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Arriving Noncitizen Adjustment of Status – No Authority for the BIA to Reopen Old Exclusion, Deportation, or Removal Cases

Nov 4, 2009 | motions to reopen

On October 28, 2009, the Board of Immigration Appeals (“BIA”) issued a precedent decision in Matter of Yauri, 25 I. & N. Dec. 103 (BIA 2009).  Our colleague, Nadine Wettstein, wrote a great article on this case on the website for Immigration Impact, that we thought was important to share with our readers.

This new BIA decision allows U.S. Immigration and Customs Enforcement to deport people based upon old exclusion, deportation, or removal orders even when a legitimate application for adjustment of status is pending before the U.S. Citizenship and Immigration Services.  The BIA concluded that because arriving noncitizens can only adjust status before the USCIS, and because the application would be pending with the USCIS and not the BIA, there is no jurisdiction for the BIA to reopen an old exclusion, deportation, or removal case.

Interesting, in Matter of Yauri, the USCIS had already approved the adjustment of status application before the BIA issued the precedent decision on October 28, 2009.  So the BIA could have easily just not addressed this issue altogether.  However, because it did and because of what it said, other people risk deportation.

Ruchi Thaker