File A071 610 438 – Los Angeles, California
Decided October 28, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(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.