Arriving Alien BIA Cases Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016) Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a returning lawful permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that section refers only to attempt and conspiracy to commit a crime involving moral turpitude, and is therefore properly considered to be an arriving alien under section 101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N Dec. 426 (BIA 2011), clarified. Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520 (BIA 2011) (1) Section 235(b)(1)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1)(A)(i) (2006), does not limit the prosecutorial discretion of the Department of Homeland Security to place arriving aliens in removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2006). (2) The fact that an Immigration Judge has no jurisdiction over applications for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended, does not negate his or her jurisdiction over the removal proceedings of arriving Cuban aliens under section 240 of the Act. Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998) (1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations. (2) According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole. Matter of R-D-, 24 I&N Dec. 221 (BIA 2007) (1) An alien who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States. (2) An alien returning to the United States after the denial of an application for refugee status in Canada is seeking admission into the United States and is therefore an arriving alien under 8 C.F.R. § 1001.1(q) (2007).

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