October 1, 2007

The Ninth Circuit Court in California recently ruled that Conditional Parolee under INA §236(a) is ineligible for adjustment of status

On June 8, 2002, Petitioner, a native and citizen of Mexico, was apprehended along with 14 other undocumented individuals who had been smuggled into the U.S. On June 20, 2002, in an effort to secure his testimony in the criminal prosecution of the smuggler, Petitioner was issued an order of release on recognizance (Form I-220A), which stated that he was being released, or paroled, in accordance with INA §236. Petitioner was not issued an I-94. Several days after his release, Petitioner married a U.S. citizen and applied for adjustment of status. Although never called upon to testify against the smuggler, Petitioner reported to INS as required, and was released on bond. In proceedings, the immigration judge concluded that Petitioner was ineligible for adjustment of status because a conditional parolee under INA §236(a) is not a person who has been "paroled into the United States" as required under INA §245(a). The BIA affirmed, rejecting Petitioner's reliance on a 1999 INS policy memorandum as not having "the force and effect of law."

The court rejected Petitioner's argument that he was actually paroled under INA §212(d)(5)(A), noting that the warrant, the notice of custody determination and the order of release on recognizance all reference INA §236 as opposed to §212(d)(5)(A). In addition, when Petitioner was released on his own recognizance, his parole was "conditioned" on certain events, including the reporting back to INS at the conclusion of the criminal proceedings in which Petitioner was a witness. Also, Petitioner was not issued a Form I-94 which is typically given to a §212(d)(5)(A) parolee. Although 8 CFR §212.5(b)(4) authorizes parole under §212(d)(5)(A) for persons "who will be witnesses" in judicial proceedings, the court explained that the regulation is limited to "arriving aliens," and persons deemed inadmissible under INA §212(a)(6)(c) or (7) and that Petitioner falls under neither of these categories.

Turning to Petitioner's alternative argument, the court considered whether a person who is conditionally paroled under INA §236(a) is "paroled into the United States" for purposes of adjustment of status under INA §245(a). Noting that the statute and regulations do not expressly preclude conditional parolees from adjustment of status, the court examined the legislative history and purpose of the provisions. Although §245(a) did not originally reference parolees, the provision was added in 1960 as part of a joint resolution authorizing the parole of certain refugees in order "to ensure that a class of otherwise excludable aliens who were being brought to the United States for humanitarian reasons would have an opportunity to become lawful permanent residents." See 106 Cong. Rec. 15389 (1960). Therefore, Congress did not intend the amendment to benefit persons who had been taken into custody and then released on parole pending a final determination on their removability.

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