FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IBRAHIM FARHAB BARE,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 17-73269

Agency No.

A073-436-746

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 7, 2019

San Francisco, California

Filed September 16, 2020

Before: Diarmuid F. O’Scannlain, Eugene E. Siler,* and 

Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Siler

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 BARE V. BARR

SUMMARY**

Immigration

Denying Ibrahim Bare’s petition for review of a decision 

of the Board of Immigration Appeals, the panel held that: 

1) the BIA did not err in concluding that Bare’s conviction 

for being a felon in possession of a firearm or ammunition, 

in violation of 18 U.S.C. §§ 922(g)(1) and 924(A)(2), 

constitutes a particularly serious crime barring withholding 

of removal; and 2) the IJ lacked jurisdiction to consider 

Bare’s request for adjustment of status in “asylum-only” 

proceedings. 

Bare, a native and citizen of Somalia, came to the United 

States as a stowaway, was placed in “asylum-only” 

proceedings for stowaways, and was granted asylum in 

1997. Asylum-only proceedings are limited to determining 

eligibility for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). An IJ later 

granted the government’s motion to reopen in order to 

terminate Bare’s asylum grant based on his conviction. The 

IJ determined that he lacked jurisdiction to consider Bare’s 

request for an adjustment of status, and denied withholding 

of removal and CAT relief. The BIA affirmed.

As a preliminary matter, the panel concluded that Bare 

exhausted his challenges related to the first factor of the test 

for whether a crime is particularly serious. The panel next 

concluded that the BIA did not abuse its discretion in 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BARE V. BARR 3

concluding that Bare’s conviction for being a felon in 

possession of a firearm was a particularly serious crime 

barring withholding of removal. First, the panel rejected 

Bare’s contention that the agency erred by not explicitly 

considering the elements of the offense, concluding that the 

agency’s analysis was sufficient under the circumstances. 

Second, the panel rejected Bare’s contention that the crime 

is a “status offense” and is, therefore, categorically excluded 

from being particularly serious. The panel noted that it 

would be anomalous if a conviction for the offense where 

the sentence is less than five years’ imprisonment was 

categorically excluded from being a particularly serious 

crime, but where the sentence is five years’ imprisonment or 

more, is defined as per se particularly serious by statute. 

Third, the panel concluded that it was proper for the IJ to 

consider the circumstances in which Bare came into 

possession of the relevant firearms, the effect of his business 

on the community, and other acts going to his mental state. 

Next, the panel concluded that the IJ lacked jurisdiction 

to consider Bare’s request for adjustment of status because 

Bare was in “asylum-only” proceedings. Bare argued that 

he lost his status as a stowaway when granted asylum and, 

therefore, reopening his asylum-only proceedings was 

improper; instead, he should have been in removal 

proceedings under § 240 of the Immigration and Nationality 

Act, in which an IJ can grant adjustment of status.

The panel first concluded that Bare’s grant of asylum did 

not terminate his stowaway status, explaining that the plain 

meaning of the statute and the statutory context make clear 

that a stowaway retains stowaway status when granted 

asylum. The panel next concluded that, because Bare 

retained his stowaway status, there was no bar to reopening 

his asylum-only proceeding to terminate asylum, and further 
4 BARE V. BARR

explained that regulations allow asylum to be terminated by 

reopening a case, and the case to be reopened here was 

Bare’s asylum-only proceeding. 

The panel also rejected Bare’s contention that, even in 

asylum-only proceedings, he should have been able to apply 

for adjustment. The panel explained that allowing the IJ to 

consider that request would contradict the limits on asylumonly proceedings, and is unnecessary because Bare has 

another avenue to seek adjustment. Specifically, the panel 

explained that Bare met all the requirements to apply for 

adjustment, provided that he also sought and received a 

waiver, but that the application should have been made to the 

United States Citizenship and Immigration Service, which 

retains the authority to consider his request.

COUNSEL

Kari E. Hong (argued), Boston College Law School,

Newton, Massachusetts, for Petitioner.

Michael C. Heyse (argued), Acting Senior Litigation 

Counsel; Mary Jane Candaux, Assistant Director; Joseph H. 

Hunt, Assistant Attorney General; Office of Immigration 

Litigation, Civil Division, United States Department of 

Justice, Washington, D.C.; for Respondent.
BARE V. BARR 5

OPINION

SILER, Circuit Judge:

Ibrahim Farhab Bare, a native and citizen of Somalia, 

petitions for review of a decision of the Board of 

Immigration Appeals (“BIA”) dismissing his appeal. Bare 

came to the United States as a stowaway in 1996, requested 

asylum, and was placed in “asylum-only” proceedings 

before an immigration judge (“IJ”). Bare was granted 

asylum in 1997. Over a decade later, the government moved 

to reopen Bare’s asylum-only proceeding to terminate his 

grant of asylum based on his conviction for being a felon in 

possession of a firearm or ammunition, in violation of 

18 U.S.C. §§ 922(g)(1) and 924(a)(2).1 The IJ granted the 

motion and reopened Bare’s asylum-only proceeding. In the 

reopened proceeding, Bare requested to adjust his status to 

that of a lawful permanent resident, but the IJ refused to 

consider his request, reasoning that an IJ in asylum-only 

proceedings lacks jurisdiction to adjust status. Bare then 

requested a continuance to allow him to apply for an 

adjustment of status with the United States Citizenship and 

Immigration Services (“USCIS”). The IJ terminated Bare’s 

asylum without addressing his continuance request. The IJ 

then denied Bare’s request for withholding of removal, 

finding that his conviction constituted a particularly serious 

crime making him ineligible for it. Finally, the IJ denied 

Bare’s requests for withholding and deferral of removal 

under the Convention Against Torture (“CAT”). Bare 

appealed to the BIA, which affirmed the IJ’s decision.

1 For simplicity, we will omit “or ammunition” when referring to 

Bare’s conviction throughout this opinion.
6 BARE V. BARR

Bare now petitions for review of the BIA’s order 

affirming the IJ’s findings and decision, arguing that the BIA 

and IJ erred in two conclusions: (1) that his firearm 

conviction constitutes a particularly serious crime; and 

(2) that the IJ lacked jurisdiction to consider his request for 

an adjustment of status. The government contends that Bare 

has not exhausted his particularly serious crime argument. 

However, we conclude that Bare has adequately exhausted 

his particularly serious crime argument but the BIA and IJ 

did not err in concluding that his firearm conviction 

constitutes a particularly serious crime, thus making him 

ineligible for withholding of removal. The termination of 

Bare’s grant of asylum by reopening his asylum-only 

proceeding was not error, and the IJ did not have jurisdiction 

to consider Bare’s request for an adjustment of status 

because of the limited scope of such proceedings. Bare’s 

request for an adjustment of status should have been made 

to the USCIS, not the IJ. Therefore, we deny review.

I.

A.

Bare entered the United States in 1996 at the age of 

seventeen as a stowaway aboard a ship. He requested 

asylum and was placed into “asylum-only” exclusion 

proceedings. An IJ granted Bare asylum in 1997. Over the 

next fifteen years, Bare lived as an asylee in the United 

States, but never applied for an adjustment of status to 

become a lawful permanent resident. During this time, Bare 

entered into a relationship with a woman, whom he considers 

his common-law wife, and they have two children together. 

His wife has another child from a previous relationship 

whom Bare identifies as his stepson. While an asylee, Bare 

had three felony convictions prior to his conviction at issue 
BARE V. BARR 7

here: possession of burglary tools in 2000 and resisting 

arrest in both 2001 and 2002.

In 2009, Bare and his wife moved to Whippoorwill, 

Arizona, a small community deep in the Navajo Nation. 

Shortly thereafter, Bare began operating an unlicensed

pawnshop out of his home, where he also sold alcohol and 

drugs. His pawnshop dealt in firearms as well, which is how 

he came into possession of the firearms he was convicted of 

possessing. Not surprisingly, Bare’s business attracted 

trouble for this quiet, rural community. There was an influx 

of vandalism, crime, violence, and unsavory characters. 

During his time in Whippoorwill, there was a series of 

incidents where Bare exhibited aggressive and threatening 

behavior toward others, including children: he verbally 

berated a child at his daughter’s school, he boarded a school 

bus full of middle-school students and cursed and threatened 

them with violence, he pointed a rifle at a teenager and 

threatened to kill him for allegedly stealing a television from

him, and he was part of a group that beat a teenager with a 

baseball bat.

The incident leading to the revocation of Bare’s asylum 

occurred at his house in 2012. One night, a neighbor upset 

about a pawn transaction came to Bare’s house. Bare and 

his children were sleeping in the house, so his wife answered 

the door. An argument ensued which woke up Bare, who 

joined in. The situation escalated when Bare pointed a pistol 

at the unarmed neighbor. As the neighbor left, Bare fired the 

pistol into the air. The police later recovered the pistol and 

five rounds of ammunition from Bare’s house. As a result, 

Bare was charged with being a felon in possession of a 

firearm.

Federal agents went to Bare’s home with an arrest 

warrant a month later, after he failed to appear in court. 
8 BARE V. BARR

Inside the house agents found two rifles and hundreds of 

rounds of ammunition of various calibers.

Bare was convicted by a jury of two counts of being a 

felon in possession of a firearm in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2). He was eventually sentenced to 

54 months’ imprisonment. See United States v. Bare, 

806 F.3d 1011, 1015–17 (9th Cir. 2015) (discussing the 

appellate history of the case and upholding the 54-month 

sentence).

B.

As a result of his conviction, the Department of 

Homeland Security (“DHS”) filed a motion with the IJ to 

reopen Bare’s asylum-only proceeding from 1997 to 

terminate his grant of asylum. The IJ granted the 

government’s motion to reopen the proceeding. In the 

proceeding, Bare applied to the IJ for an adjustment of status, 

but the IJ concluded that he did not have the authority to 

consider it because Bare was in a reopened asylum-only 

proceeding and, in asylum-only proceedings, an IJ cannot 

consider requests for an adjustment of status. Bare then 

requested the IJ defer a decision on whether to terminate his 

asylum in order to allow him time to apply for an adjustment 

of status with the USCIS. The IJ terminated Bare’s asylum 

status without ruling on, or mentioning, his pending 

continuance request. Next, the IJ denied Bare’s request for 

withholding of removal, finding that his firearm conviction 

was a particularly serious crime which made him ineligible 

for withholding of removal. Finally, the IJ denied Bare’s 

request for withholding and deferral of removal under the 

CAT. After the hearing, the IJ denied Bare’s motion to 

reconsider his continuance request to allow him to apply to 

USCIS for an adjustment of status.
BARE V. BARR 9

The BIA affirmed the IJ’s decision, finding that (1) the 

IJ did not have jurisdiction over his adjustment of status 

request and (2) Bare’s firearm conviction was a particularly 

serious crime, barring withholding of removal. Bare now 

seeks review of the BIA’s order affirming the IJ’s findings 

and decision.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). 

To the extent the BIA’s decision arises from asylum-only 

proceedings, the BIA’s denial of Bare’s appeal is the 

functional equivalent of a final order of removal. See Bao 

Tai Nian v. Holder, 683 F.3d 1227, 1230 (9th Cir. 2012).

A.

1.

As a preliminary matter, the government contends that 

we lack jurisdiction over Bare’s specific argument that his 

firearm conviction is a status offense and cannot be a 

particularly serious crime because he failed to exhaust the 

argument by adequately raising the issue before the BIA. 

We disagree.

Exhaustion requires a non-constitutional legal claim to 

the court on appeal to have first been raised in the 

administrative proceedings below, Barron v. Ashcroft, 

358 F.3d 674, 678 (9th Cir. 2004), and to have been 

sufficient to put the BIA on notice of what was being 

challenged, Alvarado v. Holder, 759 F.3d 1121, 1128 (9th 

Cir. 2014). A petitioner must do more than make a “general 

challenge to the IJ’s decision.” Zara v. Ashcroft, 383 F.3d 

927, 930 (9th Cir. 2004). But this does not require the issue 

to have been raised in a precise form during the 
10 BARE V. BARR

administrative proceeding. Vizcarra-Ayala v. Mukasey, 

514 F.3d 870, 873 (9th Cir. 2008); see Diaz-Jimenez v. 

Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (“We do not 

employ the exhaustion doctrine in a formalistic manner.” 

(quoting Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 

2011))). Rather, the petitioner may raise a general argument 

in the administrative proceeding and then raise a more 

specific legal issue on appeal. See Moreno-Morante v. 

Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007). What 

matters is that the BIA was sufficiently on notice so that it 

“had an opportunity to pass on this issue.” Zhang v. 

Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam).

In his brief to the BIA, Bare argued that “the IJ failed to 

consider the appropriate factors and relied on improper 

evidence in making the particular[ly] serious 

determination.” The government contends that this was 

insufficient to put the BIA on notice that he was challenging 

the IJ’s failure to address the first factor of the test used to 

determine if a crime is particularly serious. Bare’s 

contention in his brief to the BIA was that the IJ “failed to 

consider the appropriate factors.” There are only three 

factors. See Flores-Vega v. Barr, 932 F.3d 878, 884 (9th 

Cir. 2019) (noting that, although there were four factors, the 

fourth factor no longer requires an independent inquiry). 

Bare’s brief to the BIA also argued that the IJ erred when 

considering the third factor by improperly weighing 

evidence, so that cannot be the factor that Bare claims the IJ 

“failed to consider.” The IJ in his written opinion explicitly 

noted the second factor, but did not explicitly consider the 

first factor. Thus, when considered in the context provided 

by the IJ’s written decision, Bare’s brief gave the BIA 

sufficient notice that he was challenging the IJ’s failure to 

consider the first factor.
BARE V. BARR 11

The government also contends that Bare’s argument was 

too general to put the BIA on notice of his specific argument 

that being a felon in possession of a firearm is a “status 

offense” and thus cannot be a particularly serious crime 

because it necessarily fails the first factor.

We have previously found exhaustion in cases where the 

argument to the BIA was more general than the argument 

made to the BIA here. See, e.g., Moreno-Morante, 490 F.3d 

at 1173 n.1 (finding a grandfather’s general claim before the 

BIA that he was the de facto parent of his two grandchildren 

constituted administrative exhaustion of his later specific 

statutory argument that his grandchildren came within the 

definition of “child” in the applicable statute); Zhang, 

388 F.3d at 721 (finding administrative exhaustion where 

the petitioner’s brief to the BIA merely stated that he was 

seeking reversal of IJ’s denial of relief under the CAT, but 

did not include any legal arguments or provide a specific 

basis on which he was challenging the IJ’s CAT 

determination). Therefore, the BIA was sufficiently on 

notice and Bare exhausted his legal claims before the BIA, 

so we have jurisdiction.

2.

“Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), we ‘lack 

jurisdiction over the BIA’s ultimate determination that 

[Bare] committed a particularly serious crime.’” FloresVega, 932 F.3d at 884 (quoting Anaya-Ortiz v. Holder, 

594 F.3d 673, 676 (9th Cir. 2010)). “But we retain 

jurisdiction to ‘determine whether the BIA applied the 

correct legal standard.’” Id. (quoting Anaya-Ortiz, 594 F.3d 

at 676). We review for an abuse of discretion. See Arbid v 

Holder, 700 F.3d 379, 385 (9th Cir. 2012) (per curiam). 

Under the abuse-of-discretion standard, we may reverse the 

BIA’s decision only if the BIA acted “arbitrarily, 
12 BARE V. BARR

irrationally, or contrary to law.” Id. (quoting Singh v. INS, 

213 F.3d 1050, 1052 (9th Cir. 2000)). Our review is “limited 

to ensuring that the agency relied on the ‘appropriate factors’ 

and ‘[]proper evidence’ to reach this conclusion.” 

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th 

Cir. 2015) (alteration in original) (quoting Anaya-Ortiz, 

594 F.3d at 676).

With several exceptions, an alien is entitled to 

withholding of removal where “the alien’s life or freedom 

would be threatened in [the country of removal] because of 

the alien’s race, religion, nationality, membership in a 

particular social group, or political opinion.” 8 U.S.C. 

§ 1231(b)(3)(A). One exception is when the alien has been 

convicted of a “particularly serious crime.” Id.

§ 1231(b)(3)(B)(ii). There are two ways in which a crime 

can be a particularly serious crime: (1) an aggravated felony 

resulting in an aggregate sentence of imprisonment of at 

least five years is per se a particularly serious crime, or 

(2) the Attorney General may “designate offenses as 

particularly serious crimes through case-by-case 

adjudication as well as regulation,” Delgado v. Holder, 

648 F.3d 1095, 1098 (9th Cir. 2011) (en banc). See 8 U.S.C. 

§ 1231(b)(3)(B)(iv). Since Bare received less than five 

years’ imprisonment, our inquiry is under the latter category.

In In re Frentescu, 18 I. & N. Dec. 244, 247 (B.I.A. 

1982), the BIA developed a multi-factor test to determine on 

a case-by-case basis whether a crime is particularly serious. 

Subsequent cases have altered and refined the analysis. See

In re N-A-M-, 24 I. & N. Dec. 336, 342 (B.I.A. 2007), 

overruled in part on other grounds by Blandino-Medina v. 

Holder, 712 F.3d 1338, 1347–48 (9th Cir. 2013). The 

factors to be considered are: (1) “the nature of the 

conviction,” (2) “the type of sentence imposed,” and (3) “the 
BARE V. BARR 13

circumstances and underlying facts of the conviction.” Id. 

The nature of the conviction is examined by looking at the 

elements of the offense. Id. This factor serves a gatekeeping 

function: “If the elements of the offense do not potentially 

bring the crime into a category of particularly serious crimes, 

the individual facts and circumstances of the offense are of 

no consequence,” the analysis stops at the first factor, and 

the alien is not barred from withholding of removal. Id. If, 

however, “the elements of the offense are examined and 

found to potentially bring the offense within the ambit of a 

particularly serious crime,” then the other factors are 

considered. Id. In considering the second and third factors, 

“all reliable information may be considered . . . including the 

conviction records and sentencing information, as well as 

other information outside the confines of a record of 

conviction.” Id.

Here, the BIA affirmed the IJ’s determination that Bare’s 

conviction was a particularly serious crime, precluding his 

eligibility for withholding of removal. Bare challenges this 

determination on three grounds. First, he argues that the 

crime of being a felon in possession of a firearm is a “status 

offense” whose elements do not potentially bring it within 

the category of particularly serious crimes. Second, he 

argues that the IJ and the BIA erred by not considering the 

first Frentescu/N-A-M- factor. And third, he argues that, in 

analyzing the third factor, the IJ and BIA erred by 

considering impermissible facts and failing to give adequate 

weight to other, permissible facts.

i.

Bare argues that the IJ and BIA erred by skipping over 

the first Frentescu/N-A-M- factor and not explicitly 

conducting an analysis of it before moving on to the other 

factors. Because the BIA adopted and affirmed the IJ’s 
14 BARE V. BARR

reasoning, and also contributed its own reasoning to the 

analysis, we review both decisions. Zhi v. Holder, 751 F.3d 

1088, 1091 (9th Cir. 2014). In their written decisions, the IJ 

and BIA both discussed the correct standard—the 

Frentescu/N-A-M- factors—for determining if a crime is 

particularly serious. In particular, the IJ emphasized the 

requirement that reviewing the elements of the offense 

occurs first, and only if the elements of the offense 

potentially bring the offense within the ambit of a 

particularly serious crime is the IJ to consider the other 

factors. The BIA found that the IJ “properly arrived” at the 

particularly serious crime determination and noted that the 

IJ had considered the nature of the conviction. Neither the 

IJ nor the BIA listed the elements of felon in possession of a 

firearm in their written decisions, neither explicitly 

discussed the elements of the crime, and neither explicitly 

stated that the crime is potentially particularly serious.

The IJ and BIA correctly noted that Bare had been 

convicted of being a felon in possession of a firearm. As an 

aggravated felony, his conviction is one of the types of 

crimes “most likely to be” particularly serious. Guerrero, 

908 F.3d at 545 (quoting Alphonsus, 705 F.3d at 1043). 

Unlike some state crimes—where it frequently is not 

obvious on its face what the crime actually is, what the 

elements are, or what an analogous federal offense would be 

(if there even is one)—felon in possession of a firearm is a 

straightforward, well-known federal crime with simple 

elements. Cf. Hernandez-Vasquez v. Holder, 430 F. App’x 

448, 452–53 (6th Cir. 2011) (considering the wide variety of 

crimes that fall under Ohio’s felony child endangerment 

statute to determine which of them the alien had been 

convicted of and what the elements of that variant of the 

crime were); N-A-M-, 24 I. & N. Dec. at 343 (examining the 

elements of Colorado’s felony menacing statute). Although 
BARE V. BARR 15

the IJ did not analyze the elements of felon in possession of 

a firearm in isolation, he referenced facts that went directly 

to each element in his analysis as supporting the conclusion 

that Bare’s conviction constitutes a particularly serious 

crime: Bare “possessed a firearm,” which he obtained “as a 

result of his pawn shop operation,” he “had already been 

convicted of a felony,” and he knew he was not allowed to 

possess a firearm because he “hid the gun in a bag of dog 

food to avoid having the authorities find it.” See United 

States v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019) (“To 

convict someone under § 922(g)(1), the government must 

prove four elements: (1) the defendant was a felon; (2) the 

defendant knew he was a felon; (3) the defendant knowingly 

possessed a firearm or ammunition; and (4) the firearm or 

ammunition was in or affecting interstate commerce.”). 

Similarly, the BIA noted that Bare “fired a gun . . . which he 

illegally possessed.” Therefore, where the crime is a 

common federal crime with simple and straightforward 

elements and is an aggravated felony, the maximum possible 

sentence for the crime is more than five years’ 

imprisonment, and the IJ or BIA noted facts which 

correspond to all the elements of the offense as weighing in 

favor of the crime being particularly serious, we see no 

reason to put form over substance. Under these 

circumstances, we will not require an explicit consideration 

of the elements of the offense.

Bare directs our attention to Luziga v. Attorney General, 

937 F.3d 244, 253–54 (3d Cir. 2019), where the Third 

Circuit found that the IJ skipping over the first N-A-M- factor 

was error and remanded to the BIA to apply the first N-A-Mfactor to determine whether the elements of the petitioner’s 

conviction potentially fall within the ambit of a particularly 

serious crime. There, the IJ not only “skipp[ed] right over 

the preliminary consideration of elements,” but also “made 
16 BARE V. BARR

no reference to the elements of [the petitioner’s] offense.” 

Id. at 253–54. And further, while the BIA claimed to 

consider the elements in its opinion, it “listed as ‘elements’ 

specific offense characteristics such as loss amount” which 

were not elements of the offense. Id. at 254. Here, however, 

the IJ and BIA did not erroneously claim that non-elements 

were elements and the IJ referenced facts going to all the 

elements of the crime and found that they pointed in favor of 

its being particularly serious. Therefore, we do not find an 

abuse of discretion under these circumstances.

ii.

Bare next contends that the crime of felon in possession 

of a firearm is a “status offense” not involving an element of 

violence, endangerment, recklessness, injury, or use of a 

weapon and is, therefore, categorically excluded from being 

a particularly serious crime because it necessarily fails the 

first Frentescu/N-A-M- factor. Our review is limited to 

whether it is an abuse of discretion for the BIA to conclude 

that being a felon in possession of a firearm can ever be a 

particularly serious crime where the sentence is less than five 

years’ imprisonment. See Arbid, 700 F.3d at 385.

The first Frentescu/N-A-M- factor requires only that the 

elements of the offense “potentially bring the offense within 

the ambit of a particularly serious crime.” N-A-M-, 24 I. & 

N. Dec. at 342 (emphasis added). This determination is 

made without regard to the individual facts or circumstances 

in the case, but only by reviewing the elements of the crime. 

Id. Thus, this factor’s inquiry is whether—under any factual 

circumstances—the offense could be a particularly serious 

crime or whether it is so minor that it is categorically 

excluded from being particularly serious.
BARE V. BARR 17

In considering the elements of an offense, the BIA is to 

“place the alien’s conviction along a spectrum of 

seriousness.” Guerrero v. Whitaker, 908 F.3d 541, 544 (9th 

Cir. 2018). On one end of the spectrum, we have previously 

used a “minor traffic infraction” as an example of a crime 

that would per se not be a particularly serious crime. Id. On 

the other end, we have used a “heinous, violent crime” as an 

example of a crime that would be particularly serious under 

any factual circumstances. Id. Between these two extremes, 

a review of cases demonstrates that it is a low standard for a 

crime to potentially be a particularly serious crime. We have 

previously upheld a decision by the BIA that mail fraud can 

constitute a particularly serious crime. Arbid, 700 F.3d 

at 385. Other circuits have upheld the BIA’s determination 

that a variety of crimes can constitute particularly serious 

crimes, including: aggravated identity theft, ValerioRamirez v. Sessions, 882 F.3d 289, 299–300 (1st Cir. 2018); 

evidence tampering, Denis v. Att’y Gen., 633 F.3d 201, 216 

(3d Cir. 2011); securities fraud, Kaplun v. Att’y Gen., 

602 F.3d 260, 267–68 (3d Cir. 2010); and reckless 

endangerment, Nethagani v. Mukasey, 532 F.3d 150, 155 (2d 

Cir. 2008). In attempting to delineate the other side of the 

boundary—crimes that are per se excluded from being 

particularly serious crimes—Bare points to no case, and we 

are unable to find any, in which a court concluded that a 

particular felony is per se not particularly serious.

We have also previously recognized that the statute 

treating aggravated felonies which result in imprisonment 

for at least five years as per se particularly serious crimes 

suggests that aggravated felonies are “the types of crimes 

most likely to be [particularly serious crimes] even when the 

aggregate sentence is less than five years.” Guerrero, 908 

F.3d at 545 (quoting Alphonsus v. Holder, 705 F.3d 1031, 

1043 (9th Cir. 2013)). Because felon in possession of a 
18 BARE V. BARR

firearm is an aggravated felony, see 8 U.S.C. 

§ 1101(a)(43)(E)(ii), we would expect it to fall toward the 

more serious end of the spectrum and be among “the types 

of crimes most likely to be” particularly serious crimes under 

the Frentescu/N-A-M- analysis. Guerrero, 908 F.3d at 545. 

It would be anomalous if a conviction for being a felon in 

possession of a firearm where the sentence is less than five 

years’ imprisonment was categorically excluded from being 

a particularly serious crime, but where the sentence is five 

years’ imprisonment or more, it is per se particularly serious. 

We, therefore, conclude that it is not an abuse of discretion 

to conclude that the crime of being a felon in possession of 

a firearm can potentially be particularly serious.

iii.

Finally, Bare argues that, even if the first factor is met, 

the BIA erred by relying on improper evidence in reaching 

its conclusion that his conviction constitutes a particularly 

serious crime. He contends that the IJ and BIA erred by not 

considering facts relating to the crime of being a felon in 

possession, such as discussing the nature of his three prior 

felonies or his claim that he possessed firearms and 

ammunition for self-defense. He also contends that the IJ 

and BIA erred by considering facts which did not directly go 

to an element of the offense, such as the fact that he fired the 

weapon. According to Bare, the IJ and BIA should be 

limited to considering only what he did to be convicted of 

the offense.

The BIA may consider “all reliable information” in 

determining whether a crime constitutes a particularly 

serious crime, which is a wide-reaching inquiry and includes 

consideration of conviction records, sentencing information, 

and “other information outside the confines of a record of 

conviction.” N-A-M-, 24 I. & N. Dec. at 342; see also 
BARE V. BARR 19

Anaya-Ortiz, 594 F.3d at 678. “[N]othing in the language of 

the ‘particularly serious crime’ provisions in the 

[Immigration and Nationality Act (“INA”)] limits the scope 

of permissible evidence.” Anaya-Ortiz, 594 F.3d at 678.

Here, all the information that the BIA considered was 

introduced in Bare’s criminal case during sentencing so, as 

sentencing information, falls within the information 

specifically allowed to be considered. See N-A-M-, 24 I. & 

N. Dec. at 342. But, Bare contends that, since the 

information does not go toward the elements of the crime, it 

should not be considered. Most of the evidence considered 

by the IJ went to the manner in which Bare possessed the 

firearms and ammunition, namely how he came into 

possession of the firearms and ammunition (through the 

operation of an unlicensed pawnshop that trafficked in 

firearms, drugs, and alcohol), how he possessed the firearm 

(by firing it inside a house to threaten a neighbor during a 

verbal altercation, which presented a safety risk to other 

individuals inside the house), and his mental state relating to 

possessing the firearm (that he knew he could not possess a 

firearm, so he hid it inside a bag of dog food). This 

information is within the realm of what the IJ and BIA could 

consider. See id. at 337, 343 (considering, in evaluating 

whether a conviction for felony menacing in Colorado was a 

particularly serious crime, both the act that constituted the 

felony menacing—threatening to kill someone after 

retrieving two knives—but also the circumstance in which 

the felony menacing occurred—after he was caught 

performing a nonconsensual sexual act on a person who was 

asleep); see also Denis, 633 F.3d at 216 (finding that the BIA 

did not err in concluding that a conviction for tampering with 

evidence was a particularly serious crime by considering the 

tampering included “violently dismembering and concealing 

his victim”).
20 BARE V. BARR

The IJ also considered the effect that Bare’s pawn 

business had on the community and other instances of Bare’s 

making threats or being violent—information contained in 

the government’s sentencing memorandum. Bare testified 

before the IJ and denied the threats or acts of violence, but 

here he does not challenge the reliability of the sentencing 

memorandum. Rather, Bare contends that it is improper 

evidence because it does not relate to his felon in possession 

conviction. See Alaka v. Att’y Gen., 456 F.3d 88, 109 (3d 

Cir. 2006) (“Dismissed charges ipso facto are not 

convictions, and thus are not taken into account in . . . the

. . . ‘particularly serious crime’ analysis.”), overruled on 

other grounds by Bastardo-Vale v. Att’y Gen., 934 F.3d 255 

(3d Cir. 2019); Yousefi v. INS, 260 F.3d 318, 329–30 (4th 

Cir. 2001) (per curiam) (“We can find no authority for the 

proposition that dismissed counts or crimes not relied upon 

by the Service may be considered in determining whether a 

specific crime is a particularly serious one.”). However, IJs 

may consider evidence about the alien which does not go to 

an element of the crime “as part of the separate 

determination of dangerousness.” Gomez-Sanchez v. 

Sessions, 892 F.3d 985, 993–94 (9th Cir. 2018). We allow 

this even though a separate dangerousness determination is 

no longer considered independently as a factor in the 

particularly serious crime analysis. Id. at 991. 

“[D]angerousness remains the ‘essential key’ to determining 

whether the individual’s conviction was for a particularly 

serious crime.” Id. (quoting Alphonsus, 705 F.3d at 1041). 

In considering the seriousness of the crime, the IJ is 

“assessing whether the circumstances of the crime are so 

serious as to justify removal to a country where there is a 

significant risk of persecution.” Id. at 994. Therefore, it was 

proper for the IJ to consider the circumstances in which Bare 

came into possession of the firearms he was convicted of 

possessing, the effect of that broader business on the 
BARE V. BARR 21

community, and other acts which go to his mental state. 

Noting again that our review “is limited to ensuring that the 

agency relied on the ‘appropriate factors’ and ‘[]proper 

evidence’ to reach this conclusion,” Avendano-Hernandez, 

800 F.3d at 1077 (alteration in original), and that we “cannot 

reweigh evidence to determine if the crime was indeed 

particularly serious,” Blandino-Medina, 712 F.3d at 1343, 

we cannot say that the evidence the BIA relied on to 

conclude that Bare’s conviction is particularly serious was 

an abuse of its discretion.

Therefore, as the BIA did not abuse its discretion in 

concluding that Bare’s conviction for being a felon in 

possession of a firearm constitutes a particularly serious 

crime, Bare is ineligible for withholding of removal.

B.

Bare contends that the IJ erred by refusing to consider 

his request for an adjustment of status. The IJ determined 

that, because Bare was in asylum-only proceedings, he did 

not have jurisdiction to consider a request for an adjustment 

of status; the BIA agreed with the IJ’s conclusion. Bare 

argues that he lost his status as a stowaway when granted 

asylum and, therefore, reopening his asylum-only 

proceedings to terminate his grant of asylum was improper. 

Bare contends that as an asylee he should have instead been 

in INA § 240 removal proceedings, 8 U.S.C. § 1229a, in 

which an IJ can grant a request for an adjustment of status. 

In the alternative, Bare argues that, (1) even if he is still a 

stowaway, he should nonetheless have been in INA § 240 

proceedings because of his status as an asylee and (2) even 

if asylum-only proceedings were proper, the IJ nonetheless 

had authority to adjudicate his request for an adjustment of 

status because of his status as an asylee. The government 

contends that Bare was properly in asylum-only proceedings 
22 BARE V. BARR

and that the IJ correctly determined that he did not have 

jurisdiction to consider Bare’s request for an adjustment of 

status. In supplemental briefing, the government suggests 

that the USCIS, not the IJ, was the appropriate adjudicator 

of his request for an adjustment of status.

1.

We begin by addressing Bare’s eligibility to apply for an 

adjustment of status. All asylees meeting the statutory 

requirements may apply for an adjustment of status. 

8 U.S.C. § 1159(b). One of the requirements is that the 

asylee “is admissible.” Id. § 1159(b)(5). Bare’s firearm 

conviction makes him inadmissible, but the statute provides 

that the Secretary of Homeland Security (“DHS Secretary”) 

or the Attorney General may waive all but five of the 

grounds for inadmissibility listed in 8 U.S.C. § 1182(a) “for 

humanitarian purposes, to assure family unity, or when it is 

otherwise in the public interest.” Id. § 1159(c). Bare’s 

inadmissibility as a result of his conviction is waivable, so 

he could apply to have his status adjusted and for a waiver 

of the admissibility requirement.2

 See id.

Neither the government’s motion to reopen Bare’s 

asylum-only case, nor the IJ’s granting the motion, 

terminated his asylum. See 8 C.F.R. § 1208.24(f). Bare 

remained an asylee until the IJ terminated his asylum. See

id. As a result, Bare remained eligible to apply for an 

adjustment of status and a waiver, at the very least, until his 

asylum was terminated by the IJ. See 8 U.S.C. § 1159(b); cf.

Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2014) (holding 

2 As discussed infra, an alien’s status as a stowaway is also 

waivable. See 8 U.S.C. §§ 1159(c), 1182(a)(6)(D).
BARE V. BARR 23

that an alien whose asylum has been terminated may still 

apply for an adjustment of status).

2.

Since Bare was eligible to apply for an adjustment of 

status, and the IJ refused to consider his application because 

of an IJ’s limited jurisdiction in asylum-only proceedings, 

we must determine what avenue Bare could have used to 

apply for an adjustment of status. That is, could he have 

applied to the IJ in asylum-only proceedings, or was he 

limited to applying to an IJ in INA § 240 proceedings or to 

the USCIS? To answer this question requires us to 

determine whether the government was required to terminate 

his asylum in INA § 240 proceedings or whether doing so by 

reopening his asylum-only proceeding was permissible. 

Before we can do that, we must first resolve the issue of 

Bare’s status: did he lose his status as a stowaway when 

granted asylum?

Bare argues that he lost his status as a stowaway when 

he was granted asylum. The government argues that, when 

Bare lost his asylee status, “[t]hat returned him to the 

stowaway status he possessed prior to obtaining asylum,” 

which suggests the government agrees with Bare’s assertion 

that a grant of asylum terminates an alien’s prior status. 

However, neither of these positions is consistent with the 

statutory text. Instead, the statute is clear that a grant of 

asylum is not a change in status—from a stowaway to an 

asylee—but confers on the stowaway an additional status as 

an asylee. See 8 U.S.C. §§ 1158(b)(1)(A), 1159.

“When interpreting a statute, we are guided by the 

fundamental canons of statutory construction and begin with 

the statutory text.” United States v. Neal, 776 F.3d 645, 652 

(9th Cir. 2015). The statute governing asylum, 8 U.S.C. 
24 BARE V. BARR

§ 1158, provides that an alien “may apply for asylum,” id.

at § 1158(a)(1), and that the DHS Secretary or Attorney 

General “may grant asylum to an alien who has applied,” id.

at § 1158(b)(1)(A) (emphasis added). The operative word in 

the statute is “grant,” which is not defined in the statute or 

by regulation. The applicable dictionary definition of 

“grant” means to “give, bestow, [or] confer.” Grant, MerriamWebster Unabridged Dictionary, https://unabridged.merriamwebster.com/unabridged/grant. In this context, the word 

“grant” conveys the receiving of a status. It does not convey 

a termination of a prior status or a change from one status to 

another. Thus, the express terms of the statute make clear 

that a grant of asylum to an alien provides a new status which 

does not terminate or change any status that the alien already 

held.

This understanding of the import of a grant of asylum in 

§ 1158 is consistent with the surrounding statutory context. 

See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) 

(“Interpretation of a word or phrase depends upon reading 

the whole statutory text, considering the purpose and context 

of the statute, and consulting any precedents or authorities 

that inform the analysis.”). Most notable is § 1159, which 

addresses asylees adjusting their status to that of a lawful 

permanent resident. It provides that the DHS Secretary or 

Attorney General “may adjust to the status of an alien 

lawfully admitted for permanent residence the status of any 

alien granted asylum” who meets certain requirements. 

8 U.S.C. § 1159(b) (emphasis added). When read together, 

Congress provides that an alien may be “grant[ed]” asylum 

and afterwards that alien may have his or her status 

“adjust[ed] to” that of a lawful permanent resident. Id.

§§ 1158(b)(1)(A), 1159(b). Both § 1158 and § 1159 were 

enacted as part of the Refugee Act of 1980, as sections § 208 

and § 209, respectively. See Pub. L. No. 96-212, §§ 208, 
BARE V. BARR 25

209, 94 Stat. 102, 105–06. “It is a well-established canon of 

statutory interpretation that the use of different words or 

terms within a statute demonstrates that Congress intended 

to convey a different meaning for those words.” SEC v. 

McCarthy, 322 F.3d 650, 656 (9th Cir. 2003). We “must 

presume that Congress intended a different meaning when it 

uses different words in connection with the same subject.” 

Ariz. Health Care Cost Containment Sys. v. McClellan, 

508 F.3d 1243, 1250 (9th Cir. 2007). Congress, then, must 

have intended something different by using “grant” to 

describe an alien becoming an asylee and “adjust to” to 

describe that same alien later becoming a lawful permanent 

resident.

To determine what Congress intended by using “grant” 

in § 1158, we must also examine the meaning of “adjust to” 

in § 1159. Although we have not considered the meaning of 

“adjust to” in § 1159 and whether an asylee loses his or her 

status as an asylee when adjusting to the status of a lawful 

permanent resident, the BIA and several other circuits have.3

In In re N-A-I-, 27 I. & N. Dec. 72 (B.I.A. 2017), the BIA 

considered whether aliens who had been granted asylum 

retain the status of an asylee when they adjust their status to 

that of a lawful permanent resident. There, the respondent 

had adjusted his status to that of a lawful permanent resident 

and he argued to the BIA that he could not be removed 

3 When we were previously faced with this question, we did not 

decide whether an adjustment of status terminates an alien’s grant of 

asylum because the result was the same either way in that case. See

Robleto-Pastora v. Holder, 591 F.3d 1051, 1059 (9th Cir. 2010) 

(“Without deciding and regardless of whether Robleto simultaneously 

holds asylee and [lawful permanent resident] status, we conclude that he 

is ineligible for relief from removal under . . . 8 U.S.C. § 1159, and that 

his petition must therefore be denied.”).
26 BARE V. BARR

because his asylum status had never been terminated—i.e., 

that his adjustment of status did not terminate his status as 

an asylee. Id. at 73. The BIA held that “an alien’s 

adjustment from the status of an alien granted asylum to that 

of an alien lawfully admitted for permanent residence 

pursuant to [§ 1159(b)] terminates the alien’s asylee status.” 

Id. at 74. The BIA based this determination “on the statutory 

language, as well as the relevant regulatory provisions, case 

law, and legislative history.” Id. at 75. Because “adjustment 

of status” is not defined by statute, the BIA looked to the 

dictionary definition of “adjust” which means “to bring to a 

more satisfactory state,” or “to change the position of.” Id.

(quoting Adams v. Holder, 692 F.3d 91, 97 (2d Cir. 2012) 

(quoting Webster’s Third New International Dictionary 27 

(1986))). The BIA concluded that “[a]n adjustment of status 

. . . involves a change from one status to another status, not 

the acquisition of an additional status. In other words, an 

alien whose status is changed does not retain his or her 

previous status.” Id. An adjustment of status “extinguishes 

the alien’s asylee status.” Id.

The BIA’s decision in N-A-I- was appealed to the Fifth 

Circuit. Ali v. Barr, 951 F.3d 275 (5th Cir. 2020). In Ali, 

the Fifth Circuit affirmed the BIA’s determination that an 

alien loses the status of an asylee when adjusting his or her 

status. The court emphasized that, not only is the use of 

“adjust” important, but so is the use of the word “to,” which 

“indicates the alien’s status is altered in a more fundamental 

sense—the alien goes from one status to another.” Id. at 280. 

Citing several dictionary definitions, the court noted that 

“[t]he word ‘to’ also denotes the arrival at a new terminus.” 

Id. The court concluded, “[o]n the plain text, then, the BIA 

was correct to conclude a new [lawful permanent resident] 

discards his old asylee status.” Id.
BARE V. BARR 27

The Fourth Circuit has also considered this issue and 

reached the same conclusion. Mahmood v. Sessions, 

849 F.3d 187 (4th Cir. 2017). It concluded that an 

adjustment of status in § 1159(b) “describes a process of 

‘adjustment’ from the former ‘to’ the latter. A provision that 

addresses two statuses and provides for the adjustment from 

one ‘to’ the other appears clearly to indicate a change to and 

not an accretion of the second status.” Id. at 191. And the 

Second Circuit, in considering adjustments of status under a 

different statutory provision, similarly concluded that an 

adjustment of status is a change from one status to another. 

Adams, 692 F.3d at 97–98.

Thus, the surrounding statutory context confirms our 

interpretation of “grant.” Congress’s use of “adjust to” in 

§ 1159 to convey a change from one status to another status 

supports our conclusion that Congress’s use of “grant” in 

§ 1158 was intended to convey something different: the 

addition of a status rather than a change from one status to 

another. See McCarthy, 322 F.3d at 656 (“Congress’s 

explicit decision to use one word over another in drafting a 

statute is material.”).

That a grant of asylum does not terminate an alien’s 

status as a stowaway is also consistent with the larger 

statutory scheme. See Choin v. Mukasey, 537 F.3d 1116, 

1120 (9th Cir. 2008) (considering the statutory scheme in 

interpreting the meaning of a term in the INA); Bona v. 

Gonzales, 425 F.3d 663, 670 (9th Cir. 2005) (same). Not all 

asylees are eligible to adjust their status. See 8 U.S.C. 

§ 1159(b). Instead, only asylees meeting certain 

requirements are eligible to adjust their status. See id.

(listing five eligibility requirements for an asylee to be able 

to adjust his or her status). One of the requirements is that 

the asylee “is admissible . . . at the time of examination for 
28 BARE V. BARR

adjustment.” Id. § 1159(b)(5). The statute also includes a 

waiver provision which allows the DHS Secretary or 

Attorney General to waive most of the grounds for 

inadmissibility listed in § 1182(a) “for humanitarian 

purposes, to assure family unity, or when it is otherwise in 

the public interest.” Id. § 1159(c). The waiver provision 

lists several grounds for inadmissibility in § 1182(a) which 

do not constitute an inadmissibility for purposes of adjusting 

one’s status. Id. § 1159(b), (c). And the waiver provision 

also includes several grounds for inadmissibility which 

cannot be waived. Id. § 1159(c). Thus, § 1159(b) and (c) 

create four categories of asylees with respect to adjustments 

of status: (1) admissible asylees who may adjust their status 

(provided they meet the other four criteria); (2) inadmissible 

asylees whose inadmissibility does not make them ineligible 

to adjust their status; (3) inadmissible asylees who can seek 

a waiver of the admissibility requirement to adjust their 

status; and (4) inadmissible asylees who cannot seek a 

waiver of the admissibility requirement and are statutorily 

barred from adjusting their status.

A stowaway is not admissible under § 1182(a). See id.

§ 1182(a)(6)(D) (“Any alien who is a stowaway is 

inadmissible.”). Being a stowaway is not one of the grounds 

for inadmissibility listed in § 1159(c) that is excepted from 

the admissibility requirement and it is also not included in 

the list of grounds for inadmissibility that cannot be waived. 

See id. § 1159(c). Thus, a stowaway-asylee would fall into 

the category of inadmissible asylees who can seek a waiver 

of the admissibility requirement to adjust his or her status. 

The operation of § 1159 is thus consistent with a stowaway’s 

retaining his or her status when granted asylum. If an alien 

lost the status as a stowaway when granted asylum, it would 

be expected that a stowaway’s inadmissibility would be 
BARE V. BARR 29

included in § 1159(c)’s list of grounds of inadmissibility that 

do not require a waiver.

Not only is a stowaway retaining his or her status when 

granted asylum consistent with § 1159(c), the opposite is 

inconsistent with § 1159(c). Some grounds of 

inadmissibility that do not need a waiver and some that are 

non-waivable necessarily would have preceded the alien’s 

being granted asylum. The former category includes “[a]ny 

alien who seeks to enter the United States for the purpose of 

performing skilled or unskilled labor” without certain 

certifications having been made by the Secretary of Labor. 

Id. § 1182(a)(5)(A)(i) (emphasis added).4 The latter 

category includes “[a]ny alien who, during the period 

beginning on March 23, 1933, and ending on May 8, 1945, 

under the direction of, or in association with . . . the Nazi 

government of Germany” who “ordered, incited, assisted, or 

otherwise participated in the persecution of any person 

because of race, religion, national origin, or political 

opinion.”5 8 U.S.C. § 1182(a)(3)(E)(i). Similarly, 

individuals who participated in genocide, torture, or 

4 The other two categories of aliens listed in § 1182(a)(5) would also 

have had their respective grounds for inadmissibility prior to being 

granted asylum. See 8 U.S.C. § 1182(a)(5)(B) (providing that “[a]n alien 

. . . who is coming to the United States principally to perform services as 

a member of the medical profession is inadmissible” unless certain 

requirements are met (emphasis added)); id. § 1182(a)(5)(C) (providing 

that “any alien who seeks to enter the United States for the purpose of 

performing labor as a health-care worker, other than a physician, is 

inadmissible” unless certain requirements are met (emphasis added)).

5 Any alien with this status would necessarily have had it prior to 

being granted asylum. This ground of inadmissibility was added in 1978, 

see Pub. L. No. 95-549, § 101, 92 Stat. 2065, 2065 (1978), and it was 

made a non-waivable inadmissibility for purposes of an asylee adjusting 

his or her status in 1980, Refugee Act of 1980 § 209, 94 Stat. at 106.
30 BARE V. BARR

extrajudicial killing cannot have their inadmissibility 

waived.6 Id. § 1182(a)(3)(E)(ii), (iii).7 If an alien lost his or 

6 “Any alien who a consular officer or the Attorney General knows, 

or has reasonable ground to believe, seeks to enter the United States to 

engage solely, principally, or incidentally in” espionage, sabotage, 

violate export controls, any other unlawful activity, or overthrow the 

government, 8 U.S.C. § 1182(a)(3)(A) (emphasis added), is also 

prohibited from having these grounds for inadmissibility—which 

necessarily would have preceded a grant of asylum—waived, see id.

§ 1159(c).

7 Although these aliens are not eligible for asylum in the first place, 

see 8 U.S.C. § 1158(b)(2)(A)(i), (iii) (providing that asylum may not be 

granted to an alien who “participated in the persecution of any person on 

account of race, religion, nationality, membership in a particular social 

group, or political opinion” or if “there are serious reasons for believing 

that the alien has committed a serious nonpolitical crime outside the 

United States prior to the arrival of the alien in the United States”), they 

have not always been ineligible for asylum. The original version of the 

asylum statute did not include any exceptions regarding who could be 

granted asylum. See Refugee Act of 1980 § 208, 94 Stat. at 105. An 

exception providing that aliens convicted of aggravated felonies could 

not apply for, or be granted, asylum was added in 1990. See Immigration 

Act of 1990, Pub. L. No. 101-649, § 515, 104 Stat. 4978, 5053. And the 

current exceptions, with subsequent minor changes, were added in 1996. 

See Illegal Immigration Reform and Immigrant Responsibility Act of 

1996, Pub. L. No. 104-208, div. C, § 604, 110 Stat. 3009, 3009-690 to -

694. Meanwhile, the waiver provision for adjustments of status, enacted 

in the Refugee Act of 1980, § 209, has remained largely intact with only 

minor modifications. See Immigration Act of 1990 § 603, 104 Stat. 

at 5082 (modifying the waiver provision to correspond with formatting 

modifications to § 1182). Additional classes of inadmissible aliens have 

also been added to § 1159(c), thus adding to the class of non-waivable 

grounds. See, e.g., Intelligence Reform and Terrorism Prevention Act of 

2004, Pub. L. No. 108-458, § 5501, 118 Stat. 3638, 3740 (adding torture 

and extrajudicial killing). Thus, at least at one point in time, some 

inadmissible aliens could receive a grant of asylum but that 

inadmissibility precluded the alien from later being able to adjust his or 

her status. See 8 U.S.C. §§ 1158, 1159(c), 1182(a)(14), (15), (25), (32), 

(33) (1982) (specifying several categories of aliens who could be granted 
BARE V. BARR 31

her status when granted asylum, there would be no need for 

these grounds for inadmissibility to be included as 

exceptions to the waiver requirement. Cf. Neal, 776 F.3d 

at 652 (“We must ‘interpret [the] statut[e] as a whole, giving 

effect to each word and making every effort not to interpret 

a provision in a manner that renders other provisions of the 

same statute inconsistent, meaningless or superfluous.’” 

(alteration in original) (quoting Boise Cascade Corp. v. EPA, 

942 F.2d 1427, 1432 (9th Cir. 1991))). For the inclusion of 

these inadmissibility grounds not to be meaningless or 

superfluous, aliens granted asylum must retain their previous 

inadmissibility status when granted asylum. See id.; Bosley 

Med. Inst., Inc. v. Kremer, 403 F.3d 672, 681 (9th Cir. 2005) 

(“We try to avoid, where possible, an interpretation of a 

statute ‘that renders any part of it superfluous and does not 

give effect to all of the words used by Congress.’” (quoting 

Nevada v. Watkins, 939 F.2d 710, 715 (9th Cir. 1991))).

Bare relies on two cases to argue that he lost his status as 

a stowaway when granted asylum—neither is persuasive. 

He first relies on a quote from N-A-I- which provides that 

“an alien whose status is changed does not retain his or her 

previous status.” 27 I. & N. Dec. at 75. When put into 

context, this quote does not support Bare’s argument, but 

actually undermines it. It states:

An adjustment of status under the Act 

involves a change from one status to another 

status, not the acquisition of an additional 

status. In other words, an alien whose status 

is changed does not retain his or her previous 

asylum despite being inadmissible—and whose inadmissibility 

necessarily existed prior to their grant of asylum—but who could not 

adjust their status).
32 BARE V. BARR

status. In the context of [§ 1159(b)], the 

adjustment entails a change from “the status 

of an[] alien granted asylum” to “the status of 

an alien lawfully admitted for permanent 

residence,” which extinguishes the alien’s 

asylee status.

Id. (second alteration in original) (emphasis added). In 

N-A-I-, the BIA concluded that an adjustment of status is a 

“change from one status to another” because of the 

dictionary definitions of “adjust,” one of which was “to 

change the position of.” Id. (citation omitted). But here, the 

operative phrase is not “adjust to” but “grant,” whose 

definition does not convey a change from one status to 

another. So, not only does this quote from N-A-I- not 

support his argument, as discussed supra, N-A-I-’s 

conclusion regarding the import of an adjustment of status 

supports our conclusion that a grant of asylum is the 

“acquisition of an additional status” rather than “a change 

from one status to another status.” Id.

Bare also relies on Marincas v. Lewis, 92 F.3d 195 

(3d Cir. 1996), which concluded that “Congress clearly and 

unambiguously intended that the Attorney General establish 

a uniform asylum procedure that is to be applied irrespective 

of an alien’s status as a stowaway.” Id. at 201. Based on 

this, Bare contends that all aliens must be on equal footing 

after they are granted asylum with regard to applying for an 

adjustment of status. But Marincas does not support this 

contention. In Marincas, the Immigration and 

Naturalization Service (“INS”), the forerunner to the USCIS, 

had two different procedures for aliens seeking asylum: one 

for stowaways and one for all other aliens seeking asylum. 

Id. at 199–200. The INS’s procedures for stowaways were 

less favorable to the applicant than the procedures provided 
BARE V. BARR 33

for other aliens applying for asylum. Id. “Section 1158(a), 

however, mandates that the asylum procedure established by 

the Attorney General be applied irrespective of an alien’s 

status, which clearly would include aliens with stowaway 

status.” Id. at 201. In other words, Marincas held that 

§ 1158(a) required that the procedure for adjudicating 

asylum claims by stowaways be the same procedure as used 

for adjudicating asylum claims by other aliens who are 

eligible to apply for asylum. Marincas says nothing about 

how asylees are to be treated with regard to one another 

when applying for an adjustment of status.

Unlike § 1158(a), where the Marincas court found clear 

congressional intent in the use of the phrase “irrespective of 

such alien’s status,” § 1159 does not use that phrase, nor 

anything like it. Bare points to the text of § 1159(b) that 

refers to “any alien granted asylum,” and claims that 

disadvantaging a stowaway once he or she has been granted 

asylum by virtue of his or her stowaway status would be 

inconsistent with “Congress’s directive for adjustment of 

status to be available to ‘any alien granted asylum.’” But 

that is not what Congress provided. Congress did not 

provide that all asylees could adjust their status. Instead, 

Congress provided that asylees who meet five criteria are 

eligible to adjust their status, and provided that some asylees 

who do not meet the five criteria can obtain a waiver of the 

admissibility requirement. 8 U.S.C. § 1159(b). Congress 

also barred some asylees from being able to adjust their 

status. Id. at § 1159(c). Thus, contrary to Bare’s assertion, 

Congress in § 1159 explicitly provided that not all asylees 

are eligible to adjust their status and, unlike § 1158, that 

there can be different procedures for how asylees apply for 

an adjustment of status (i.e., requiring some asylees to also 

apply for a waiver).
34 BARE V. BARR

To conclude, as both Bare and the government would 

have us do, that an alien loses his or her previous status when 

granted asylum would be to ignore the plain meaning of the 

statute as well as Congress’s explicit decision to use the 

word “grant” rather than “adjust to.” The plain meaning of 

the statute and the statutory context make clear that a 

stowaway retains his or her status as a stowaway when 

granted asylum. As a result, Bare is not entitled to INA 

§ 240 proceedings to have his grant of asylum terminated by 

no longer being a stowaway.

3.

Bare contends that his status as an asylee entitles him to 

INA § 240 removal proceedings even if he also retains his 

stowaway status. The government contends that it was 

permissible for Bare’s asylum to be terminated by reopening 

his asylum-only proceeding and that, in such proceedings, 

the IJ does not have authority to consider an adjustment of 

status request.

No statute provides a procedure for how a grant of 

asylum is to be terminated. The asylum statute explains the 

circumstances under which the Attorney General may 

terminate asylum but does not provide a procedure for how 

the Attorney General is to do so. See 8 U.S.C. § 1158(c)(2). 

The statute includes a section titled “[r]emoval when asylum 

is terminated,” which provides: “An alien [whose asylum 

may be terminated] is subject to any applicable grounds of 

inadmissibility or deportability under section[s] 1182(a) and 

1227(a) of this title, and the alien’s removal or return shall 

be directed by the Attorney General in accordance with 

sections 1229a [INA § 240] and 1231 of this title.” Id.

§ 1158(c)(3). By its terms, this section does not explain how

asylum is to be terminated, but only governs removal “when

asylum is terminated.” Id. (emphasis added); see also 
BARE V. BARR 35

Robleto-Pastora v. Holder, 591 F.3d 1051, 1058 n.5 (9th 

Cir. 2010) (stating that § 1158(c)(3) “simply provides that 

asylum may be terminated under specific circumstances and 

says nothing about formal termination proceedings”).

The procedures for how to terminate asylum are 

provided by regulation. Where, as here, asylum was granted 

by an IJ, the IJ may reopen the case to terminate a grant of 

asylum. 8 C.F.R. §§ 208.24(f), 1208.24(f). The USCIS may 

make a motion to an IJ to have a case reopened. See id.

§ 1003.23(b)(1), (3). There is no time limit for how long 

after a case is closed that the government may seek to reopen 

it. See id. §§ 1003.23(b)(1), 1208.24(f).

The authority for asylum-only procedures for stowaways 

is 8 U.S.C. § 1225, which provides that “[a]n arriving alien 

who is a stowaway is not eligible to apply for admission or 

to be admitted” but a stowaway “may apply for asylum” if 

the stowaway is “found to have a credible fear of 

persecution.” Id. § 1225(a)(2). However, “[i]n no case may 

a stowaway be considered an applicant for admission or 

eligible for a hearing under section 1229a [INA § 240].” Id. 

The procedures in asylum-only proceedings are the same 

procedures as in INA § 240 removal proceedings, but the 

scope of review is “limited to a determination of whether the 

alien is eligible for asylum or withholding or deferral of 

removal, and whether asylum shall be granted in the exercise 

of discretion.” 8 C.F.R. § 1208.2(c)(3)(i). In addition, “all 

parties are prohibited from raising or considering any other 

issues, including but not limited to issues of admissibility, 

deportability, eligibility for waivers, and eligibility for any 

other form of relief.” Id.

Bare argues that 8 C.F.R. § 1208.24(g) requires INA 

§ 240 removal proceedings to terminate his grant of asylum. 

Section 1208.24(g) provides:
36 BARE V. BARR

Termination of asylum for arriving aliens. If 

the Service determines that an applicant for 

admission who had previously been granted 

asylum in the United States falls within 

conditions set forth in § 1208.24 and is 

inadmissible, the Service shall issue a notice 

of intent to terminate asylum and initiate 

removal proceedings under [INA § 240]. The 

alien shall present his or her response to the 

intent to terminate during proceedings before 

the immigration judge.

This section addresses what to do with “applicant[s] for 

admission who had previously been granted asylum” who 

are found to be inadmissible. Id. The phrase “applicant for 

admission” is used to refer to a subset of aliens. See 8 U.S.C. 

§ 1225(a)(1) (stating that “[a]n alien present in the United 

States who has not been admitted or who arrives in the 

United States . . . shall be deemed for purposes of this 

chapter an applicant for admission”). Stowaways are 

specifically excluded from being applicants for admission. 

Id. § 1225(a)(2) (“In no case may a stowaway be considered 

an applicant for admission . . . .”); see also 8 C.F.R. 

§§ 235.1(f)(4) (providing that “[a]n alien stowaway is not an 

applicant for admission”), 1235.1(d)(4) (providing that “[a]n 

alien stowaway is not an applicant for admission”). Since, 

as 8 C.F.R. § 1208.24(g) indicates, an alien’s status as “an 

applicant for admission” continues after the alien has been 

granted asylum, see also In re V-X-, 26 I. & N. Dec. 147, 150 

(B.I.A. 2013) (“[A]lthough the [alien’s] grant of asylum 

conferred a lawful status upon him, it did not entail an 

‘admission.’”), to include stowaways who have been granted 

asylum within § 1208.24(g) would contravene 8 U.S.C. 

§ 1225(a)’s clear mandate that “[i]n no case may a stowaway 

be considered an applicant for admission.” So, § 1208.24(g) 
BARE V. BARR 37

is not applicable to Bare because a stowaway-asylee is not 

“an applicant for admission who had previously been 

granted asylum” but a non-applicant for admission who has 

previously been granted asylum.

Because Bare retains his status as a stowaway, there is 

no statutory or regulatory bar to the government’s moving to 

reopen, and the IJ’s reopening, his asylum-only proceeding 

for the purpose of terminating his grant of asylum. Asylum 

may be terminated by reopening a case. 8 C.F.R. 

§ 1208.24(f). Since Bare’s asylum was granted in an 

asylum-only proceeding, the case to be reopened would be 

that same asylum-only proceeding. Bare provides no 

compelling reason why § 1208.24(f) should not apply here 

to allow the government to reopen the asylum-only 

proceedings to terminate his grant of asylum. Therefore, 

terminating Bare’s asylum through reopening his asylumonly proceedings was not error.

Even though Bare is appropriately in asylum-only 

proceedings, he nonetheless contends that the prohibition on 

an IJ in such proceedings from considering his adjustment of 

status and waiver requests must give way to allow him to 

vindicate his eligibility to adjust his status. But not only 

would allowing the IJ to consider Bare’s request for an 

adjustment of status contradict the limitations on asylumonly proceedings in 8 C.F.R. § 1208.2(c)(3)(i), it is also 

unnecessary because he has another avenue available to seek 

an adjustment of status.

An IJ in INA § 240 removal proceedings has the 

authority to adjudicate requests for an adjustment of status, 

see 8 C.F.R. § 1240.11(a)(1)–(2), and that authority is 

exclusive, see 8 C.F.R. §§ 209.2(c), 1209.2(c). On the other 

hand, an IJ in asylum-only proceedings is prohibited from 

considering requests for an adjustment of status. See
38 BARE V. BARR

8 C.F.R. § 1208.2(c)(3)(i). Since asylum-only proceedings 

are not INA § 240 proceedings, the exclusivity provision for 

INA § 240 proceedings does not apply and the IJ is not the 

exclusive avenue for an alien to seek an adjustment of status. 

See 8 U.S.C. § 1225(a)(2) (stating that “[i]n no case may a 

stowaway be . . . eligible for a hearing under [INA § 240]”); 

8 C.F.R. §§ 209.2(c) (“If an alien has been placed in 

removal, deportation, or exclusion proceedings, the 

application [for an adjustment of status] can be filed and 

considered only in proceedings under [INA § 240].”), 

1209.2(c). As a result, an application for an adjustment of 

status is to be “filed in accordance with the form 

instructions.” 8 C.F.R. § 209.2(c). The form is I-485 and it 

is filed with the USCIS. Id. § 1209.2(c). Thus, the USCIS 

retains the authority to consider Bare’s request for an 

adjustment of status and for waiver even when he had an 

open asylum-only proceeding before an IJ. That is where 

Bare’s request should have been directed.

We note that this process causes a potential conflict 

between the applicable regulation and the instructions to the 

I-485 form. An application to the USCIS for an adjustment 

of status is to be filed “in accordance with the form 

instructions,” id. § 209.2(c), and the form instructions 

themselves are incorporated into the regulations, id.

§ 103.2(a). But the form instructs applicants with 

proceedings before an IJ to file their application with the IJ 

rather than the USCIS. See Form I-485, Instructions (“If you 

are in proceedings in Immigration Court . . . you should file 

this application with the appropriate Immigration Court.”). 

Although the form instructions have the force of regulation, 

they are instructions to applicants applying for an adjustment 

of status. As such, they are intended to help an alien with 

the practical procedures for applying, not to be a lengthy, 

legalistic explanation accounting for every possible 
BARE V. BARR 39

circumstance. It is no surprise, then, that the form 

instructions do not address the situation here given that it 

appears to be exceedingly rare, if not unique. Further, 

although form instructions can override some contrary 

regulations in 8 C.F.R. Chapter I, id. § 103.2(a)(1), the 

exclusivity provision is found in both Chapters I and V, see

id. §§ 209.2(c), 1209.2(c), and the limitations on an IJ’s 

authority in asylum-only proceedings is found in Chapter V, 

see id. § 1208.2(c)(3)(i). Therefore, the form instructions

should not be read so broadly as to create an inconsistency 

between them and the regulation—e.g., one stating apply to 

the USCIS and the other stating apply to the IJ—and, even 

if they were to, they cannot overcome the contrary 

regulations in Chapter V. Therefore, USCIS remains the 

way in which an asylee in reopened asylum-only 

proceedings is to apply for an adjustment of status despite 

any perceived form instructions to the contrary.

We also note that, by having a different decisionmaker 

for whether to grant a request for an adjustment of status and 

whether to terminate a grant of asylum, a grant of asylum 

may be terminated by an IJ prior to the USCIS’s acting on 

an adjustment of status application. Here, for example, the 

IJ declined Bare’s motion for a continuance to allow him to 

apply for an adjustment of status with the USCIS and 

terminated his grant of asylum. Unlike the Fifth Circuit, we 

have not considered whether a former asylee can apply for 

an adjustment of status, see Siwe, 742 F.3d at 612, much less 

that a former asylee who is a stowaway can apply for an 

adjustment of status. If a former asylee who is a stowaway 

could not adjust his or her status, there is a potential that an 

asylee could be denied the opportunity to adjust his or her 

status as a result of this bifurcation of authority, as the IJ 

might act faster in terminating a grant of asylum than the 

USCIS in considering whether to grant an adjustment of 
40 BARE V. BARR

status and a waiver. This is problematic because, as we 

previously determined, an asylee in reopened asylum-only 

proceedings can still apply for an adjustment of status (and 

any necessary waivers). The resolution of these issues goes 

beyond the case we have been presented. This is an issue for 

a later court to decide if Bare applies for an adjustment of 

status with the USCIS and the USCIS refuses to consider it. 

To resolve this case, it is enough to conclude that Bare met 

all of the requirements to apply for an adjustment of status, 

provided he also sought and received a waiver, and that his 

application was to be made to the USCIS, not the IJ.

PETITION FOR REVIEW IS DENIED.