DEFINITION OF ARRIVING ALIEN

The regulations define “arriving alien” at 8 CFR §1001.1(q):

The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien’s departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act.

See 8 C.F.R. §§ 1.2, 1001.1(q)

Arriving Alien vs. Applicant for Admission

While the term “applicant for admission” is not defined in the Immigration and Nationality Act (INA), the statute broadly identifies those who fall within the term’s parameters as any noncitizen who:

is present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including a[] [noncitizen] who is brought to the United States after having been interdicted in international or United States waters). See 8 U.S.C. § 1225(a)(1); see also 8 C.F.R. § 235.1(f)(2) (discussing noncitizens present without admission or parole and those who enter without inspection), (f)(3) (explaining that noncitizens interdicted at sea are applicants for admission); but see 8 C.F.R. § 235.1(f)(4) (clarifying that a stowaway is not an applicant for admission).

As such, someone classified as an “arriving [noncitizen]” also is an applicant for admission. However, the latter category is broader than the former so not all applicants for admission are arriving noncitizens. That is, while individuals who enter the United States without inspection are considered applicants for admission, they are not arriving noncitizens as they did not seek admission at a port-of-entry. A noncitizen who was admitted after inspection is neither an applicant for admission nor an arriving noncitizen, even if that person subsequently falls out of status.

Arriving Aliens in Removal Proceedings

§ 1240.8 Burdens of proof in removal proceedings.

(b) Arriving aliens. In proceedings commenced upon a respondent’s arrival in the United States or after the revocation or expiration of parole, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged.

Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a credible fear determination, and if no credible fear, until removed. See INA § 235(b)(1)(B)(i)(IV). Generally, arriving aliens placed in 240 proceedings, shall also be detained. See INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3.

Mandatory Detention

Arriving aliens in expedited removal proceedings are subject to mandatory detention, pending a credible
fear determination, and if no credible fear, until removed. INA § 235(b)(1)(B)(i)(IV).

Generally, arriving aliens placed in 240 proceedings, shall also be detained. INA § 235(b)(2)(A). An alien “shall be detained pending determination and removal” while inadmissibility is being considered under 8 C.F.R. § 235.3.

ARRIVING ALIEN CASE LAW

Failure to check the box indicating the respondent is an arriving alien is not grounds for termination of proceedings. Matter of Jonathan Said HERRERA-VASQUEZ, 27 I&N Dec. 825 (BIA 2020)

An alien that is transferred from expedited removal proceedings to full removal proceeding after establishing a credible fear, remains ineligible for bond. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019). Matter of M-S- overrules overruled Matter of X-K-, 23 I&N Dec. 731 (BIA 2005).

Arriving Aliens and Adjustment of Status

The regulations detail which agency (USCIS or EOIR) has jurisdiction over an adjustment application filed by an arriving noncitizen who is in removal proceedings. With respect to USCIS, 8 C.F.R. § 245.2(a)(1) specifies that it has jurisdiction over the adjustment application of any noncitizen “unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. § 1245.2(a)(1).” Thus, USCIS has jurisdiction over all adjustment applications except those over which an immigration judge has jurisdiction.

In turn, 8 C.F.R. § 1245.2(a)(1) states that an immigration judge does not have jurisdiction over an adjustment application of an “arriving [noncitizen]” in removal proceedings, with one exception. Under this exception, an immigration judge has jurisdiction over the adjustment application of an arriving noncitizen in removal proceedings if:

• the individual properly filed an adjustment application with USCIS while in the United
  States;
• the individual “departed from and returned to the United States pursuant to a grant of
  advance parole to pursue the previously filed” adjustment application;
  
• the adjustment application “was denied by USCIS;” and
  
• DHS placed the parolee in proceedings “either upon the [individual’s] return to the
  United States pursuant to the advance parole or after USCIS denied the [adjustment]
  application.” See 8 C.F.R. § 1245.2(a)(1)(ii).

Does USCIS have jurisdiction to decide an adjustment application if the arriving noncitizen is under a final order of removal?

Yes, USCIS has jurisdiction over the adjustment application of an arriving noncitizen even when a removal order has become administratively final, as long as the order has not been executed— that is, as long as the individual has not departed, whether voluntarily or not, after the removal order was issued. See 8 U.S.C. § 1101(g) (specifying that a noncitizen who departs the United States while under an order of removal “shall be considered to have been deported or removed”).

Under 8 U.S.C. § 1255(a), a noncitizen must be admissible to the United States to adjust status.
Significantly, as explained in a USCIS memorandum, “[t]he removal order, itself, does not make
the [noncitizen] inadmissible until it is executed.”20 Thus the removal order is not a bar to
adjustment. However, practitioners still must consider whether the underlying ground upon
which the removal order is based renders the noncitizen inadmissible and therefore ineligible for
adjustment and, if it does, whether a waiver is available. For example, where the removal order is
based on 8 U.S.C. § 1182(a)(7)—the inadmissibility ground for individuals who did not have a
valid visa or other entry document at the time of admission—the adjustment itself will cure this
inadmissiblity. In Matter of C-H-, 9 I&N Dec. 265 (Reg. Comm’r 1961), the noncitizen was
found inadmissible and ordered excluded because she was not in possession of a valid immigrant
visa. Before the exclusion order was executed, she applied for adjustment of status with the
former INS. In a precedent decision, the Regional Commissioner held that the exclusion order
did not render her ineligible for adjustment. Id. at 266. Although she was inadmissible for lack of
a valid visa at the time the exclusion order was issued, she subsequently became eligible for a
visa (the basis for her adjustment application) and thus was no longer inadmissible on this
ground. The reasoning of Matter of C-H- is equally applicable to a case involving a final order of
removal rather than exclusion.

However, a removal order issued in absentia will render the noncitizen ineligible for
adjustment, unless the order was issued more than ten years ago. An in absentia order—if issued
with proper notice—carries a ten-year bar to adjustment. See 8 U.S.C. § 1229a(b)(7). In limited circumstances, an in absentia order of removal may be rescinded and opened. 8 U.S.C. § 1229a(b)(5)(C).