United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3726

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Monika Clifton,

Petitioner,

v.

Eric H. Holder, Jr., Attorney

General of the United States,

Respondent.

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Petition for Review of an

Order of the Board of

Immigration Appeals.

 [PUBLISHED]

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Submitted: September 22, 2009

 Filed: March 22, 2010

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Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.

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HANSEN, Circuit Judge.

Monika Clifton, a native and citizen of Bulgaria, petitions for review of the

Board of Immigration Appeals' (BIA) order denying her motion to remand to the

immigration judge (IJ) and dismissing her appeal of the IJ's denial of her motion to

reopen removal proceedings. We grant the petition for review and remand the case

to the BIA for further proceedings consistent with this opinion.
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I.

Clifton (formerly known as Monika Bakardjieva) is a native and citizen of

Bulgaria. She was admitted to the United States in September 1993 on a student visa

in order to attend Northeast Missouri State University (now Truman State University).

In 1996, she traveled to Jamaica on a spring break trip with friends. She did not take

along on the trip her original I-94 arrival and departure record or other immigration

documents. Upon returning to the United States, Clifton was paroled into the country

at St. Louis and ordered to attend a deferred inspection approximately two weeks later.

Clifton asserts that she informed her foreign-student advisor at the university of the

problem with her re-entry into the United States. After the conversation with her

advisor, Clifton assumed the advisor would resolve the situation and did not attend the

deferred inspection. Clifton acknowledges she has not subsequently been inspected

and admitted. She remains an "arriving alien."

In May 1998, Clifton discontinued her enrollment at the university. Thereafter,

she admittedly accepted unauthorized employment. In November 2003, Clifton was

apprehended and charged with violating her immigration status and undertaking

unauthorized employment. On December 4, 2003, Clifton received a notice to appear

before an immigration judge (I-862) for removal proceedings. The notice alleged that

Clifton is removable for two reasons: (1) she is an arriving immigrant not in

possession of a valid entry document, and (2) she is a nonimmigrant not in possession

of a valid nonimmigrant visa or border crossing identification card. See 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), & (B)(i)(II). An appearance date was set for March 15, 2005.

Clifton married a U.S. citizen named Steven Clifton on February 18, 2004. Her

husband filed a relative immigrant visa petition on her behalf. Clifton also filed an

application to adjust her immigration status (I-485) based on the marriage. The

relative immigrant visa petition was approved on October 29, 2004.
1

The then parallel Department of Justice and Department of Homeland Security

regulations stated that aliens in removal proceedings—like Clifton—were "ineligible

to apply for adjustment of status to that of a lawful permanent resident alien." See 8

C.F.R. §§ 245.1(c)(8), 1245.1(c)(8) (2004). The Succar court, followed by three other

circuit courts of appeals, held the regulations were contrary to 8 U.S.C. § 1255(a),

which provides that "admitted or paroled" aliens are eligible to apply for adjustment

of status. See 394 F.3d at 9-10; Scheerer v. U.S. Attorney Gen., 445 F.3d 1311, 1318

(11th Cir. 2006); Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir. 2005); Zheng v.

Gonzales, 422 F.3d 98, 119-20 (3d Cir. 2005).

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Prior to the March 15, 2005 hearing, Clifton filed a written motion in

immigration court requesting either administrative closure or continuance of the

removal proceedings. Clifton recognized that then-existing regulations, see 8 C.F.R.

§§ 245.1(c)(8), 1245.1(c)(8) (2004), explicitly prohibited her from applying for

adjustment of status in any forum because she was an arriving alien then in removal

proceedings. Nonetheless, she argued the regulations were inconsistent with statutory

law according to a recent opinion by the United States Court of Appeals for the First

Circuit. See Succar v. Ashcroft, 394 F.3d 8, 9 (1st Cir. 2005) (holding the regulations

inconsistent with 8 U.S.C. § 1255(a)).1

 Based on Succar, Clifton requested

administrative closure or continuance of the removal proceedings in order to allow the

United States Citizenship and Immigration Services (USCIS) "to process and

adjudicate [her] Application for Adjustment of Status." (J.A. at 279.)

Clifton appeared for the March 15, 2005 hearing before the IJ. Clifton renewed

her requests for administrative closure or continuance. The IJ denied closure because

the Government would not agree. The IJ also denied a continuance. The transcript

of the March 15 hearing demonstrates that the IJ thought she could not continue the

case because she would not have jurisdiction to ultimately adjudicate the request for

adjustment of status of an arriving alien in removal proceedings. As of March 15,

2005, the Eighth Circuit had not yet addressed a challenge to the regulatory bar of an

IJ's jurisdiction to adjust the status of aliens in removal proceedings. See Mouelle v.

Gonzales, 416 F.3d 923 (8th Cir. 2005) (approving the regulatory bar on July 29,
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2005), vacated, 548 U.S. 901 (2006). Clifton's case was set for a contested case

hearing on June 20, 2005.

Clifton's contested case hearing occurred on June 20, 2005. The IJ issued a

written decision and order. In the procedural and factual history section of the IJ's

decision, the IJ explained why Clifton's request for a continuance was denied at the

previous hearing. It is again apparent that the IJ rejected a continuance based on the

IJ's belief that she had no jurisdiction to adjudicate a request for adjustment of status.

Turning to the merits of the removal proceedings, the IJ found both charges of

inadmissibility were established, held Clifton was not eligible for voluntary departure,

and ordered her to be removed.

Clifton appealed to the BIA. Clifton again cited Succar and pressed her

entitlement to apply for adjustment of status. 

Before the BIA could decide the appeal, the Department of Justice (DOJ) and

the Department of Homeland Security (DHS) (both Departments of the Executive

Branch) amended their respective administrative regulations governing adjustment of

status for arriving aliens in removal proceedings. Recognizing an intercircuit conflict

regarding the validity of 8 C.F.R. §§ 245.1(c)(8) and 1245(c)(8) (2004) and desiring

"to avoid inconsistent application of the adjustment of status laws depending upon the

geographic location of the applicant," the DOJ and DHS amended their administrative

rules to allow for the adjustment of status of arriving aliens in removal proceedings.

See Eligibility of Arriving Aliens in Removal Proceedings To Apply for Adjustment

of Status and Jurisdiction To Adjudicate Applications for Adjustment of Status, 71

Fed. Reg. 27,585, 27,587 (May 12, 2006) (codified at 8 C.F.R. §§ 1, 245, 1001, 1245)

[hereinafter "Interim Rule Notice"]. The Interim Rule Notice also explained that a

second goal of the amendments was "to make clear which Departmental component

has jurisdiction to adjudicate adjustment applications for arriving aliens who have

been paroled and placed in removal proceedings." Id. Absent a narrow exception not
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applicable to this case, the 2006 amendments vested the jurisdiction to adjust the

status of arriving aliens who are in removal proceedings with USCIS, an agency

within the DHS. See id.; see also Hanggi v. Holder, 563 F.3d 378, 381 (8th Cir.

2009).

In its June 30, 2006 decision, the BIA referenced the Interim Rule Notice and

held that the amended regulations precluded the IJ or BIA from adjusting Clifton's

status. For that reason, the BIA affirmed the IJ's holding that Clifton is removable.

The BIA reversed the IJ's rejection of voluntary departure and remanded for

reconsideration of voluntary departure. The BIA's decision does not reference

Clifton's request for administrative closure or a continuance, which had been denied

by the IJ and appealed to the BIA.

In August 2006, Clifton sent a written request to Immigration and Customs

Enforcement (ICE), yet a third player and a DHS agency, asking that office's chief

counsel to exercise his prosecutorial discretion and to cease prosecuting Clifton's case

in order to allow her to apply for adjustment of status with USCIS. Also in August,

Clifton filed a motion with the IJ for a continuance. The record does not reflect a

response to either of these requests.

On October 3, 2006, Clifton's husband died of cancer.

On remand from the BIA on January 16, 2007, the IJ granted Clifton voluntary

departure. The order does not mention Clifton's then pending renewed motion for

continuance. The IJ originally required Clifton to depart by January 24, 2007, but the

departure date was subsequently extended to May 17, 2007.

As the extended deadline for her voluntary departure granted by the IJ

approached, Clifton continued to pursue her goal of legalized immigration status in

two fora. First, she made two filings with USCIS. In January 2007, Clifton filed a
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visa petition as the widow of a United States citizen who died within the past two

years (I-360). She also filed a related request for adjustment of status (I-485) with

USCIS in March 2007.

In the second forum, Clifton sought to postpone the voluntary departure granted

by the IJ. Specifically, on April 10, 2007, she filed a motion with the IJ to reopen the

removal proceedings and a motion to stay voluntary departure until her motion to

reopen was resolved. The stay was granted by the IJ, and a hearing date was set on

the motion to reopen. In support of her motion to reopen Clifton cited the Interim

Rule Notice, argued that USCIS had jurisdiction to adjudicate her request for

adjustment of status, and asked the IJ to reopen and stay the removal proceedings until

USCIS could adjudicate her request for adjustment of status. The government resisted

the motion to reopen.

The IJ denied the motion to reopen. The IJ noted that her petition as the widow

of a U.S. citizen (I-360) had not yet been approved and, without an approved I-360

petition, Clifton's status could not be adjusted. Consequently, the IJ concluded that

Clifton was not prima facie eligible for adjustment of status, and the IJ denied the

motion to reopen. Clifton appealed to the BIA.

While Clifton's appeal was pending with the BIA, the USCIS approved her

I-360 petition. On June 6, 2007, she filed another request for adjustment of status (I485) with USCIS, based on the approved I-360.

On July 9, 2007, Clifton filed a motion with the BIA to remand the case to the

IJ to admit new evidence. She wanted the USCIS notice of action (I-797) approving

the I-360 to be admitted in support of her motion to reopen.

On October 28, 2008, the BIA denied Clifton's motion to remand for admission

of new evidence and dismissed Clifton's appeal of the IJ's denial of the motion to
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reopen. The BIA reasoned: "Even assuming that the form I-360 is approved as the

respondent claims, . . . [s]ince the respondent is an arriving alien and does not come

within the narrow exception which would permit an Immigration Judge to consider

an arriving alien's application for adjustment of status, remand is not warranted in this

case." (J.A. at 3.) The BIA also declined to reopen proceedings sua sponte.

Clifton then petitioned this court for review of the BIA's decision. She

subsequently requested a stay of removal. We granted the stay pending our final

resolution of the case. 

II.

We review both the denial of a motion to remand and the denial of a motion to

reopen for abuse of discretion. Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005)

(remand); Guerra-Soto v. Ashcroft, 397 F.3d 637, 640 (8th Cir. 2005) (reopen). "The

BIA abuses its discretion if its decision is without rational explanation, departs from

established policies, invidiously discriminates against a particular race or group, or

where the agency fails to consider all factors presented by the alien or distorts

important aspects of the claim." Vargas v. Holder, 567 F.3d 387, 391 (8th Cir. 2009)

(quotation marks omitted). The United States Supreme Court very recently reaffirmed

the federal courts' jurisdiction to review motions to reopen as well as the

corresponding "deferential, abuse of discretion standard of review." Kucana v.

Holder, 130 S. Ct. 827, 840 (2010). 

III.

The October 2008 BIA order from which Clifton petitions for review is a twopage per curiam order. The BIA denied the motion to remand, declined to reopen the

proceedings sua sponte, and dismissed the appeal based on the lone rationale that "the

respondent is an arriving alien and does not come within the narrow exception which
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would permit an Immigration Judge to consider an arriving alien's application for

adjustment of status." (J.A. at 3.) Clifton argues that rationale "ignore[s] the fact that

the movant is not asking the BIA or an IJ to decide the adjustment application but only

seek[s] to stay proceedings while USCIS exercises its jurisdiction over the adjustment

application." (Appellant's Br. at 20.) We agree that the BIA's analysis distorted an

important aspect of Clifton's claim and consequently departed from then established

policies for evaluating the requested relief.

In order to hold that the BIA distorted Clifton's claim and departed from

established policy, we must of course understand the forms of relief requested and the

related policies. As the deadline for voluntary departure approached, Clifton

petitioned USCIS for a visa as the widow of a United States citizen. Clifton alerted

the IJ to her new filing with USCIS and moved the IJ to reopen her removal

proceedings in light of the new information. The Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009-546, amended the

Immigration and Nationality Act (INA or Act), 66 Stat. 166, 8 U.S.C. §1101 et seq.,

and "for the first time codified certain rules, earlier prescribed by the Attorney

General, governing the reopening process." Kucana, 130 S. Ct. At 831. "The

amended Act instructs that reopening motions 'shall state the new facts that will be

proven at a hearing to be held if the motion is granted, and shall be supported by

affidavits or other evidentiary material.'" Id. (quoting 8 U.S.C. § 1229a(c)(7)(B)).

The statute does not otherwise state a standard for evaluating motions to reopen, but

administrative regulations fill the statutory gap. The regulations allow an immigration

judge "upon his or her own motion at any time, or upon motion of the Service or the

alien, [to] reopen or reconsider any case in which he or she has made a decision,

unless jurisdiction is vested with the [BIA]." 8 C.F.R. § 1003.23(b)(1). Paralleling

the statute, the regulation requires that such motions "shall state the new facts that will

be proven at a hearing to be held if the motion is granted and shall be supported by

affidavits and other evidentiary material." 8 C.F.R. § 1003.23(b)(3). Additionally,

"[a] motion to reopen will not be granted unless the Immigration Judge is satisfied that
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evidence sought to be offered is material and was not available and could not have

been discovered or presented at the former hearing." Id.

In rejecting Clifton's motion to reopen, the IJ had noted that Clifton's visa

petition as a widow was not yet approved and that she had "not established that she

is prima facie eligible for the underlying relief she seeks of adjustment of status."

(J.A. at 92.) Clifton appealed that ruling to the BIA. In the narrative explanation of

her appeal, Clifton argued that the IJ abused its discretion by not reopening the case

to consider the "imminent approval of her I-360." (Id. at 66.) In fact, the I-360 was

approved shortly thereafter. Later, Clifton filed a brief with the BIA in support of her

appeal and included in the brief a motion to remand the case to the IJ for consideration

of the approved I-360.

Consequently, in addition to reviewing the IJ's denial of a motion to reopen, the

BIA confronted a motion to remand. The BIA's authority to act on a motion to

remand is not expressed in any statute, but can be found in administrative regulations.

Importantly, "[t]he BIA's function is to review the record, not create it." Berte, 396

F.3d at 997; see also 8 C.F.R. § 1003.1(d)(3)(iv) ("[T]he [BIA] will not engage in

factfinding in the course of deciding appeals."). Thus, "[a] party asserting that the

Board cannot properly resolve an appeal without further factfinding must file a motion

for remand," and "[i]f further factfinding is needed in a particular case, the Board may

remand the proceeding to the immigration judge . . . ." 8 C.F.R. § 1003.1(d)(3)(iv).

We have said, "the BIA will remand only if the evidence is of such a nature that the

Board is satisfied that if proceedings before the IJ were reopened, with all the

attendant delays, the new evidence would likely change the result in the case." Berte,

396 F.3d at 997 (internal quotations and marks omitted).

As can be seen, evaluating motions to reopen and evaluating motions to remand

can be quite similar endeavors. In addition, the administrative rules allow an alien to

move the BIA to reopen proceedings. 8 C.F.R. § 1003.2. In such cases, "[t]he
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The regulations allow a motion to the BIA to reopen an IJ's decision to be

considered as a motion to remand, see 8 C.F.R. § 1003.2(c)(4), while the BIA's

decisions sometimes interpret a motion to remand under standards established for

evaluating motions to reopen. See Matter of Coelho, 20 I. & N. Dec. at 471.

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decision to grant or deny a motion to reopen or reconsider is within the discretion of

the Board . . . ." 8 C.F.R. § 1003.2(a). "A motion to reopen proceedings shall state

the new facts that will be proven at a hearing to be held if the motion is granted and

shall be supported by affidavits or other evidentiary material." 8 C.F.R. §

1003.2(c)(1). "A motion to reopen proceedings shall not be granted unless it appears

to the Board that evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing . . . ." Id. "A

motion to reopen a decision rendered by an Immigration Judge . . . that is filed while

an appeal is pending before the Board, may be deemed a motion to remand for further

proceedings before the Immigration Judge . . . . Such motion may be consolidated

with, and considered by the Board in connection with, the appeal to the Board." 8

C.F.R. § 1003.2(c)(4). In this case, the BIA was not considering a motion to reopen

made to it in the first instance. Instead, the BIA was considering a petition for review

of a motion to reopen made to, and denied by, the IJ.

Nonetheless, the BIA has interpreted the regulations to require that "where a

motion to remand is really in the nature of a motion to reopen or a motion to

reconsider, it must comply with the substantive requirements for such motions."

Matter of Coelho, 20 I. & N. Dec. at 471. "[T]he motion to remand is in the nature of

a motion to reopen [when] the respondent requests additional proceedings to present

evidence . . . which was not available during the initial proceedings." Id. While the

administrative regulations and the BIA's interpretation of those regulations are a bit

circular,2

 the standard for evaluating Clifton's motion to remand originating with the

BIA is nonetheless clear. Further, it is clear the applicable standard highly resembles

the standard the IJ should have used to evaluate the motion to reopen. Additionally,

the IJ and the BIA relied on one—and the same—rationale in rejecting all of Clifton's
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requests for relief. The IJ and BIA rejected Clifton's requests because neither body

possessed jurisdiction to adjudicate the ultimate relief sought by Clifton—adjustment

of status. Consequently, Clifton's petition for review in this court can be resolved by

answering one question. Does the BIA abuse its discretion by refusing to remand and

reopen removal proceedings solely on the ground that the BIA lacks jurisdiction over

an application for adjustment of status that has been filed with and pends before

USCIS?

"[A] rote recital of a jurisdictional statement—even if technically

accurate—does not adequately discharge the BIA's duty . . . ." Ni v. BIA, 520 F.3d

125, 129-30 (2d Cir. 2008). As our frequently repeated standard of review suggests,

the BIA must "consider all factors presented by the alien" in light of "established

policies" relevant to the alien's claim, and the BIA must provide a "rational

explanation" for its decision. See Vargas, 567 F.3d at 391. The record demonstrates

Clifton's goal was to reopen and continue her removal proceedings so that she was not

subject to an order of removal while she pursued a prima facie valid adjustment of

status application with the USCIS. The IJ has discretionary authority to continue

removal proceedings where the alien presents a prima facie case for adjustment of

status with the USCIS. See 8 C.F.R. § 1003.29 ("The immigration Judge may grant

a motion for continuance for good cause shown."); Matter of Hashmi, 24 I. & N. Dec.

785, 788 (BIA 2009). To the extent that the BIA interpreted Clifton's motion to

remand as an attempt to have the IJ decide her adjustment of status application, the

BIA distorted an important aspect of Clifton's claim. See Vargas, 567 F.3d at 391

("The BIA abuses its discretion if its decision . . . distorts important aspects of the

claim."). Recognizing that the BIA does not create the record in these cases, Clifton

reasonably sought remand not to request that the IJ adjust her status but to bring the

newly approved I-360 to the IJ's attention in the hope that the IJ would favorably

exercise the IJ's discretion to continue the case while USCIS adjudicated Clifton's

prima facie valid application for adjustment of status. 
3

The granting of a motion to reopen is to be distinguished from the mere filing

of a motion to reopen. "[T]he filing of a motion to reopen . . . shall not stay the

execution of any decision made in the case." 8 C.F.R. § 1003.2(f).

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The Attorney General attempts to reframe the relief Clifton is seeking as an

indefinite "stay" of the execution of a final order of removal. Indeed, the BIA recently

interpreted a motion to reopen that was filed with the goal of allowing USCIS to

adjust status to be a motion to "stay" the execution of a final order of removal. See

Matter of Yauri, 25 I. & N. Dec. 103, 109-20 (BIA 2009). The BIA held that it

possessed no jurisdiction over such motions. Id. As outlined above, the BIA does

have jurisdiction to remand as well as jurisdiction to reopen, and the IJ has jurisdiction

to reopen and to continue removal proceedings for good cause. Once a case is

reopened, there is no executable final order of removal.3

 Consequently, when

reopening is granted there is no final order of removal that must be "stayed" while

USCIS adjudicates a pending application for adjustment of status. Nor do we think

that such a "stay" would be "indefinite." While the exact ending date of such a "stay"

(if it be one) is unknown, it will end when USCIS adjudicates the pending application

for adjustment of status; consequently, it is not indefinite in the sense of being open

ended and without a terminating event. Thus, this case does not concern a motion to

"indefinitely 'stay'" a final order of removal. Instead, Clifton asked the BIA to remand

the case so that evidence could be introduced to the IJ that may affect the IJ's analysis

of Clifton's motions to reopen and continue the case.

The BIA's rationale for rejecting the motion to remand—a lack of jurisdiction

to adjust Clifton's status—was not relevant to the agency's then established analysis

of motions to remand. Typically, such motions are only granted where the alien

presents new evidence that is "of such a nature that the Board is satisfied that if

proceedings before the IJ were reopened, with all the attendant delays, the new

evidence would likely change the result in the case." Berte, 396 F.3d at 997 (internal

quotations and marks omitted). Here, the BIA did not consider how the new evidence

might affect the IJ's decision to continue the case. In so doing, the BIA departed from
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its then established policy for evaluating motions to remand. See Vargas, 567 F.3d

at 391 ("The BIA abuses its discretion if its decision . . . departs from established

policies . . . .").

We do not suggest that, on remand, the BIA must remand or reopen Clifton's

case. Likewise, we do not address whether the United States Code or the

corresponding administrative regulations require that removal proceedings be

continued while an alien pursues a prima facie valid adjustment application with

USCIS. Although other circuits have taken up such questions on petitions for review

of BIA action on motions to reopen, compare Kalilu v. Mukasey, 548 F.3d 1215, 1218

(9th Cir. 2008) (holding Interim Rule Notice "rendered worthless" when BIA denies

motion to continue removal proceedings to allow USCIS to adjudicate application for

adjustment of status); with Scheerer v. U.S. Attorney Gen., 513 F.3d 1244, 1255 (11th

Cir.) (holding no reopening or reconsideration necessary where adjustment of status

application could not be adjudicated in removal proceedings), cert. denied, 129 S. Ct.

146 (2008), we need not address those questions because the case before us can be

dealt with on narrower grounds, see Zine v. Mukasey, 517 F.3d 535, 539-40 (8th Cir.

2008) (avoiding an issue of statutory interpretation of first impression where case

could be resolved on narrower grounds). Instead, the case will be remanded to the

BIA for consideration of whether Clifton's motion to remand warrants a favorable

exercise of the BIA's discretion. See Ni, 520 F.3d at 131. Regardless of how the BIA

exercises its discretion, "it must provide adequate reasons for doing so, thereby

furnishing this Court with a meaningful opportunity to review . . . ." Id.

IV.

Accordingly, we grant the petition for review and remand the case to the BIA

for further proceedings consistent with this opinion.

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