Petition for Review of an Order of the Board of Immigration Appeals.
The opinion of the court was delivered by: Hansen, Circuit Judge
Submitted: September 22, 2009
Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
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.
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.
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)).*fn1 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, 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 ...