exclusion, deportation, or removal proceedings pending a third

party’s adjudication of an underlying application that is not itself within our

jurisdiction ordinarily would not be warranted as a matter of discretion.

8 C.F.R. § 1003.2(a); see also Matter of G-D-, 22 I&N Dec. 1132; Matter

of J-J-, 21 I&N Dec. 976.7

As a practical matter, Immigration Judges and the Board have limited and

finite adjudicative and administrative resources, and those resources are best

allocated to matters over which we do have jurisdiction. Among the

costs of reopening final proceedings in cases such as the one before us,

where we have no jurisdiction over the underlying relief requested, are

the practical and administrative difficulties associated with maintaining open

cases that would rely on outside considerations and would become part

(...continued)

that she attempted to request a stay from the DHS, or that such a request was denied by that

agency.

7

The respondent also urges that the Board should reopen proceedings sua sponte based

on a change in law. Matter of G-D-, 22 I&N Dec. 1132. However, because we do not find

that the change at issue here, i.e., the 2006 regulations, conferred jurisdiction over the

underlying application on the Board, this argument is not persuasive.

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of already-crowded dockets. Immigration Judges, for example, would

be required to schedule and oversee matters over which they play

no substantive role, because the cases would once again be on their docket.

If the application is ultimately denied, the Immigration Judge is placed in the

position of having to enter a further order or decision that simply sets forth

information provided by others, assuming such information is actually

provided to the Immigration Judge in a timely manner. There would

be nothing to preclude the respondent from filing an appeal to the Board from

such an order, unnecessarily adding to our pending case load, and despite the

fact that we would have no review authority over aspects of that decision.

When the matters are ones over which the Board and the Immigration

Judges actually do have jurisdiction, these are simply the necessary “costs”

of an adjudication system. But such is not the case if we are obliged to reopen

proceedings while third parties resolve matters over which we have no direct

or review authority.8 Given our lack of jurisdiction over this category

of adjustment applications, and because a process exists for requesting a stay

from the DHS, the administrative and practical costs of reopening weigh

heavily in our discretionary analysis. Thus, we will generally decline

to exercise our discretion to reopen proceedings sua sponte under such

circumstances. Matter of G-D-, 22 I&N Dec. at 1133-34 (recognizing that

sua sponte authority is “an extraordinary remedy reserved for truly exceptional

circumstances”); see also Matter of J-J-, 21 I&N Dec. 976.

In sum, we conclude that we generally lack authority to reopen final

exclusion, deportation, or removal proceedings where an alien seeks to pursue

relief over which neither the Board nor the Immigration Judge has jurisdiction.

In addition, we find that the stay authority we have been granted by regulation

8

The “practical” concerns in ongoing proceedings that have not become final are

fundamentally different. There can be sound reasons to continue or administratively close

proceedings while matters outside the Immigration Judge’s jurisdiction are resolved, often

including reasons directly related to administrative efficiency and the best utilization

of adjudicative resources. See, e.g., Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (setting

forth considerations for granting a continuance when a family-based visa petition is pending

before the USCIS). Further, the Attorney General and the Secretary of Homeland Security

have solicited 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.”

71 Fed. Reg. at 27,589 (Supplementary Information). Thus, while we acknowledge the

arguments raised surrounding the question whether proceedings can or should be continued

when an arriving alien’s adjustment application is pending with the USCIS, our decision

in this case does not resolve that issue. Different considerations also may arise in the context

of joint motions to reopen, where the parties are in agreement that the time limits should not

apply to the motion to reopen and that proceedings should be reopened for agreed-upon

purposes. 8 C.F.R. § 1003.2(c)(3)(iii).

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does not extend to granting reopening of proceedings in order to effectively

grant a “stay” of an outstanding final order of exclusion, deportation,

or removal while a matter over which we lack jurisdiction is resolved. Finally,

we will not generally exercise our discretion to reopen proceedings sua sponte

for an arriving alien to pursue an adjustment of status application before the

USCIS. To do otherwise would place an arriving alien who files an untimely

motion to reopen proceedings in a more favorable position than any other alien

who files an untimely motion seeking adjustment of status and does not

otherwise qualify for an exception to the time limits imposed on motions

to reopen.

In this case, the respondent has presented no exceptional circumstances, and

her motion does not persuade us to sua sponte reopen these proceedings, which

have been administratively final since December 2003, in order for her

to pursue her application for adjustment before the USCIS. Matter of J-J-,

21 I&N Dec. 976. The respondent’s motion will therefore be denied

as untimely filed.

V.

Having resolved the issues raised in the respondent’s motion to reopen,

we turn, as a final matter, to the DHS’s motion to reopen and terminate these

removal proceedings based on the USCIS’s grant of lawful permanent resident

status to the respondent on February 25, 2009.

As we noted earlier, it is not necessary to reopen or terminate proceedings

in order to allow an alien to pursue an application for adjustment of status

before the USCIS. The fact that the USCIS has, in fact, completed its

adjudication of the respondent’s adjustment application—despite initially

rejecting that application—and granted the respondent lawful permanent status

while her motion was pending with the Board merely reinforces our

determination that sua sponte reopening is not generally warranted. There

is no indication that the DHS attempted to execute the removal order during

that period of adjudication. However, the respondent could have sought a stay

of her final removal order from the DHS, if it had been necessary.

See 8 C.F.R. §§ 241.6(a), 1241.6(a). The respondent’s adjustment application

has been processed as envisioned under the new regulations without resorting

to reopening and “staying” the removal proceedings, and she has been granted

the status for which she applied with the USCIS. Given these circumstances,

reopening solely for termination of the proceedings is warranted and we will

grant the DHS’s motion.

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ORDER: The respondent’s motion to reopen is denied.

FURTHER ORDER: The motion of the Department of Homeland

Security to reopen and terminate is granted, and these removal proceedings are

terminated.

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