On Feb. 23, 2022, U.S. Citizenship and Immigration Services (USCIS) issued a notice regarding previous denials of adjustment under the Cuban Adjustment Act (CCA) for Cubans designated “arriving aliens” at the border by the Department of Homeland Security (DHS) and subsequently released pending their removal proceedings. The notice outlined the required procedure for those applicants to seek reopening of their adjustment cases under USCIS’s new policy that such releases from DHS custody constitute “parole” for the purposes of the statute.

Background

Under the CAA, Public Law 89-732, Cuban citizens or “natives” qualify to adjust to lawful permanent resident (LPR) status as long as they: (1) have been inspected and admitted or paroled into the United States; (2) have been physically present in the United States for at least one year at the time of application; (3) are admissible to the United States; and (4) merit a favorable exercise of discretion.

Pursuant to the previous “wet-foot/dry-foot” policy, Cubans detained at ports of entry were not subjected to expedited removal but rather paroled under INA § 212(d)(5) to seek adjustment under the CAA. Although this policy officially ended under President Obama in 2017, many officers have continued to release Cubans at the border pending their INA § 240 proceedings, with or without issuing them documentation reflecting INA § 212(d)(5) parole. In a 2021 decision, an immigration judge in Miami found that, pursuant to a Supreme Court case, Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the only authority the Department of Homeland Security (DHS) has to release individuals seeking admission under INA § 235 is parole under INA § 212(d)(5), regardless of the paperwork issued to the noncitizen.

In the year since the 2021 Miami immigration judge decision, many practitioners have assisted Cuban clients in pursuing adjustments under the CAA, arguing that their release from DHS custody at the border constitutes parole under INA § 212(d)(5), thus satisfying the “inspected and admitted or paroled” requirement under the CAA. U.S. Citizenship and Immigration Services (USCIS) officers regularly approve adjustment applications where the applicants provided clear documentation indicating INA § 212(d)(5) parole, such as an I-94 or “Interim Notice Authorizing Parole,” but they apply heightened scrutiny and deny applicants where such paperwork was not available or not submitted.

Notice from USCIS

On Feb. 23, 2022, USCIS announced that it would implement a process for certain Cubans previously denied adjustment under the CAA based solely on a determination that they did not meet their burden of establishing that they had admitted or paroled. In its notice, USCIS indicated that this new process is available for natives or citizens of Cuba who:

1. meet the definition of an “arriving alien” under 8 § CFR 1.2;
2. were, prior to the entry of a removal order under INA § 240, initially released by DHS from its custody into the United States under INA § 236 (for example, with a Form I-220A, Order of Release on Recognizance, or on a DHS Bond under INA § 236)¹ between Jan. 12, 2017 and Nov. 17, 2021;
3. have not departed the United States since this initial release by DHS from DHS custody;
4. applied for adjustment of status under the CAA by filing a Form I-485, Application to Register Permanent Residence or Adjust Status with USCIS; and
5. were denied their Form I-485 based solely on a USCIS determination that they did not meet their burden of establishing that they had been admitted or paroled.

Under this process, applicants can file:

1. a new Form I-485 with USCIS, with fee or Form I-912, Request for a Fee Waiver, if eligible;
2. a timely Form I-290B, Notice of Appeal or Motion with USCIS, with fee or Form I-912, if eligible. If a timely Form I-290B is filed and the above criteria are met, USCIS will reopen and re-adjudicate the previously denied Form I-485; or
3. an untimely Form I-290B, with fee or Form I-912, for a period of one year from February 23, 2022, the date of the USCIS notice. Untimely Form I-290B’s should be annotated, “UNTIMELY MTR – DENIED CAA I-485 FOR NO ADMISSION OR PAROLE.” Applicants meeting the above criteria should attach a copy of the USCIS notice on top of any new Form I-485 or Form I-290B, indicate that they meet the criteria, and attach evidence of such criteria with their filing. Any new evidence of INA § 212(d)(5) parole issued by DHS should also be included in the filing, if applicable.

Analysis and Conclusion

This notice appears to indicate a welcome shift in USCIS policy, at least in CAA cases, towards an acceptance of the Jennings v. Rodriguez decision, which treated releases of “arriving aliens” from DHS custody under INA § 235 as being a form of parole under INA § 212(d)(5). It remains to be seen whether USCIS will extend this interpretation to individuals seeking employment authorization pursuant to 8 CFR § 247a.12(c)(11) based on having been paroled, or to individuals seeking INA § 245(a) adjustment based on a qualifying family relationship to a U.S. citizen or LPR. It is clear that USCIS also elected to limit application of this policy to those released by DHS (whether with or without requiring bond) and not an immigration judge, and those released prior to the entry of a removal order. This is likely because each of these categories of releases are governed by discrete sections of the INA (section 236 for releases on order by an immigration judge, and section 241 for post-removal-order releases on supervision by DHS).

For more information about Cuban Adjustment Act cases, see CLINIC’s publication, “All About Cuban Adjustment: Frequently Asked Questions.”

¹ USCIS excluded any release pursuant to order by an immigration judge under INA § 236.