Conditional Parole Conditional parole is also known as release from custody. This is a separate and distinct process from parole and does not meet the “inspected and paroled” requirement for adjustment eligibility. Evidence of Parole Evidence of parole includes: Special Immigrant Juvenile Status (SIJS) Parole INA § 245(h) states “a special immigrant described in section 1101(a)(27)(J) of this title…such an immigrant shall be deemed, for purposes of subsection (a) [adjustment of status], to have been paroled into the United States.” The Regulations at 8 C.F.R. § 1245.1(a) goes farther, noting that regardless of how they entered the United States, a young person designated a special immigrant juvenile has been paroled: such a person is “deemed, for the purpose of applying the adjustment of status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States” (emphasis added). A Respondent cannot be found inadmissible or removable for being present in the United States without having been paroled when, under the law, he has been deemed to have been paroled. So this would serve as grounds for a motion to terminate removal proceedings if the the respondent is being charged only as inadmissible INA § 212(a)(6)(A)(i). INA §245(h) (h) Application with respect to special immigrants In applying this section to a special immigrant described in section 1101(a)(27)(J) of this title- (1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States; and (2) in determining the alien’s admissibility as an immigrant- (A) paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), and (9)(B) of section 1182(a) of this title shall not apply; and (B) the Attorney General may waive other paragraphs of section 1182(a) of this title (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. INA § 245(h) is clear and unambiguous, as “a special immigrant described in section 1101(a)(27)(J) of this title…such an immigrant shall be deemed, for purposes of subsection (a) [adjustment of status], to have been paroled into the United States.” The Regulations at 8 C.F.R. § 1245.1(a) goes farther, noting that regardless of how they entered the United States, a young person designated a special immigrant juvenile has been paroled: such a person is “deemed, for the purpose of applying the adjustment of status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States” (emphasis added). The Respondent cannot be found inadmissible or removable for being present in the United States without having been paroled when, under the law, he has been deemed to have been paroled. 8 USC § 1101(a)(27)(J) (J) an immigrant who is present in the United States— **(i)**who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; **(ii)**for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that— **(I)**no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and **(II)**no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; When is Parole NOT Parole for Purposes of Adjustment of Status? See **Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023);** MATTER OF CABRERA FERNANDEZ (1) Release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2018), is legally distinct from release on humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A) (2018). Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), followed. (2) Applicants for admission who are released on conditional parole rather than humanitarian parole have not been “inspected and admitted or paroled,” and accordingly are not eligible for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended.

ADMISSION A noncitizen is admitted if the following conditions are met: A noncitizen who meets these two requirements is admitted, even if the person obtained the admission by fraud. Likewise, the noncitizen is admitted, even if the CBP officer performed a cursory inspection. As long as the noncitizen meets the procedural requirements for admission, the noncitizen meets the inspected and admitted requirement for adjustment of status. Any type of admission can meet the inspected and admitted requirement, which includes, but is not limited to, admission as a nonimmigrant, an immigrant, or a refugee. See INA 101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”). Legislative history does not elaborate on the meaning of “lawful.” Evidence of Admission An Arrival/Departure Record (Form I-94), including a replacement when appropriate, is the most common document evidencing a noncitizen’s admission. The following are other types of documentation that may be accepted as proof of admission into the United States: When inspected and admitted to the United States, the following nonimmigrants are exempt from the issuance of an Arrival/Departure Record: False Claim to Citizenship Cannot be an Admission/Inspection A noncitizen who gains admission to the U.S. upon a knowing false claim to U.S. citizenship cannot be deemed to have been inspected and admitted. See Matter of Pinzon (PDF), 26 I&N Dec. 189 (BIA 2013). Deferred Admission Deferred inspection is a form of parole. A noncitizen who is deferred inspection is paroled into the United States for the period of time necessary to complete the inspection. See 8 CFR 235.2(c). For more information on deferred inspection, see Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].

Bars to Adjustment of Status Noncitizen INASection Entries and Periods of Stay to Consider Exemptfrom Bar Crewman 245(c)(1) Only most recent permission to land, or admission prior to filing for adjustment VAWA-based applicants In Unlawful Immigration Status on the Date the Adjustment Application is Filed OR Who Failed to Continuously Maintain Lawful Status Since Entry into United States OR Who Continues in, or Accepts, Unauthorized Employment Prior to Filing for Adjustment 245(c)(2) All entries and time periods spent in the United States (departure and return does not remove the ineligibility) VAWA-based applicantsImmediate relativesCertain special immigrants245(k) eligible Admitted in Transit Without a Visa (TWOV) 245(c)(3) Only most recent admission prior to filing for adjustment VAWA-based applicants Admitted as a Nonimmigrant Without a Visa under a Visa Waiver Program 245(c)(4) Only most recent admission prior to filing for adjustment VAWA-based applicantsImmediate relatives Admitted as Witness or Informant 245(c)(5) Only most recent admission prior to filing for adjustment VAWA-based applicants Who is Deportable Due to Involvement in Terrorist Activity or Group 245(c)(6) All entries and time periods spent in the United States VAWA-based applicant Seeking Adjustment in an Employment-based Immigrant Category and Not in a Lawful Nonimmigrant Status 245(c)(7) Only most recent admission prior to filing for adjustment VAWA-based applicantsImmediate relatives and other family-based applicantsSpecial immigrant juveniles245(k) eligible Who has Otherwise Violated the Terms of a Nonimmigrant Visa OR Who has Ever Engaged in Unauthorized Employment 245(c)(8) All entries and time periods spent in the United States (departure and return does not remove the ineligibility) VAWA-based applicantsImmediate relativesCertain special immigrants245(k) eligible EXEMPTIONS FROM BARS TO ADJUSTMENT Congress has provided relief from particular adjustment bars to certain categories of immigrants such as VAWA-based adjustment applicants, immediate relatives, and designated special immigrants. Furthermore, INA 245(k) exempts eligible applicants under the employment-based 1st, 2nd, 3rd and certain 4th preference categories from the INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) bars. Specifically, an eligible employment-based adjustment applicant may qualify for this exemption if the applicant failed to maintain a lawful status, engaged in unauthorized employment, or violated the terms of his or her nonimmigrant status (admission under a nonimmigrant visa) for 180 days or less since his or her most recent lawful admission. See also exceptions for being admitted or paroled.

Exceptions to Being Admitted or Parole VAWA & INA 245i SIJS See INA 245(h)(1), which states that SIJ-based applicants are considered paroled into the United States for purposes of INA 245(a). Special immigrant juveniles (SIJ) and other special immigrants are not exempt from this requirement. However, statutory provisions expressly state that these special immigrants are considered paroled for adjustment eligibility purposes. Accordingly, the beneficiaries of approved SIJ petitions meet the inspected and admitted or inspected and paroled requirement, regardless of their manner of arrival in the United States. See INA 245(g), which holds that certain special immigrants, as defined under INA 101(a)(27)(k), are considered paroled into the United States for purposes of INA 245(a).

AOS Statute INA 245(a) Adjustment of Status Eligibility Requirements The applicant must have been: The applicant must properly file an adjustment of status application. The applicant must be physically present in the United States. The applicant must be eligible to receive an immigrant visa. An immigrant visa must be immediately available when the applicant files the adjustment of status application. and at the time of final adjudication. The applicant must be admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief. The applicant merits the favorable exercise of discretion. §1255. Adjustment of status of nonimmigrant to that of person admitted for permanent residence (a) Status as person admitted for permanent residence on application and eligibility for immigrant visa The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. (b) Record of lawful admission for permanent residence; reduction of preference visas Upon the approval of an application for adjustment made under subsection (a), the Attorney General shall record the alien’s lawful admission for permanent residence as of the date the order of the Attorney General approving the application for the adjustment of status is made, and the Secretary of State shall reduce by one the number of the preference visas authorized to be issued under sections 1152 and 1153 of this title within the class to which the alien is chargeable for the fiscal year then current. (c) Alien crewmen, aliens continuing or accepting unauthorized employment, and aliens admitted in transit without visa Other than an alien having an approved petition for classification as a VAWA self-petitioner, subsection (a) shall not be applicable to (1) an alien crewman; (2) subject to subsection (k), an alien (other than an immediate relative as defined in section 1151(b) of this title or a special immigrant described in section 1101(a)(27)(H), (I), (J), or (K) of this title) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa under section 1182(d)(4)(C) of this title; (4) an alien (other than an immediate relative as defined in section 1151(b) of this title) who was admitted as a nonimmigrant visitor without a visa under section 1182(l) of this title or section 1187 of this title; (5) an alien who was admitted as a nonimmigrant described in section 1101(a)(15)(S) of this title,1 (6) an alien who is deportable under section 1227(a)(4)(B) of this title; (7) any alien who seeks adjustment of status to that of an immigrant under section 1153(b) of this title and is not in a lawful nonimmigrant status; or (8) any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa. (d) Alien admitted for permanent residence on conditional basis; fiancee or fiance of citizen The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title. The Attorney General may not adjust, under subsection (a), the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant (or, in the case of a minor child, the parent) to the citizen who filed the petition to accord that alien’s nonimmigrant status under section 1101(a)(15)(K) of this title. (e) Restriction on adjustment of status based on marriages entered while in admissibility or deportation proceedings; bona fide marriage exception (1) Except as provided in paragraph (3), an alien who is seeking to receive an immigrant visa on the basis of a marriage which was entered into during the period described in paragraph (2) may not have the alien’s status adjusted under subsection (a). (2) The period described in this paragraph is the period during which administrative or judicial proceedings are pending regarding the alien’s right to be admitted or remain in the United States. (3) Paragraph (1) and section 1154(g) of this title shall not apply with respect to a marriage if the alien establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the alien’s admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition under section 1154(a) of this title or subsection (d) or (p) 2 of section 1184 of this title with respect to the alien spouse or alien son or daughter. In accordance with regulations, there shall be only one level of administrative appellate review for each alien under the previous sentence. (f) Limitation on adjustment of status The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186b

Matter of Stockwell On November 21, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it had updated its Policy Manual (PM) in a policy alert titled “Adjustment on New Basis After Termination of Conditional Permanent Residence” [PDF version]. An alien who is admitted to the United States as a conditional permanent resident is barred from pursuing adjustment of status under section 245(a) while he or she is in conditional permanent resident status. See INA 245(d). The Board of Immigration Appeals (BIA) held in 1991 that this bar does not apply to an alien who was admitted to the United States as a conditional permanent resident status but whose conditional permanent resident status was terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The USCIS’s new guidance is designed to ensure uniformity in the USCIS’s handling of adjustment applications filed by aliens who were admitted as conditional permanent residents but whose conditional permanent resident status was subsequently terminated. The Board began by noting that INA 245(d) was added to the INA as part of the Marriage Fraud Amendments of 1986, part of what it described as “a comprehensive statutory scheme to deter immigration-related marriage fraud.” Section 216 itself, the Board explained, “was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage.” The INS codified regulations to implement the section 245(d) bar at 8 CFR 245.1(b)(12) (1991). The regulation, in the pertinent part, stated that “[a]ny alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 of the Act” was barred from adjustment under INA 245(a). The Board found that it was clear that Congress intended for any alien in conditional permanent resident status to be ineligible for adjustment of status. Regarding the open question of aliens whose conditional permanent resident status was terminated, the Board agreed with the Immigration Judge’s conclusion that the bar was only intended to apply “to aliens currently holding conditional permanent resident status.” The Board agreed with the Immigration Judge’s finding the regulatory language dispositive, and noted that the INS had omitted any mention of the regulation in its arguments. The Board subsequently affirmed the Immigration Judge’s decision granting the respondent’s application for adjustment of status in the exercise of discretion. Relevant Statutes An alien who obtains permanent resident status on the basis of marriage to a U.S. citizen or lawful permanent resident, and that alien’s derivative sons or daughters, is admitted to the United States as a permanent resident on a conditional basis. INA 216(a)(1). An alien who obtains status as an alien entrepreneur (employment-based fifth preference) and his or her derivative spouse and/or children is also admitted as a permanent resident on a conditional basis. INA 216A(a)(1). Conditional permanent residents must subsequently petition to have the conditions on their status removed. The requirements for having conditions removed are different for spouses (see INA 216) and entrepreneurs (see INA 216A). A conditional permanent resident under INA 216 or INA 216A may not adjust status on an alternative basis under INA 245(a). See INA 245(d); 8 CFR 245.1(c)(5). The statutes do not address the ability of an alien who was admitted as a conditional permanent resident, but whose status was subsequently terminated, to adjust status under INA 245(a). In the next section, we will examine how the BIA resolved this question. New USCIS Guidance on Adjustment for Former Conditional Permanent Residents The new USCIS guidance on adjustment cases involving aliens who were admitted as conditional permanent residents is found at 7 USCIS-PM B.7(G) [PDF version]. The PM notes that under statutes and regulations, an alien admitted in conditional permanent resident status is not permitted to adjust status under INA 245(a) while holding such status. Instead, the alien must comply with section 216 (family cases) or 216A (entrepreneur cases) to pursue the removal of conditions from his or her permanent resident status. However, in accord with Matter of Stockwell, the PM explains that this prohibition on adjustment only applies when the alien is currently in lawful conditional permanent resident status. Under Matter of Stockwell, “the bar no longer applies if USCIS terminates the alien’s [conditional permanent resident] status.” The USCIS may terminate an alien’s conditional permanent resident status for any of the reasons stated in INA 216 (family cases) or 216A (entrepreneur cases). The USCIS generally issues a Notice to Appear upon terminating an alien’s conditional permanent resident status. The PM states that although an immigration judge may review the termination of conditional permanent resident status in an alien’s subsequent removal proceedings, the USCIS’s position is that the bar to adjustment of status found in 245(d) becomes ineffective upon the USCIS’s decision to terminate conditional permanent resident status. Therefore, “it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s [conditional permanent resident] status before the alien may file a new adjustment application.” In accord with the statutes, regulations, Matter of Stockwell, and the USCIS’s interpretation of the foregoing, an alien whose conditional permanent resident status has been terminated may adjust status under INA 245(a) if: The alien has a new basis for adjustment;The alien is otherwise eligible to adjust; andUSCIS has jurisdiction over the adjustment application. The USCIS makes clear that an alien must have a new basis for adjustment of status. That is, “the alien may not reuse the immigrant petition associated with the previous [conditional permanent resident] adjustment or admission.” An alien initially admitted as a K nonimmigrant fiancé(e) may only re-adjust status on the basis of an approved Form I-130, Petition for Alien Relative, filed by the same U.S. citizen who filed the Form I-129F Petition for Alien Fiancé(e), on his or her behalf. The PM adds that the alien must be otherwise eligible for adjustment of status, including by not being inadmissible or barred from adjustment under INA 245(c). In short, the alien must meet the generally applicable requirements for adjustment. If the USCIS grants the former conditional permanent resident’s adjustment application, it “generally considers the date of admission to be the date USCIS approved the

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 crediblefear 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: 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 makethe [noncitizen] inadmissible until it is executed.”20 Thus the removal order is not a bar toadjustment. However, practitioners still must consider whether the underlying ground uponwhich the removal order is based renders the noncitizen inadmissible and therefore ineligible foradjustment and, if it does, whether a waiver is available. For example, where the removal order isbased on 8 U.S.C. § 1182(a)(7)—the inadmissibility ground for individuals who did not have avalid visa or