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Interim Decision #3533

In re Jian An WANG, Respondent

A29 714 147 - New York

Decided May 25, 2006

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien who entered the United States without inspection is not eligible for adjustment

of status under the Chinese Student Protection Act of 1992, Pub. L. No. 102-404, 106

Stat. 1969 (“CSPA”).

(2) An alien whose CSPA application for adjustment of status was denied as a result of the

alien’s entry without inspection may not amend or renew the application in immigration

proceedings in conjunction with section 245(i) of the Immigration and Nationality Act,

8 U.S.C. § 1255(i) (2000).

FOR RESPONDENT: Jeffrey E. Baron, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Susan M. Beschta, Assistant

Chief Counsel

BEFORE: Board Panel: HOLMES, HURWITZ, and MILLER, Board Members.

HOLMES, Board Member:

The United States Court of Appeals for the Second Circuit has remanded

this case with a request that we address a number of issues concerning the

respondent’s eligibility for adjustment of status under the Chinese Student

Protection Act of 1992, Pub. L. No. 102-404, 106 Stat. 1969 (enacted Oct. 9,

1992) (“CSPA”). After considering these issues, we again find that the

respondent is ineligible for adjustment of status. We will therefore sustain

the appeal of the Department of Homeland Security (“DHS”) from the

Immigration Judge’s grant of adjustment of status and remand the record to

permit the respondent to apply for any other relief for which he may be

eligible.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of the People’s Republic of China

(“PRC”) who entered the United States on January 8, 1990, without

inspection. On January 22, 1990, deportation proceedings were initiated upon

the issuance of an Order to Show Cause, Notice of Hearing, and Warrant for

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Arrest of Alien (Form I–221S). In August 1990, by agreement of both parties,

proceedings were administratively closed.

On July 15, 1993, the respondent filed an application for adjustment of

status pursuant to the Chinese Student Protection Act with the district director

of the Immigration and Naturalization Service.1 On November 15, 1994, the

district director denied the respondent’s application, finding that his entry into

the United States without inspection rendered him ineligible for CSPA

adjustment. In October 1998, the respondent filed a motion to recalendar

deportation proceedings in order to renew his adjustment application before

the Immigration Judge. After this motion was granted, the respondent filed

a new CSPA application for adjustment of status with the Immigration Court,

which was date-stamped February 2, 1999. On January 28, 1999, he also paid

the additional $1000 fee required for adjustment of status under section 245(i)

of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (Supp. V 1999).

The Immigration Judge granted his CSPA application for adjustment of status

on October 25, 1999.

The DHS appealed the Immigration Judge’s decision. In a decision dated

March 14, 2003, we held that the respondent was ineligible for CSPA

adjustment of status in conjunction with section 245(i) of the Act, because

section 245(i) applies only to applications filed on or after October 1, 1994.

See 8 C.F.R. § 245.10(e) (2003). Because the respondent’s CSPA application

was required to be filed before this date, we sustained the DHS appeal.

The respondent filed a petition for review in the Second Circuit. Pursuant

to a Stipulation and Order of Settlement and Dismissal dated November 5,

2004, the court vacated our decision and remanded the case to us for further

proceedings. The Stipulation and Order directed that we address the

following questions:

1. Whether, under current law, the respondent may use section 245(i) in

conjunction with his application to adjust his status under the CSPA;

2. How the LIFE Act amendments to section 245(i) affect the respondent’s

eligibility for adjustment of status;

3. How 8 C.F.R. § 245.10(a) affects the respondent’s application for

adjustment of status in conjunction with a waiver under section 245(i);

1

On March 1, 2003, the functions of the Immigration and Naturalization Service were

transferred to the Department of Homeland Security pursuant to Title IV of the Homeland

Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2177. See Matter of D-J-,

23 I&N Dec. 572, 573 n.1 (A.G. 2003). To avoid possible confusion, the former INS will

be referred to in this decision as the DHS.

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Interim Decision #3533

4. Whether the November 1997 amendments to section 245(i) vitiate the

regulatory provision that section 245(i) does not apply to an application for

adjustment of status that was filed before October 1, 1994;

5. Whether an application for adjustment of status should be deemed a

continuing application that renders 8 C.F.R. § 245.10(f)(2), which requires

that a new application be filed, inapplicable to this case; and

6. Whether the amendments to section 245(i) apply to this case because an

adjustment of status application is deemed to be a continuing application such

that changes in the law that took effect while the application was pending

apply to the respondent’s case.

II. STATUTORY PROVISIONS

A. Chinese Student Protection Act

The Chinese Student Protection Act allowed certain Chinese nationals to

adjust their status under section 245 of the Act. To be eligible for adjustment

under the CSPA, an alien must (1) be a national of the People’s Republic of

China; (2) have resided continuously in the United States since April 11, 1990

(except for brief, casual, and innocent absences); and (3) not have been

physically present in the PRC for more than 90 days between April 11, 1990,

and October 9, 1992. See CSPA § 2(b), 106 at 1969 (entitled “Aliens

Covered”). According to the implementing regulations, to establish eligibility

an alien must also (1) have been in the United States at some time between

June 5, 1989, and April 11, 1990; (2) be admissible to the United States as an

immigrant, unless the basis of the alien’s inadmissibility has been waived;

(3) establish eligibility for adjustment under all provisions of section 245 of

the Act, unless the basis for ineligibility has been waived; and (4) file an

application for adjustment of status under section 245 of the Act. See

8 C.F.R. § 1245.9(b) (2006).

An alien who met the above requirements was “deemed to have had a

petition approved under section 204(a) of [the Immigration and Nationality]

Act for classification under section 203(b)(3)(A)(i) of such Act.” CSPA

§ 2(a)(1), 106 Stat. at 1969. Additionally, the alien’s adjustment application

was to be considered “without regard to whether an immigrant visa number

[was] immediately available at the time the application [was] filed.” Id.

§ 2(a)(2). Moreover, the provisions of section 245(c) of the Act did not apply

to applicants under the CSPA. Id. § 2(a)(5).

The CSPA provided a 12-month window from July 1, 1993, to

June 30, 1994, during which CSPA adjustment applications would be

accepted. See CSPA § 2(e), 106 Stat. at 1971. The respondent submitted a

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Interim Decision #3533

timely application for CSPA adjustment in July 1993, but it was denied by the

district director because his entry without inspection precluded him from

establishing eligibility “under all provisions of section 245 of the Act.”

8 C.F.R. §1245.9(b)(6).

B. Section 245(i) Adjustment of Status

Eligibility for adjustment of status under section 245(a) of the Act is

generally limited to aliens who have been “inspected and admitted or paroled”

into the United States. However, a few months after the period for filing an

adjustment application under the CSPA expired, Congress amended

section 245 to permit certain aliens who had entered without inspection to

seek adjustment to lawful permanent resident status upon payment of a

surcharge. See section 245(i) of the Act; see also Departments of Commerce,

Justice, and State, the Judiciary, and Related Agencies Appropriations Act,

1995, Pub. L. No. 103-317, § 506(b), 108 Stat. 1724, 1765-66 (enacted

Aug. 26, 1994) (“1995 Appropriations Act”).

Under the initial version of section 245(i), an alien who was eligible to

receive an immediately available immigrant visa, but who would be precluded

from adjustment of status under section 245(a) for having entered without

inspection or for one of the reasons enumerated in section 245(c), was

permitted to adjust status upon payment of a surcharge along with an

application for adjustment under section 245(i). 1995 Appropriations Act

§ 506(b), 108 Stat. at 1766. Under this initial enactment, a section 245(i)

application for adjustment had to be filed between October 1, 1994, and

October 1, 1997. Id. § 506(c). The enacting language provided that “[t]he

provisions of [this] amendment[] to the Immigration and Nationality Act shall

take effect on October 1, 1994 and shall cease to have effect on October 1,

1997.” Id.

Congress has twice extended and amended section 245(i). The first

extension occurred on November 26, 1997, after the initial period for filing

a section 245(i) application had expired. Departments of Commerce, Justice,

and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub.

L. No. 105-119, § 111(b), 111 Stat. 2440, 2458 (enacted Nov. 26, 1997)

(“1998 Appropriations Act”). This amendment repealed the sunset provision

in the initial enactment, replacing the original effective date provision with the

statement that the statute “shall take effect on October 1, 1994.” Id. It also

significantly amended the terms of section 245(i) by shifting the focus of the

filing requirements from the date the application for adjustment of status was

filed to the date on which the underlying visa petition or application for a

labor certification was filed. Id. § 111(a). The new section 245(i) provision

afforded adjustment to applicants on whose behalf a visa petition for

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Interim Decision #3533

classification under section 204 of the Act or an application for a labor

certification under section 212(a)(5)(A) had been filed on or before January

14, 1998. Id.

In 2000, Congress again extended the expiration date for section 245(i)

adjustment applications to April 30, 2001, in the LIFE Act Amendments of

2000, Pub. L. No. 106-554, § 1502(a)(1), 114 Stat. 2763 (enacted Dec. 21,

2000) (“LIFE Act Amendments”). The LIFE Act Amendments, like the 1997

amendments, made the filing date of a visa petition or a labor certification

critical in determining an alien’s eligibility for relief. Thus, the current

version of section 245(i) now specifies that an alien may file an adjustment

application only if he or she is the beneficiary of either (1) a petition for

classification under section 204 of the Act that was filed with the Attorney

General on or before April 30, 2001, or (2) an application for a labor

certification under section 212(a)(5)(A) that was filed by the alien’s employer

pursuant to the regulations of the Secretary of Labor on or before that date.

See section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000). Further, if the visa

petition or labor certification was filed after January 14, 1998, the alien must

have been physically present in the United States on the December 21, 2000,

date of enactment. Id.

III. ANALYSIS

A. Eligibility for Adjustment of Status Under the CSPA of Chinese

Nationals Who Entered Without Inspection

The only point of contention is whether the respondent can establish

“eligibility for adjustment of status under all provisions of section 245 of the

Act,” as required by 8 C.F.R. §1245.9(b)(6). The respondent initially argues

that as a national of China who was otherwise qualified for adjustment of

status under the CSPA, he is included within the group of “Aliens Covered,”

as that term is defined in § 2(b) of the CSPA, and that he is therefore eligible

for adjustment of status under the CSPA despite the fact that he entered the

United States without inspection. In effect, the respondent argues that the

eligibility provisions of section 245(a), which require that the alien be

“inspected and admitted or paroled,” are inapplicable to CSPA applicants.

This issue has been directly addressed and resolved by the regulations

implementing the CSPA. See 8 C.F.R. § 1245.9(b)(6) (requiring eligibility for

adjustment of status under “all provisions of section 245 of the Act”). The

commentary to the interim rule implementing the CSPA provided that

“[p]ersons who entered the United States without inspection are not eligible

for CSPA benefits.” See Adjustment of Status; Certain Nationals of the

People’s Republic of China, 58 Fed. Reg. 35,832, 35,835 (July 1, 1993).

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When the final rule was published in November 1997, the Supplementary

Information further addressed this issue and concluded as follows:

Since the CSPA specifically requires applicants to apply under section 245 of the Act;

expressly waives a portion of the requirements for adjustment under section 245 of the

Act (section 245(c) of the Act); and makes no mention of waiving the other requirements

of section 245, the Service has determined that CSPA applicants must comply with the

requirements of section 245(a) of the Act.

Adjustment of Status; Certain Nationals of the People’s Republic of China,

62 Fed. Reg. 63,249, 63,251 (Nov. 28, 1997).

Court decisions addressing this issue have also found that aliens who

entered without inspection are ineligible for CSPA adjustment. See, e.g.,

Chan v. Reno, 113 F.3d 1068 (9th Cir. 1997); Tang v. Reno, 77 F.3d 1194

(9th Cir. 1996); Qi-Zhuo v. Meissner, 70 F.3d 136 (D.C. Cir. 1995); Chan v.

Reno, 6 F. Supp. 2d 273 (S.D.N.Y. 1998); Chan v. Reno, 991 F. Supp. 266

(S.D.N.Y. 1998). We concur and conclude that because 8 C.F.R.

§ 1245.9(a)(6) requires applicants for adjustment of status under the CSPA to

establish eligibility under “all provisions of section 245 of the Act,” such

applicants must have been inspected and admitted or paroled into the United

States as specified in section 245(a). We now turn to the questions concerning

subsequent changes in the law and section 245(i) that the Second Circuit

requested we address on remand.

B. Effect of Subsequent Developments on Adjustment of Status by CSPA

Applicants Who Entered Without Inspection

1. Section 245(i) of the Act

As we previously noted, section 245(i) of the Act, which was enacted after

the filing period for CSPA applications expired, permits an alien who entered

without inspection to apply for adjustment of status. We must therefore

determine whether a CSPA application can be amended or renewed so that an

applicant who entered without inspection can seek adjustment under the

provisions of section 245(i).

We begin by addressing a preliminary procedural issue presented by this

case, i.e., whether an Immigration Judge may review the initial application for

CSPA adjustment in immigration proceedings or whether the respondent must

file a new application. Ordinarily, when the DHS denies an application for

adjustment of status, there is no direct appeal from such a denial, but the

applicant “retains the right to renew his or her application” in deportation or

removal proceedings. 8 C.F.R. § 1245.2(a)(5)(ii) (2006) (emphasis added).

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The background information on the final CSPA regulations indicates that

a CSPA applicant whose adjustment application is denied by the district

director may renew the application in immigration proceedings. See 62 Fed.

Reg. at 63,249 (Supplementary Information). The question is whether such

a “renewed” CSPA application may benefit from the provisions of section

245(i).

The regulations implementing section 245(i) contain a number of

provisions relevant to this issue. For applicants in deportation or removal

proceedings, the regulations provide the following rule:

Pending adjustment application with the Service or Executive Office for Immigration

Review filed without Supplement A to Form I–485 and additional sum. . . . If the

application for adjustment of status is pending before the Executive Office for

Immigration Review (EOIR), EOIR will allow the respondent an opportunity to

amend an adjustment of status application filed in accordance with § 103.2 of

8 C.F.R. chapter I (to include Supplement A to Form I–485 and proof of remittance

to the INS of the required additional sum) in order to request consideration under the

provisions of section 245(i) of the Act.

8 C.F.R. §1245.10(d) (2006) (second emphasis added).

Read in isolation, this regulation would seem to permit an applicant in

immigration proceedings to amend a timely filed CSPA application rather than

“refile” the application to meet section 245(i) requirements. The next

paragraph, however, specifically addresses applications filed before October

1, 1994:

Applications for Adjustment of Status filed before October 1, 1994. The provisions

of section 245(i) of the Act shall not apply to an application for adjustment of status

that was filed before October 1, 1994 . . . [or] to a motion to reopen or reconsider

[such] an application . . . . An applicant whose pre-October 1, 1994, application for

adjustment of status has been denied may file a new application for adjustment of

status pursuant to section 245(i) of the Act on or after October 1, 1994, provided that

such new application is accompanied by: the required fee; Supplement A to Form

I–485; the additional sum required by section 245(i) of the Act; and all other required

initial and additional evidence.

8 C.F.R. § 1245.10(e) (second emphasis added). When we consider these two

provisions together, therefore, we find that the date restriction in 8 C.F.R.

§ 1245.10(e) limits the adjustment applications that may be amended during

the course of immigration proceedings pursuant to 8 C.F.R. § 1245.10(d) to

those that were filed after October 1, 1994. Under the terms of the CSPA,

however, the deadline for filing an adjustment application was June 30, 1994.

Therefore, CSPA applications, which were necessarily filed prior to June 30,

1994, and, consequently, before October 1, 1994, may not be amended in

proceedings for consideration under section 245(i). Furthermore, the June 30,

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1994, deadline for CSPA applications clearly precludes the filing of a new

application pursuant to section 245(i).

The respondent relies on the reference in 8 C.F.R. § 1245.10(e) to the filing

of a new application with the surcharge and Supplement A to Form I–485 as

the mechanism by which he may qualify for adjustment of status under section

245(i). However, this reading of the regulations has been repeatedly

considered and rejected. The second interim rule for section 245(i) directly

addressed this issue and concluded as follows:

A number of [the] commenters argued that, although applicants who entered without

inspection were ineligible for adjustment of status under the CSPA, the provisions of

section 245(i) should apply retroactively to any CSPA application pending as of

October 1, 1994. One commenter noted that, [while] most aliens with pending

adjustment of status applications could simply file a new application under section

245(i), CSPA applicants cannot file a new application because of the CSPA’s

statutory filing deadline of June 30, 1994. . . . As stated previously, the provisions of

section 245(i) apply only to applications filed on or after October 1, 1994. Further,

had Congress intended any special consideration for CSPA applications, such

provisions would have been incorporated into the statute. Accordingly, the provisions

of the rule have not been changed in response to these comments.

Adjustment of Status to That of Person Admitted for Permanent Residence;

Temporary Removal of Certain Restrictions of Eligibility, 62 Fed. Reg.

39,417, 39,420 (July 23, 1997) (Supplementary Information).

Commentary accompanying the CSPA final rule also directly addressed the

use of section 245(i) in conjunction with CSPA adjustment and concluded the

following:

[Section 245(i)] became effective on October 1, 1994, 3 months after the close of the

CSPA application period. It is due to sunset on October 23, 1997. Since the new law

applies only to applications filed after October 1, 1994, (see 8 C.F.R. 245.10(e)) it has

no effect on CSPA adjustment-of-status applications. Accordingly, the interim rule’s

requirement that an eligible CSPA applicant show that he or she entered the United

States following an inspection and admission or parole has not been changed.

62 Fed. Reg. at 63,252 (Nov. 28, 1997) (Supplementary Information).

The respondent has not presented convincing arguments that CSPA

applicants may invoke section 245(i). Consequently, we conclude that an

alien, such as the respondent, may not rely on section 245(i) to cure his

ineligibility for adjustment of status under the CSPA resulting from his entry

without inspection. Accord Chan v. Reno, supra, at 1072 (stating that

“[b]ecause the eligibility and effective dates are clear, we conclude that aliens

who applied for adjustment under the CSPA are not eligible for treatment

under § 245(i)”).

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2. LIFE Act Amendments

As discussed above, the 2000 LIFE Act Amendments to section 245(i)

provided that an otherwise eligible alien could file an application for

adjustment of status under section 245(i) of the Act if he or she was the

beneficiary of either (1) a petition for classification under section 204 of the

Act that was filed with the Attorney General on or before April 30, 2001; or

(2) an application for a labor certification that was filed by the alien’s

employer pursuant to the regulations of the Secretary of Labor on or before

that date. Thus, under the current version of section 245(i), such a visa

petition or application for a labor certification could preserve the alien

beneficiary’s ability to subsequently file an application for adjustment of

status under section 245(i).

Under section 2(a)(1) of the CSPA, an alien who qualified for CSPA

adjustment was “deemed to have had a petition approved under section 204(a)

of [the Act] for classification under section 203(b)(3)(A)(i) of such Act.” The

respondent asserts that his filing of a CSPA adjustment application should

therefore be considered the equivalent of the filing of a visa petition on his

behalf under section 204(a) of the Act. Consequently, he contends that he

qualifies as the beneficiary of an immigrant visa petition filed with the

Attorney General before April 30, 2001.

We reject this argument. The language chosen by Congress in the current

version of section 245(i) clearly refers to the act of filing an immigrant visa

petition. The filing of an immigrant visa petition is an act preliminary to, and

is distinctly different from, the filing of an application for adjustment of

status. The respondent is not the beneficiary of a visa petition or an

application for a labor certification. Rather he is the beneficiary of a limited

opportunity to adjust status afforded by Congress under the CSPA. The

background information for the regulations implementing section 245(i)

emphasizes this point, stating that

[o]ther types of applications or petitions for immigration benefits—including but not

limited to asylum applications, diversity visa applications, and diversity visa

lottery-winning letters—do not serve to grandfather an alien for purposes of Section

245(i), because they do not satisfy the statutory requirement that the alien must be the

beneficiary of a qualifying immigrant visa petition for classification under Section

204 of the Act filed with the Attorney General or a qualifying labor certification

application filed with the Secretary of Labor.

Adjustment of Status to That of Person Admitted for Permanent Residence;

Temporary Removal of Certain Restrictions of Eligibility, 66 Fed. Reg.

16,383, 16,384 (Mar. 26, 2001) (Supplementary Information).

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Assuming, for the sake of argument, that the respondent’s situation could

be equated to that of an alien who was the beneficiary of an immigrant visa

petition or an application for a labor certification, he is still unable to adjust

his status under section 245(i). Under 8 C.F.R. § 1245.10(a)(1)(i), the

relevant visa petition application must have been “approvable when filed” in

order be considered under section 245(i). See also 8 C.F.R. § 1245.10(a)(3).

As a result of the respondent’s entry without inspection, his CSPA adjustment

application was not approvable at the time of filing. To overlook this

requirement would lead to the anomalous result that a CSPA adjustment

application that was not approvable at the time of filing would be considered

an approved visa petition for section 245(i) eligibility, while an immigrant

visa petition or application for a labor certification that was not approvable at

the time of filing would be rejected. We therefore find no support for the

view that the LIFE Act Amendments allow the respondent to adjust his status

under the CSPA in combination with the current version of section 245(i).

3. 8 C.F.R. § 1245.10(a)

The regulations at 8 C.F.R. § 1245.10(a) implement the provisions of the

LIFE Act Amendments. They mirror the statutory requirements, stating that

section 245(i) eligibility is limited to an alien who is the beneficiary of a

“petition for classification under section 204 of the Act which was properly

filed with the Attorney General on or before April 30, 2001, and which was

approvable when filed” or an application for labor certification that was

approvable when properly filed. 8 C.F.R. § 1245.10(a)(1)(i). The rule further

specifies that the question whether an application was “approvable when

filed” will be determined “based on the circumstances that existed at the time

the qualifying petition or application was filed.” 8 C.F.R. §1245.10(a)(3). As

stated in the previous section, the respondent’s CSPA application was not

approvable at the time it was filed because of his entry without inspection.

Therefore, these regulatory provisions clearly preclude his eligibility for

adjustment under section 245(i).

4. 1997 Amendments to Section 245(i)

As discussed above, Congress initially amended section 245(i) of the Act

on November 26, 1997, to extend the original October 1, 1997, sunset date to

January 14, 1998. See 1998 Appropriations Act § 111(b), 111 Stat. at 2458.

In so doing, it amended section 245(i) to provide that the relevant visa petition

or application for labor certification on which the adjustment of status

application was based had to be filed “on or before January 14, 1998.” Id.

§ 111(a). However, Congress explicitly maintained the October 1, 1994,

effective date of section 245(i) as the date upon or after which an application

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for adjustment of status under section 245(i) had to be filed.2 Therefore, the

1997 amendments provide no basis to vitiate the regulatory provision that

section 245(i) does not apply to an application for adjustment of status that

was filed before October 1, 1994. See 8 C.F.R. § 1245.10(e). Moreover,

8 C.F.R. § 245.10(e), the current version of which is at 8 C.F.R. § 1245.10(e),

was promulgated on March 26, 2001, after enactment of the 1997

amendments and the 2000 LIFE Act Amendments to section 245(i). See 66

Fed. Reg. at 16,389 (addressing applications for adjustment of status filed

before October 1, 1994). As the current version of this rule was promulgated

after passage of the 1997 and 2000 amendments to section 245(i), it has

obviously not been superseded by subsequent legislation.

5. 8 C.F.R 1245.10(f)(2)

The regulation at 8 C.F.R. § 1245.10(f)(2) requires that an alien whose

application was adjudicated and denied by the DHS because of ineligibility

under sections 245(a) or (c) of the Act must file a new application for

adjustment of status under section 245(i). As discussed above in response to

the first question, the requirement of the filing of a new application presents

eligibility problems for CSPA applicants, whose window of opportunity for

filing closed on June 30, 1994.

Applications for adjustment of status are continuing applications so that

relevant changes in law that occur while an application is under review in

immigration proceedings apply to pending applications. See generally Matter

of Alarcon, 20 I&N Dec. 557 (BIA 1992). Even if a refiled CSPA application

were to be considered a continuing or renewed application, however, we are

bound by the current regulations, which state that “[t]he provisions of section

245(i) of the Act shall not apply to an application for adjustment that was filed

before October 1, 1994.” 8 C.F.R. § 1245.10(e). Therefore, even if the

respondent’s application is considered a “continuing” application in order to

meet the filing window for CSPA, it nevertheless fails to meet the

section 245(i) requirement that the application must have been filed after

October 1, 1994.

2

Section 506(c) of the 1994 legislation enacting section 245(i) provided that “[t]he

provisions of these amendments to the Immigration and Nationality Act shall take effect on

October 1, 1994 and shall cease to have effect on October 1, 1997.” See 1995

Appropriations Act § 506(c), 108 Stat. at 1766. The November 1997 amendment, in

eliminating the original sunset date, amended section 506(c) to specify that “[t]he

amendment made by [section 506(b), i.e., the original section 245(i) provisions] shall take

effect on October 1, 1994.” 1998 Appropriations Act § 111(b), 111 Stat. at 2458.

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6. Continuing Application Under Current Law

As indicated above, neither the current version of section 245(i) under the

LIFE Act Amendments nor the prior versions of the statute apply to the

respondent’s situation so as to allow him to adjust his status, even if his CSPA

adjustment application is considered to be a “continuing” application.

IV. CONCLUSION

For the reasons indicated above, we conclude that the respondent is not

eligible for adjustment of status under the CSPA in conjunction with section

245(i) of the Act. Accordingly, the DHS’s appeal will again be sustained, and

the Immigration Judge’s grant of adjustment of status will be vacated. The

record will be remanded to give the respondent an opportunity to apply for

any other relief for which he may be eligible, including voluntary departure.

ORDER: The appeal of the Department of Homeland Security is

sustained, and the Immigration Judge’s grant of the adjustment of status under

the CSPA and section 245(i) of the Act is vacated.

FURTHER ORDER: The record is remanded for further proceedings

consistent with this decision.

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