Alien's Status During Appeal Of I-485

by Joseph Whalen

The title of this essay is a bit misleading because there is NO APPEAL for the vast majority of adjustment applicants. I chose to use the concept of an "Appeal of an I-485" because so many people seek information on that topic and it seemed like a good term for internet searches. For the most part, the aliens are in limbo after USCIS' or an IJ's denial of adjustment unless they continue proceedings and get a stay or they have retained some other status (student, TPS, or other non-immigrant classification).

USCIS and IJ's[1] Share Original Adjustment Jurisdiction

Over half of the slightly more than one-million new immigrants to the U.S. each year already live here and gain LPR status through adjustment of status. The remainder obtain immigrant visas issued by the State Department abroad. There are two venues for filing an I-485 in the first instance. One may file an I-485 as an affirmative request for a benefit by submitting the form with fee to USCIS. This is the way that the vast majority of I-485s are filed. If an applicant is first placed in Removal Proceedings, then an affirmative request may be made to the IJ as a defensive move. Sometimes the IJ will close or terminate Removal Proceedings and make the alien file an I-485 with USCIS instead and this seems to be the growing trend and preferred approach. If someone appears prima facie eligible to adjust status based on an approved or likely to be approved immigrant petition, it is more cost effective and administratively efficient to make the alien file the affirmative benefits request with the benefits granting agency than with the Immigration Court.

The Immigration Judge's Specific Jurisdiction

There are however, certain forms of relief that only an IJ has the legal authority to grant. In those instances, the I-485 must be submitted to the IJ one way or another. While an IJ may accept an I-485 affirmatively in the first instance, few are actually filed in that manner. The majority of the I-485s that are decided by an IJ (or the BIA on appeal from an IJ) are actually I-485s that were already denied by USCIS. In these instances, the I-485 is being "renewed" before the IJ.

The IJ does NOT exist within the same Agency or even the same Department as USCIS, therefore, the IJ is not precisely performing an "Agency Review" as contemplated by the Administrative Procedures Act (APA). See especially 5 USC §§ 554-557. The IJ is having a "fresh look" at the alien's eligibility. While the IJ may and generally must consider the entire administrative record of proceeding [referred to as either the: 1.) Administrative Record (A.R.) or; 2.) Record of Proceeding (ROP)], (s)he is not bound by the findings of fact or law of the USCIS Adjudicator who acted in the name of a particular "Director "[2] and is free to start from scratch.

On the flipside of this equation, AAO has determined that in the appropriate contexts where DHS/USCIS has sole and/or original jurisdiction, it is not bound by the finding of fact or law of the IJ.[3] This last is especially the cases involving nationality or citizenship claims. The IJ may administratively close or terminate Removal Proceedings when DHS (ICE or CBP) fails to meets its basic burden of proof (to the clear and convincing standard of proof) as to the respondent's alienage in the face of a possible claim to citizenship that might be true if fully developed. In such a case, the IJ cannot affirmatively recognize the claimant as a citizen but may terminate the Removal Proceedings pending definitive resolution of the claim by USCIS and potentially AAO or even the U.S. District Court or Circuit Court of Appeals. When an IJ does NOT credit a citizenship claim, such claim will first be reviewed by the BIA and then may be raised directly to the Circuit Court of Appeals. Anyway, getting back to the I-485, there are certain forms of "relief from removal" that ONLY an IJ can grant. One of them is cancellation of removal and adjustment of status [see INA § 240A].

BIA Appellate Jurisdiction Over IJs Denial of Adjustment

The appellate body within EOIR is the BIA. This structure allows for an appeal to the BIA from an IJ's denial of adjustment of status whether that denial is from an original or renewed adjustment application. The BIA also has specifically delegated appellate authority over most family-based immigrant petitions, which are within the sole original jurisdiction of USCIS. Specifically, these are the family based requests via USCIS Form I-130, Petition for Alien Relative. The I-130 is limited to most immediate relative and preference family classifications. The division of appellate authority was originally established when the A.G. was in charge of the now defunct INS. The AG further divided appellate authority by regulation when the EOIR was established in 1983. The BIA had been a quasi-autonomous arm of INS from 1940 when it was transferred from the authority of the Secretary of Labor to the A.G until 1983 when EOIR was established. Under the Homeland Security Act of 2002 (HSA), abolished INS and created DHS, it also affirmatively recognized and established EOIR within DOJ by statute. HSA affirmatively retained all existing appellate authorities which had been established by prior regulation except as had been affirmatively shifted elsewhere in the statute. Certain statutory authority shifted to the comparable newly established inheritors and/or successors within the new or altered departments and agencies. The aftermath is still being sorted out a decade later.

AAO Appellate Jurisdiction Over Denial of Adjustment

Certain "family" classifications are filed on other forms instead of the I-130 and are appealable to AAO, such classifications include VAWA claims and orphan petitions. Denial of these may be appealed to the AAO in the first instance. There are other obscure situation where the adjustment applications may be appealed to AAO in the first instance. One of the most obscure involves a concurrently filed I-130 for a spouse when the "adjustment" is denied solely for failure to prove the bona fides of the marriage. I find this to be complicate and unclear. On the one hand, the I-130 is really what is being denied for lack of a bona fide marriage but the regulation seems to vest the appellate review with AAO. This is in conflict with BIA's authority over I-130s. This is a messy area that is deserving of a joint rulemaking between DOJ/EOIR and DHS/USCIS.

AAO does have very clear appellate authority over certain other adjustments. Legalization (old and newer versions), Cuban Adjustment Act, Section 13 Diplomats, NACARA?, Indochinese (I am not sure about Lautenberg Amendment cases), and certain Class Action Settlement Agreements (CSS, ABC, etc...) vest either INS or USCIS and thereby AAO with original appellate jurisdiction.

AAO Jurisdiction by Certification

One old INS regulation that still gets plenty of use by USCIS is the one that allows any decision to be "certified" to AAO for review of the intended or recommended decision of the official below. See 8 CFR § 13.4. This catch-all allows for the Agency Head or any of the specifically delegated Officials to "certify" not only individual decisions bit "classes of decisions". I don't think USCIS has used this authority as much as it probably should. I feel that certain specific types of cases that meet specific criteria should be automatically certified to AAO for review. AAO has appellate authority over all employment-based immigrant petitions or waiver applications, and many involve an adjustment application. However, AAO does not have direct review authority over the I-485 BUT when an associated petition or waiver application is dispositive of the outcome for the adjustment, then such denied I-485s are routinely reopened and reconsidered sua sponte as a matter of routine, and if otherwise eligible, they are usually granted. This is not a right and it must remain that way. Sua sponte authority cannot be mandated and cannot be reviewed. To say otherwise makes it NOT sua sponte at all.


Aside from the few oddball situations already mentioned, the vast majority of adjustment (I-485) denials have no appeal rights. This is so because adjustment itself is a discretionary decision in the vast majority of cases. A rather ubiquitous blurb found d in many AAO decisions sums up the current situation as follows.
The granting of appeal rights has a "substantive legal effect" because it is creating a new administrative "right," and it involves an economic interest (the fee and costs). "If a rule creates rights, assigns duties, or imposes obligations, the basic tenor of which is not already outlined in the law itself, then it is substantive." La Casa Del Convaleciente v. Sullivan, 965 F.2d 1175, 1178 (1st Cir. 1992) All substantive or legislative rule making requires notice and comment in the Federal Register.
While I am not advocating the creation of appeal rights, I feel that the general AAO Reform Rule which is now six months overdue should make some clarifications on this and related topics.

That's my two-cents, for now.

1Immigration Judges (IJs) preside over Immigration Courts administered by the Department of Justice's Executive Office of Immigration Review (EOIR). The Board of Immigration Appeals (BIA or Board) is the appellate body for EOIR exercising the authority of the Attorney General (A.G.) and often issues Precedent Decisions on immigration law interpretation. USCIS contains DHS' principal appellate body known as the Administrative Appeals Office (AAO). There are smaller, more obscure, narrowly limited, and less well-known officials and groups that also issue certain appellate decisions within DHS. The biggest other such DHS appellate body is within CBP and really deals with Customs rather than Immigration matters.

2 These decisions are issued in the name of the officials known as Service Center, Field Office, and District Directors.

3 would say also the AAO is not necessarily bound by BIA decisions in certain circumstances or on certain issues UNLESS that Precedent Decision is affirmatively endorsed or adopted by the A.G. as a matter of law which is clearly and affirmatively stated as binding on the Secretary of Homeland Security as per the INA § 103(a)(1) proviso language.

About The Author

Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.