* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 25, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

 

No. 03-60383

Summary Calendar

 

HADJI BULOSAN DORIA,

 

Petitioner,

versus

JOHN ASHCROFT, U. S. ATTORNEY GENERAL,

 

Respondent.

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Petitioner for Review of a Decision of the

Board of Immigration Appeals

BIA No. A74 704 768

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Before SMITH, DeMOSS AND STEWART, Circuit Judges.

PER CURIAM:*

Hadji Bulosan Doria, a native and citizen of the Philippines, petitions for review of the

decision of the Board of Immigration Appeals (BIA) summarily affirming the removal order of the

Immigration Judge (IJ). Because the BIA summarily affirmed pursuant to 8 C.F.R. §
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1003.1(e)(5)(2003), the IJ’s decision is the final agency determination for our review. See Moin v.

Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).

Doria contendsthat the IJ erred in finding that the immigration court lacked jurisdiction over

his adjustment application. Doria asserts that the IJ should not have denied his application but should

have allowed himto substitute hissecond employer as a new I-140 visa petitioner in conjunction with

his original adjustment application. Doria argues that he sat isfied the requirements of 8 C.F.R. §

245.2(a)(1) for renewing his application in removal proceedings.

An alien paroled into the United States may renew an application for adjustment ofstatus in

removal proceedings only if the adjustment application had been previously filed. 

8 C.F.R. § 245.2(a)(1)(ii). Because Doria’s second adjustment application was not filed until after

he had been paroled into the United States and removal proceedings had been instituted, the IJ was

correct in concluding that he was not permitted to renew his adjustment application in the removal

proceedings. See 8 C.F.R. § 245.1(c)(8); Pei-Chi Tien v. I.N.S., 638 F.2d 1324, 1328 (5th Cir.

1981).

While Doria’s appeal was pending before the BIA, Congress passed the American

Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. No. 106-313, 114 Stat.

1251 (Oct. 17, 2000). Section 106(c) of AC21 amended § 204 of the Immigration and Naturalization

Act by adding the following provision, codified as 8 U.S.C. § 1154(j):

Job flexibility for long delayed applicants for adjustment of status to

permanent residence. A petition under subsection (a)(1)(D) for an

individual whose application for adjustment of status pursuant to

section 1255 ofthistitle has been filed and remained unadjudicated for

180 days or more shall remain valid with respect to a new job if the

individual changes jobs or employers if the new job is the same or a
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similar occupational classification asthe job for which the petitionwas

filed.

Doria contends that the regulatory bar to adjustment as a result of his status as an arriving

alien in removal proceedings is inapplicable because § 106(c) applies to his case. He argues that his

original adjustment application was a “continuing application” that should have been determined on

the basis of the fact and law at the time the application was finally considered. 

This lacks merit, first, because there is no evidence of congressional intent for § 106(c) to

apply to adjustment applicationsthat had been fully adjudicated by the INS prior to AC21's effective

date. Second, by its express terms, section 106(c) applies only to aliens whose adjustment

applications have remained unadjudicated for 180 days or more. 8 U.S.C. § 1154(j). Doria’s

adjustment application was adjudicated bythe INS in June 1999, more than 16 months before AC21's

effective date, so he is not entitled to relief on authority of § 106(c).

Finally, ifit is assumed that § 106(c) isretroactive and appliesto adjustment applicationsthat

are renewed in removal proceedings(as opposed to applying only to adjustment applicationsthat are

awaiting adjudication), § 106(c) would not benefit Doria, because he is ineligible for adjustment of

status as a result of his status as an arriving alien in removal proceedings. 8 C.F.R. § 245.1(c)(8).

When Doria was placed into removal proceedings on July 26, 1999, at which time he had no

adjustment applications pending with the INS, he became ineligible to apply for adjustment because

he was, by his own admission, an arriving alien. 

PETITION DENIED.
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