Interim Decision #2755 

MATTER OF REYES 

In Deportation Proceedings 

A-19007515 

Decided by Board January 16, 1980 

(1) It is improper for an immigration judge to enter a conditional grant of adjustment of 

status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255 as it 

undermines the security that ought to attend permanent resident status. Fulgencio v. 

INS, 573 F.2d 596 (9 Cir. 1978). 

(2) If, after adjustment of status is granted under the provisions of section 215 of the 

Immigration and Nationality Act, 8 U.S.C. 1268, it appears that the alien was ineligible for adjustment of status, the Service may institute rescission proceedings following the provisions of section 246 of the Act, 8 U.S.C. 1256, and may not move to reopen 

the deportation proceedings to attack the grant of adjustment. 

(3) it was improper for the Immigration judge to enter a conditional grant of adjustment of status, and it was also improper to accept a Service motion to reopen the 

proceedings 2 years later so th at it could oppose the application for adjustment; and so 

much of the immigration judge's decision that imposed conditions on the granting of 

the adjustment of status was vacated. 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)]—Nonimmigrant visitor—

failed to comply with conditions of nonimmigrant status 

ON BEHALF OP RESPONDENT: ON BEHALF OF SERVICE: 

Michael R. Pickett, Esquire Kendall B. Warren 

P.O. Box 986 Trial Attorney 

Richland, Washington 99352 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

The respondent appeals from the immigration judge's grant of a 

Service motion to reopen the deportation proceedings. We will certify 

this case to ourselves pursuant to 8 C.F.R. 3.1(c). The decision of the 

immigration judge will be reversed and the proceedings terminated. 

On May 25, 1977, the immigration judge entered a conditional grant 

of adjustment of status, dependent on the results of a medical examination and a Service investigation. As he stated in his decision: 

Adjustment of status is an application which is discretionary with the immigration 

judge. The Service did not raise any objection during the course of this hearing in 

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opposition to the granting of the application. The necessary checks have not been 

completed so, if I grant the application, it will be conditional upon completion of 

checks and that they be negative. Under the circumstances, because the respondent is 

the spouse of a citizen of the United States and is no doubt desirous of remaining in the 

United States with her, I am going to grant his application conditionally. When the 

conditions are met, the proceedings will be terminated. 

The immigration judge then entered the-following order: 

It is ordered that respondent's application for adjustment of status pursuant to 

section 245 of the Immigration and Nationality Act be and the same is hereby granted, 

conditioned upon (1) a clear medical certification and (2) the appropriate checks being 

made and they being negative. (Emphasis added.) 

The investigation that followed apparently resulted in the Service 

conclusion that the marriage on which the adjustment of status application was based was fraudulent and the respondent was then tried 

and convicted in a United States District Court for having violated 18 

U.S.C. 1001. On May 3, 1979, the Service moved to reopen the proceedings based on these facts, so that it could oppose the application for 

adjustment of status. 

In a case involving similar facto, the Ninth Circuit noted that 

rescission proceedings are governed by a 5 year statute of limitations, 

but that 

when the adjustment is conditional, the alien is in continual jeopardy because 

deportation proceedings may be reopened at any time. 8 C.F.R. 242.22. This undermines the security which ought to attend permanent resident status. 

Furthermore, when the INS seeks to rescind a grant of permanent resident status, it 

has the burden of proof and must establish its ground for rescission by clear, unequivocal, and convincing evidence. Woodby v. INS, 385, 503 (6 Cir. 1970). (Other 

citations omitted.) When a conditional grant is followed by a motion to reopen the 

deportation proceedings, the burden remains on the alien to prove that he should not 

be deported even though it is the government which seeks to alter his stains_ 

If the immigration judge felt that the record was inadequate in this case, he could 

have adjourned the proceedings. 8 O.F.R. 242.13. By granting adjustment on condition 

that nothing "derogatory" appear in appellant's records, he improperly retained 

jurisdiction over the substantive merits of appellant's application for an open -ended 

period of time. 

The court consequently held that the conditional grant was improper. 

Fuloencio v. INS. 573 F.2d 596, 598, 599 (9 Cir. 1978). 

The same result holds true in this case. Quite clearly, the basic 

problem of unfairness that the court saw in Fulgencio is abundantly 

evident here where the proceedings were reopened almost 2 years after 

the conditional grant was entered by the immigration judge. This 

grant by the immigration judge can only therefore be characterized as j 

an unqualified grant of adjustment of status under section 245 of the 

Immigration and Nationality Act, 8 U.S.C. 1255. Section 246 of the Act, 

8 U.S.C. 1256, states in part that following the grant of adjustment of 

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status: 

.. If, at any time within 5 years after the status of a person has been otherwise 

adjusted under the provisions of section 245 or 249 of this Act or any other provision of 

law to that of an alien lawfully admitted for permanent residence, it shall appear to 

the satisfaction of the Attorney General that the person was not in fact eligible for 

such adjustment of status, the Attorney General shall rescind the action taken 

granting an adjustment of status to such person and cancelling deportation in the case 

of such person if that occurred and the person shall thereupon be subject to all 

provisions of this Act to the same extent as if the adjustment of statue had not been 

made. 

It is clear from this case that the immigration judge did not retain 

the jurisdiction to reopen the proceedings, because he was in reality 

being requested to rescind the adjustment of status by means of a 

motion to reopen the deportation proceedings. This cannot be done. 

The only procedure for the Service to now attack the grant of adjustment of status is through the rescission proceedings set forth in 

section 246 of the Act. The decision of the immigration judge is 

accordingly reversed. 

ORDER: The Service motion to reopen the deportation proceedings is denied. 

FURTHER ORDER: The decision of the immigration judge dated 

June 7, 1979, is reversed. 

FURTHER ORDER: So much of the immigration judge's order 

dated May 25, 1977, as imposes conditions on the granting of adjustment of status is vacated. 

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