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Matter of Jose S. MARTINEZ-MONTALVO, Respondent

File A097 309 445 - Miami, Florida

Decided April 20, 2009

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

 Under 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1)(ii) (2008), Immigration Judges have no

jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of

status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732,

80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in

removal proceedings after returning to the United States pursuant to a grant of advance

parole to pursue a previously filed application. Matter of Artigas, 23 I&N Dec. 99 (BIA

2001), superseded.

FOR RESPONDENT: Tal Winer, Esquire, Miami, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY: Adam Weisholtz, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU, PAULEY, and HESS, Board Members.

PAULEY, Board Member:

In a decision dated May 14, 2007, an Immigration Judge found the

respondent removable and granted his application for adjustment of status

under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No.

89-732, 80 Stat. 1161 (“Cuban Adjustment Act”). The Department of

Homeland Security (“DHS”) has appealed from that decision. The appeal will

be sustained, the decision of the Immigration Judge will be vacated, and the

record will be remanded for further proceedings. 

The respondent, who is a native and citizen of Cuba, is an arriving alien. In

removal proceedings before the Immigration Judge, he applied for adjustment

of status, which the Immigration Judge granted, noting his jurisdiction to

adjudicate the application and citing our decision in Matter of Artigas,

23 I&N Dec. 99 (BIA 2001). On appeal, the DHS argues that Immigration

Judges do not have such jurisdiction after the publication of an interim rule in
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1 These regulations were identical and provided that “[a]ny arriving alien who is in removal

proceedings” is included within the category of aliens who are ineligible to apply for

adjustment of status.

2 The current regulation at 8 C.F.R. § 245.2(a)(1) provides as follows:

 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 C.F.R. § 1245.2(a)(1).

(Emphasis added.) The regulations at 8 C.F.R. §§ 1245.2(a)(1) provide, in pertinent part,

as follows:

 (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 . . . .”). 

(Emphasis added.) 

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2006 that repealed 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) (2006)1 and

amended 8 C.F.R. §§ 245.2 and 1245.2 (2006), which set forth the rules

regarding jurisdiction over adjustment applications. See 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 (May 12, 2006); see also 8 C.F.R. §§ 245.2 and 1245.2 (2008).2

 We

agree with the DHS, because the rationale underlying our decision in Matter

of Artigas is no longer viable in light of the amendments to the governing

regulations.

We find it helpful to set forth the history underlying the question

presented in this case, as explained in the Supplementary Information to the

May 12, 2006, interim rule. 71 Fed. Reg. at 27,586-88; see also Matter of

Artigas, supra, at 101-04. Before the enactment of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

104-208, 110 Stat. 3009-546 (“IIRIRA”), aliens who had entered the United

States and were subject to deportation proceedings could file an application for

adjustment of status with an Immigration Judge. See 71 Fed. Reg. at 27,586.

However, this form of relief was generally unavailable to aliens seeking to

enter the United States who were placed in exclusion proceedings as
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3 The functions of the Immigration and Naturalization Service were transferred to

the Department of Homeland Security pursuant to the Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135. The transfer occurred on March 1, 2003. See Matter

of D-J-, 23 I&N Dec. 572, 573 n.1 (A.G. 2003).

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inadmissible aliens. Id. The former Immigration and Naturalization Service3

generally had exclusive jurisdiction over an adjustment of status application

filed by a paroled alien in exclusion proceedings, and the alien was unable to

file or renew the application before an Immigration Judge. Id. 

When the IIRIRA was enacted in 1996, deportation and exclusion

proceedings were replaced by a single “removal” proceeding, but the

distinction remained between aliens who have been admitted and those seeking

admission, i.e., arriving aliens. Id. Implementing the 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. Id. at

27,587. Therefore, in 1997 the Attorney General established a rule, which was

then codified at 8 C.F.R. § 245.1(c)(8)—and was subsequently included in the

regulations at 8 C.F.R. § 1245.1(c)(8) in 2003—providing that an arriving

alien placed in removal proceedings was ineligible for adjustment of status.

Id. (citing Inspection and Expedited Removal of Aliens; Detention and

Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures,

62 Fed. Reg. 10,312, 10,326-27 (Mar. 6, 1997)); see also supra note 1.

At the same time, a regulation regarding jurisdiction over adjustment of

status applications was promulgated. See 62 Fed. Reg. at 10,383. That

regulation was codified at 8 C.F.R. § 245.2(a)(1) (1998) and provided in

pertinent part as follows:

Jurisdiction. An alien who believes he or she meets the eligibility requirements

of section 245 of the Act or section 1 of the [Cuban Adjustment Act] and § 245.1 shall

apply to the director having jurisdiction over his or her place of residence unless

otherwise instructed in 8 C.F.R. part 245, or by the instruction on the application

form. After an alien, other than an arriving alien, is in deportation or removal

proceedings, his or her application for adjustment of status under section 245 of the

Act or section 1 of the [Cuban Adjustment Act] shall be made and considered only in

those proceedings. An arriving alien, other than an alien in removal proceedings,

who believes he or she meets the eligibility requirements of section 245 of the Act or

section 1 of the [Cuban Adjustment Act] and § 245.1 shall apply to the director having

jurisdiction over his or her place of arrival.

(Emphasis added.) The regulation also created one exception to this

jurisdictional rule for certain 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 whose adjustment application had subsequently been
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4 At that time, 8 C.F.R. § 240.11(a)(1) provided in pertinent part as follows:

 In a removal proceeding, an alien may apply to the immigration judge for . . .

adjustment of status under section 1 of the Act of November 2, 1966 (as modified by

section 606 of Pub. L. No. 104-208) . . . . The application shall be subject to the

requirements of § 240.20, and 8 C.F.R. parts 245 and 249.

This regulation was subsequently amended and redesignated as 8 C.F.R. § 1240.11(a)(1) in

2003. 

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denied by the district director. 8 C.F.R. § 245.2(a)(1)(i)-(ii). Only aliens

applying for adjustment in these limited circumstances could renew an

application in removal proceedings.

In Matter of Artigas, supra, the Government argued that the jurisdictional

regulation at 8 C.F.R. § 245.2(a)(1), in conjunction with the ineligibility

provision in 8 C.F.R. § 245.1(c)(8), precluded arriving aliens placed in

removal proceedings from pursuing adjustment of status under the Cuban

Adjustment Act. We rejected this position, holding that an Immigration Judge

has jurisdiction to adjudicate an application for adjustment of status under the

Cuban Adjustment Act in removal proceedings when a Cuban alien has been

charged as an arriving alien without a valid visa or entry document. In

reaching this conclusion, we noted that once removal proceedings were

commenced, an arriving alien was effectively precluded from submitting an

application for relief under the Cuban Adjustment Act to the district director,

because at that time the regulations specifically provided that “‘[a]n arriving

alien, other than an alien in removal proceedings, who believes he or she

meets the eligibility requirements of section 245 of the Act or section 1 of the

Act of November 2, 1966, and § 245.1 shall apply to the [district] director

having jurisdiction over his or her place of arrival.’” Id. at 105 (quoting

8 C.F.R. § 245.2(a)(1)). Thus, we held that if the regulations were found to

implicitly deprive an Immigration Judge of jurisdiction to consider

applications for adjustment of status under the Cuban Adjustment Act by

arriving aliens, that statutory form of relief would have effectively become

meaningless. Id. 

To avoid this result, we concluded that Immigration Judges were granted

jurisdiction, because the regulations specifically provided authority for

arriving aliens to file an application for relief pursuant to the Cuban

Adjustment Act. Id. at 103 (citing 8 C.F.R. §§ 240.11(a)(1)4

 and 245.2(a)(1)

(2001)). We found no evidence that the Attorney General intended the

post-IIRIRA amendments to the adjustment of status regulations to withdraw

by implication the Immigration Judges’ jurisdiction to adjudicate such

applications for relief, over which they previously had exclusive jurisdiction.

Id. at 103-04. Furthermore, because the Cuban Adjustment Act is a specific
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grant of authority to adjust the status of Cubans who could not fulfill the

requirements of section 245 of the Act, 8 U.S.C. § 1255 (1994 & Supp. V

1999), we determined that it must be considered separate and apart from

adjustment of status under section 245. Id. at 106. Accordingly, we held that

arriving aliens placed in removal proceedings could seek adjustment of status

under the Cuban Adjustment Act before an Immigration Judge.

After the issuance of Matter of Artigas, supra, and prior to the 2006

regulatory amendments relied on by the DHS in support of this appeal, some

courts of appeals held that 8 C.F.R. §§ 245.1(c)(8) and 1245.1(c)(8) were

ultra vires under section 245(a) of the Act, which permits an application for

discretionary adjustment of status by any alien who was “inspected and

admitted or paroled.” Scheerer v. U.S. Att’y Gen., 445 F.3d 1311 (11th Cir.

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).

However, other courts held that the regulations constituted a valid exercise

of the respective discretionary authority of the Attorney General and the

Secretary of the DHS to grant or deny adjustment of status, even as applied to

arriving aliens seeking adjustment of status in removal proceedings who were

paroled into the United States. Momin v. Gonzales, 447 F.3d 447, reh’g

granted and opinion vacated, 462 F.3d 497 (5th Cir. 2006); Mouelle

v. Gonzales, 416 F.3d 923 (8th Cir. 2005), cert. granted and judgment vacated,

548 U.S. 901 (2006). 

In light of this split of authority, the Attorney General and the Secretary of

the DHS amended the regulations in 2006 to eliminate 8 C.F.R. §§ 245.1(c)(8)

and 1245.1(c)(8) to avoid inconsistent application of the adjustment of status

laws. See 71 Fed. Reg. at 27,587 (Supplementary Information). The

regulations at 8 C.F.R. §§ 245.2(a)(1) and 1245.2(a)(1) were also amended to

clarify which Departmental component has jurisdiction to adjudicate

adjustment applications for arriving aliens who have been paroled into the

United States and placed in removal proceedings. Id. The new regulations at

8 C.F.R. § 245.2(a)(1) thus provide that the United States Citizenship and

Immigration Services (“USCIS”) generally has exclusive jurisdiction to

adjudicate adjustment applications of arriving aliens. The only exception to

this rule arises when an alien who leaves the United States while an

adjustment application is pending with the USCIS returns pursuant to a

grant of advance parole and is placed in removal proceedings. 8 C.F.R.

§§ 1245.2(a)(1)(ii)(A)-(D). In such circumstances, an Immigration Judge

would have jurisdiction to adjudicate the alien’s renewed adjustment

application in removal proceedings if the application has been denied by the

USCIS. Id.; see also 71 Fed. Reg. at 27,587-88 (Supplementary Information).

As a result of these amendments, the DHS contends that Immigration Judges

no longer have jurisdiction in removal proceedings to consider adjustment of
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status applications filed by arriving aliens who are seeking benefits under the

Cuban Adjustment Act. The DHS argues that our concern in Matter of

Artigas, supra, with preserving such relief in removal proceedings for arriving

Cuban aliens has now been resolved with the 2006 amendments to 8 C.F.R.

§§ 245.2(a)(1) and 1245.2(a)(1). In the DHS’s view, the regulations have

effectively superseded Matter of Artigas by conferring on the USCIS

jurisdiction over an application for adjustment of status filed by “any” alien,

and by eliminating the jurisdiction of Immigration Judges over “any”

adjustment application filed by an arriving alien, with the above-noted limited

exception.

We agree with the DHS’s argument. The language of the new regulatory

scheme is clearer than that of the former regulations, which made only an

oblique reference to an Immigration Judge’s jurisdiction over arriving aliens

seeking adjustment under the Cuban Adjustment Act. Furthermore, if the

Attorney General had intended to exempt Cuban Adjustment Act cases from

the new regulatory scheme, it would have been a simple matter to include such

an exception in the regulations. Now that the amended regulations assure that

arriving aliens who are eligible for relief under the Cuban Adjustment Act can

file an adjustment application with the USCIS, we see no reason not to afford

the term “any” its full and natural meaning. See Ali v. Federal Bureau of

Prisons, 128 S. Ct. 831, 835-36 (2008) (broadly construing the term “any”).

See generally K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92 (1988);

Matter of N-B-, 22 I&N Dec. 590, 592 (BIA 1999) (regarding the rules of

statutory and regulatory construction). In other words, there is no longer a

need to ascribe a different meaning to the regulatory language to avoid

depriving all arriving aliens seeking relief under the Cuban Adjustment Act in

removal proceedings of a statutory avenue to adjust their immigration status.

Although adjustment under that statute is considered “separate and apart from

adjustment of status under section 245 of the Act,” Matter of Artigas, supra,

at 106, the intent of Congress in enacting the Cuban Adjustment Act is still

honored, because arriving aliens may now seek this form of relief before the

USCIS, whether or not they are in removal proceedings, and whether or not

they are under an order of removal. 

Accordingly, we will sustain the DHS’s appeal and vacate the Immigration

Judge’s decision granting the respondent’s application for adjustment of status

under the Cuban Adjustment Act for lack of jurisdiction. The respondent may

now elect to file an application with the USCIS. The record will be remanded

to the Immigration Judge to give the respondent an opportunity to pursue any

other relief from removal for which he may be eligible. 

ORDER: The appeal of the Department of Homeland Security is sustained,

and the decision of the Immigration Judge is vacated.
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FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.