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Reopening Proceedings in Order to Apply for Adjustment

When an Immigration Judge (IJ) issues a removal order, the order becomes final when the affected alien does not file an appeal with the Board of Immigration Appeals (BIA). If the alien files an appeal or petition for review, the order becomes final when the appeal or petition is denied. Sometimes, a final removal order is not really final. An alien may file a motion to reopen (MTR) with the Immigration Judge or the Board of Immigration Appeals if he has new and material evidence that was not available and could not have been discovered or presented at an earlier stage in the proceedings.

Under 8 CFR 1003.2(c)(1), an motion to reopen may be filed for the purpose of submitting an application for relief if the alien did not have the opportunity to apply for such relief during his previous hearings or the relief is based on circumstances that have arisen subsequent to the previous hearings.

For example, in January 2010, the Immigration Judge issued a removal order against X after the Immigration Judge denied his asylum application. X filed an appeal with the Board of Immigration Appeals. In January 2011, the Board of Immigration Appeals dismissed X’s appeal. In February 2011, X married his US citizen (USC) fiancée. In March 2011, X filed a motion to reopen with the Board of Immigration Appeals, explaining that his USC wife had filed an I-130 petition for him and that he was eligible for adjustment of status. The Board of Immigration Appeals may consider this motion to reopen because it was filed for the purpose of allowing X an opportunity to apply for adjustment of status, which is a form of discretionary relief, and X’s eligibility for adjustment is based on his marriage to his USC wife, which occurred after the conclusion of his removal hearings in January 2010.

An alien in removal proceedings must, as a general rule, file his adjustment application with the Immigration Judge. An alien who is not in removal proceedings must file his adjustment application with USCIS. However, there is an exception to this rule. Under 8 CFR 1245.2(a)(1), an alien in removal proceedings who is classified as an arriving alien must file his adjustment application with USCIS. The Immigration Judge has no jurisdiction over the adjustment application of an arriving alien in proceedings, except under limited circumstances.

Under 8 CFR 1.2, an arriving alien means, among other things, an applicant for admission who is coming or attempting to come into the US at a port-of-entry. An arriving alien remains an arriving alien even if he is paroled into the US and even after such parole is terminated or revoked.

Here’s a problem. If an arriving alien, who was in removal proceedings and who has a final removal order, is now eligible for adjustment of status, how can he apply for adjustment?

First, we should remember that a final removal order does not disqualify an alien from adjustment. Under INA 212(a)(9)(A), a final removal order would make an alien inadmissible and thus ineligible for adjustment if the order was executed, i.e. if the alien was actually removed from the US. However, under INA 240(b)(7), an alien with a final removal order that is entered in absentia due to the alien’s failure to attend his hearings is not be eligible for adjustment for a period of 10 years after the date of the entry of the order. An in absentia removal order would bar adjustment even if it has not yet been executed.

Contact our experienced immigration lawyers in New York City today at 718-407-0871 or online at for creative solutions to our client’s complex immigration problems.

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