The Board of Immigration Appeals has just issued a precedent decision: Matter of Maria C. YAURI, 25 I&N Dec. 103 (BIA 2009). 

The case involves an individual that was subject to a final administrative order of removal as a result of the BIA’s dismissal of her appeal. Approximately four years later, On March 24, 2008, an untimely motion to reopen was filed with the Board to enable Ms. Yauri to apply for adjustment of status, which motion was opposed by the Department. 

Subsequent to the submission of the motion to reopen, DHS filed a separate motion to reopen and terminate removal proceedings on the basis that USCIS had adjudicated the respondent’s adjustment of status application and had granted her lawful permanent residency on February 25, 2009.  The Board granted the DHS motion to reopen and terminate, denying the Respondent’s motion.

The Board’s ruling in the case is that:

(1) With a narrow exception not applicable to this case, the United States Citizenship and Immigration Services (“USCIS”) has exclusive jurisdiction to adjudicate an arriving alien’s application for adjustment of status under 8 C.F.R. § 245.2(a)(1) (2009) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding.

(2) The Board of Immigration Appeals generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so.

(3) With regard to untimely or number-barred motions to reopen, the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status before the USCIS.