FOR PUBLICATION



### U NITED STATES COURT OF APPEALS
F OR THE NINTH CIRCUIT

I BRAHIM F ARHAB B ARE
, Petitioner

,

v.

W ILLIAM P. B ARR , Attorney General, Respondent. No. 17

- 73269

Agency No.
A073

- 436

- 746

OPINION

O n Petition for Review of an Order of the
B oard of Immigration Appeals

A rgued and Submitted August 7, 2019
S an Francisco, California

F iled September 16, 2020

B efore: Diarmuid F. O ’ Scannlain, Eugene E. Siler, * and Jacqueline H. Nguyen, Circuit Judges.

O pinion 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 B ARE V

. B ARR

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 o f 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 partic ularly 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.B ARE V

. B ARR 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 rejecte d 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 off ense” 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 pa rticularly 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

poss ession 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 “asy lum

- 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 Nationa lity 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 ret ains 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 further4 B ARE V

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explained that regulations allow asylum to be ter minated 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 asylum

only 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 adjus tment, 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 Petitio ner.

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.; f or Respondent.B ARE V

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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” proceedin gs 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 firear m 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 statu s. 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 Tortu re (“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 B ARE V

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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 const itutes 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
B are’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 proceeding s. 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 issueB ARE V

. B ARR 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 qui et, 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 chil dren 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 B ARE V

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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 Departm ent 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

r equested 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.B ARE V

. B ARR 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 ha ve 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 Ci r. 2004). But this does not require the issue to have been raised in a precise form during the10 B ARE V

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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 d o 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 o n 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 c uriam).

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 ar e 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

cons idering 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.B ARE V

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The government also contends that Bare’s argument was too general to p ut 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 wh ere 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 m erely 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 an d 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.’” Flores

Vega , 932 F.3 d 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 B ARE V

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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, national ity, 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 p articularly 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 throug h 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) “theB ARE V

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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
brin g 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, “t he 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 seriou s 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 im permissible 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
fac tors. Because the BIA adopted and affirmed the IJ’s14 B ARE V

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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 discusse d 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 poten tially 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 particul arly 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 5 45 (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 o f 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). AlthoughB ARE V

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the IJ did not analyze the elements o f 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 obta ined “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. Ben amor , 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
elemen ts 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 seriou s, 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 t he 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

- M

factor 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 “made16 B ARE V

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no referenc e 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 off ense. 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. Therefor e, 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.B ARE V

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In considering the elements of an off ense, 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 wo uld 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, Valerio

Ramirez 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

t reating 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 senten ce 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 a18 B ARE V

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firearm is an aggravated felony, s ee 8 U.S.C. § 1101(a)(43)(E)(ii), we would expect it to fall tow ard 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 possessio n 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, concl ude 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 thr ee 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

- rea ching 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 alsoB ARE V

. B ARR 19

Anaya

- Ortiz , 594 F.3d at 678. “[N]othing in the langu age 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 crimina l 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, i t 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 pawnsho p 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 rel ating 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 co nviction 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 wa s 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

ta mpering included “violently dismembering and concealing his victim”).20 B ARE V

. B ARR

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 s entencing 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 h is 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

o ther 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 consider ed 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 theB ARE V

. B ARR 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 in deed 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 i n 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 adjustme nt 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 gra nt 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 pr oper, 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 proceedings22 B ARE V

. B ARR

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 fir earm 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 purp oses, 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 requiremen t. 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 r emained 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).B ARE V

. B ARR 23

that an alien whose asylum has been te rminated 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 wha t 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 gr ant 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 con struction 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 B ARE V

. B ARR

§ 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 ap plicable dictionary definition of “grant” means to “give, bestow, [or] confer.” Grant

, Merriam

Webster Unabridged Dictionary , https://unabridged.merriam

webster.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 al ien 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 gra nted 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 permanen t 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,B ARE V

. B ARR 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 inte nded 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. Alt hough 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 pe rmanent 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 B ARE V

. B ARR

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 s tatus “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 a n 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 perman ent resident] discards his old asylee status.” Id.B ARE V

. B ARR 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 conf irms 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 stow away 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) (s ame). 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 for28 B ARE V

. B ARR

adjustment.” Id. § 1159(b)(5). The statute also includes a waiver provision which allows the DHS Secretary or Attorney General to waive m ost 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) whi ch 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 ca tegories 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 stowa way 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 i nadmissibility 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 con sistent 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 beB ARE V

. B ARR 29

included in § 1159(c)’s list of grounds of inadmissib ility 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 b een 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 .

. . t he 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 partic ipated 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 Unit ed 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

p erforming 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 inadmissibili ty 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 B ARE V

. B ARR

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 co nsular 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 t he 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 asylu m 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 believi ng 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 an y 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 I llegal Immigration Reform a nd Immigrant Responsibility Act o f
1996 , Pub. L. No. 104

- 208, div. C, § 604, 110 Stat. 3009, 3009

- 690 to

- 6 94. 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 w aiver 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 lat er 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 grantedB ARE V

. B ARR 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 g ranted 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 persuasi ve. 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 undermi nes 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 exis ted prior to their grant of asylum

— but who could not adjust their status).32 B ARE V

. B ARR

status. In th e 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
d efinition 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 stowawa ys 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 providedB ARE V

. B ARR 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 adjudica ting 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 ad justment 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) tha t 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 ‘ a ny 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,
Co ngress 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 wai ver).34 B ARE V

. B ARR

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” rath er 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 ter minated 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 ex plains 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 alsoB ARE V

. B ARR 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 h ave 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). H owever, “[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

s cope 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 B ARE V

. B ARR

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 n otice 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 “applican t[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
State s 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 admis sion.” So, § 1208.24(g)B ARE V

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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 statu s 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 asylum

only proceedings was not error.

Even though Bare is appropriately in asylum

- only proceedings, he nonetheless contends that the proh ibition 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 adjustmen t of status contradict the limitations on asylum

only 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 pr ohibited from considering requests for an adjustment of status. See38 B ARE V

. B ARR

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
exclusiv e 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
inst ructions.” 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 proceedi ng 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 stat us 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 applica tion 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 regul ation, 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 possibleB ARE V

. B ARR 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. § 1 03.2(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 g rant 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, muc h 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 a s 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 of40 B ARE V

. B ARR

status and a waiver. This is problematic because, as we previously determined, an asyl ee 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 a n 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.