What is the meaning of enter through inspection? This is a question that confronts every foreigner who seeks adjustment of status in the United States. It is a critical step in the process of adjustment of status. Surprisingly, it is a question that aliens answer incorrectly to their own detriment.

Many aliens and their U.S. citizen sponsors believe that to enter through inspection one must receive a stamp in his or her passport, questioned by an immigration officer, enter with a valid visa and in a particular status. This perception is wrong.

In Matter of Graciela Quilantan, the Board of Immigration Appeals made it crystal clear that “for purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8. U.S.C section 1255(a) (2006) , an alien seeking to show that he or she has been “admitted” to the United States... need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.”

In Matter of Graciella Quilantan, the Respondent was a Mexican national who was a passenger of a car driven by her United States citizen friend to the U.S. border where an immigration inspector asked the driver if he was an American but did NOT ask Quilantan who was seated in the back seat anything. Quilantan did NOT have a valid document to enter the United States and did NOT receive a stamp in her passport but the car in which she was a passenger was allowed into the U.S. The Board of Immigration Appeals found that she was admitted through inspection and was eligible to adjust her status after she married a U.S. citizen.

The term admitted does NOT require you to be lawfully entitled to enter the U.S. This is so because of the 1960 amendment to section 245(a) of the Immigration and Nationality Act which replaced the earlier requirement that the alien be admitted as a bona fide nonimmigrant, i.e. that an alien’s admission be substantively lawful, with a requirement that the alien simply be inspected and admitted or paroled into the United States.

The Board of Immigration Appeals thus stated in Quilantan “as long as an alien’s entry into the United States as a nonimmigrant was procedurally proper (i.e., the alien underwent an inspection by an immigration officer, who subsequently admitted the alien), the alien could seek adjustment of status under section 245(a).

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U.S. Supreme Court Rules Federal Courts Have Jurisdictions to Review Denial of Motions to Reopen Removal Proceedings

On January 20, 2010, the U.S. Supreme Court ruled that  denial by the Board of Immigration Appeals (BIA) of a motion to reopen removal proceedings is reviewable by federal courts. This ruling means that Section 1252(a)(2)(B) of the Immigration and Nationality Act ("INA") does NOT prevent federal courts from overturning a denial of a motion to reopen removal proceedings.  

The Supreme Court decision which came in Kucana v. Holder, states Section 1252(a)(2)(B)'s jurisdictional bar is limited to discretionary decisions defined by statute, but NOT discretionary decisions defined by regulation.

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which amended the INA to codify certain procedural requirements regarding the BIA's reopening of removal proceedings. The amended INA requires that motions to reopen removal proceedings "state the new acts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material."In addition, the statute requires the motions to be "filed within 90 days of the date of entry of a final administrative order of removal."

The IIRIRA also amended the INA to create a jurisdictional bar on federal courts review of denial of discretionary relief. A few months prior to the enactment of IIRIRA, the Attorney General promulgated a regulation extending the scope of executive actions that are deemed "discretionary", to include the denial of a motion to reopen removal proceedings. Congress, however, did not codify the particular regulation as part of the amendment of the INA. As a result the classification of a motion to reopen as discretionary relief is governed by regulation.

In Kucana the Supreme Court drew a clear distinction between discretionary relief defined in statute and discretionary relief defined by regulation.

 The case is Kucana v. Holder, No. 08-00911