Letter to Chief Judge Creppy from AILF on 245(i)

October 21, 1994

Michael Creppy
Chief Immigration Judge
Office of the Chief Immigration Judge
5107 Leesburg Pike
Falls Church, VA 22041

Dear Chief Judge Creppy:

I write to ask your immediate intervention to resolve the erroneous and unreasonable interpretation given by some Immigration Judges to the status of recently enacted '245(i) relating to eligibility for adjustment of status in the United States. As you know, after Congress enacted the '245(i) in question, it also designated as '245(i) an amendment to the Immigration and Nationality Act (INA) relating to a new "S" visa.

When I spoke on a panel with you at a meeting of the D.C. Chapter of the American Immigration Lawyers Association in September, 1994, you indicated, if I remember your remarks accurately, that while you felt that in the long run a technical amendment would be needed to overcome the designation of these two distinct subsections of the statute, EOIR was joining the INS in its position that the duplicate designation neither repealed nor superseded '245(i) as it pertains to adjustment of status eligibility.

Notwithstanding what I understand to be the joint position of INS and EOIR regarding the viability of '245(i) as it relates to adjustment of status eligibility, at least two instances have been reported to me in which two different Immigration Judges in the Los Angeles EOIR district have refused to exercise jurisdiction over applications for adjustment of status under new '245(i) for the reason that it is ineffective as having been replaced by the subsequently enacted '245(i). As a result, eligible applicants for adjustment of status are being foreclosed from seeking this relief before Immigration Judges.

Thank you for your prompt attention to this matter. I am concerned that such confusion and misunderstanding of the EOIR's position may affect the adjudications conducted by Immigration Judges in other districts as well.

As I understand your interpretation to be in conformity with that of the INS, then I urge you to immediately send a cable or memo to all District Offices of the Immigration Judge.

Sincerely,

Lory D. Rosenberg
Director
AILF Legal Action Center

Indeed, in the Supplementary Information provided in INS' regulations (59 Fed. Reg. 194, at 51094, October 7, 1994), INS states that it is clear that Congress had no intent to repeal or supersede the provisions of the Department of Justice, State and Related Agencies Appropriations Act which contains '245(i) relating to adjustment of status, and that it regards the establishment of another '245(i) to govern the new "S" visa as a numbering error, regarding which it will recommend correction by redesignating that subsection as '245(j).