Arriving Alien Adjustment: BIA Won't Reopen Final Orders

The Board of Immigration Appeals will generally not reopen a closed deportation case so an arriving alien can pursue a green card at USCIS, even in the Ninth Circuit, which rejected its reasoning in 2014.

Arriving alien adjustment of status just got harder for people who already have a final removal order. In a precedent decided Oct. 30, Matter of Pierre-Louis, 30 I&N Dec. 212 (BIA 2026), the Board of Immigration Appeals held that it generally will not use its sua sponte power to reopen proceedings so an arriving alien can pursue a green card application before U.S. Citizenship and Immigration Services. It affects people classified as arriving aliens, often parolees, who become eligible for a green card through a relative years after an immigration judge ordered them removed.

The decision lands as the system races to close cases. The Executive Office for Immigration Review said Oct. 29 that the Board completed nearly 46,400 cases in fiscal 2026, its highest total in 20 years, and immigration courts nearly 974,000. Pierre-Louis cites limited adjudication resources as weighing heavily against reopening old orders.

A Haitian husband, a naturalized wife and a fourth trip to the Board

The respondent, a Haitian citizen charged as an arriving alien in 2017, was ordered removed in 2018, and his appeal was dismissed in February 2021. Motions in 2023 and 2024, the second built on his Temporary Protected Status, failed.

His third motion, filed in March 2025, had stronger facts. His wife had naturalized, making him an immediate relative, his adjustment application was pending at USCIS, and he cited hardship to his wife and two children. The Board still said no. The motion was more than four years late and over the numerical limit, leaving only sua sponte reopening, a power reserved for exceptional situations. A request to pause a case while USCIS decides an arriving alien’s application, the Board wrote, is “a common situation, not an exceptional one.” The decision also notes that Haiti’s TPS designation ended July 27, 2026.

Why the Board reaffirmed Yauri despite the Ninth Circuit

The legal core of Pierre-Louis is its treatment of Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). Since a 2006 rule change, the regulations at 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1) give USCIS, not immigration judges, jurisdiction over most arriving aliens’ adjustment applications, leaving a narrow exception for certain people who left and returned on advance parole while an application was pending. Yauri held that the Board generally should not reopen a closed case just to keep the person here while USCIS acts, on two separate grounds: it lacks authority to do so, and it would decline as a matter of discretion anyway.

The Ninth Circuit declined to follow Yauri in Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), relying on regulatory language that lets the Board reopen “at any time.” Pierre-Louis, a case arising in that circuit, accepts that Singh is binding there and that the Board therefore has the power to reopen. Its answer is that Singh never addressed Yauri‘s alternative, discretionary holding. Having the power, the Board simply declines to use it. That move keeps Yauri intact in practice in every circuit, including the one that rejected it, and shifts the fight from what the Board may do to what it chooses to do.

That is likely to matter on appeal, because courts generally review refusals to reopen sua sponte only for legal or constitutional error. The decision also notes that the Second and Eighth Circuits have distinguished Yauri when a respondent with a still-open case seeks a continuance to await USCIS; Pierre-Louis concerns final orders.

Where that leaves arriving aliens with final orders

The Board points such applicants to a different door: asking the Department of Homeland Security for a stay of removal while USCIS decides the application, as Yauri also suggested. The practical effect is that the outcome now depends on enforcement discretion at ICE and on how quickly USCIS acts, not on the immigration court. That is a harder road in 2026, with USCIS applying a stricter adjustment of status policy that is itself being challenged in federal court.

It also fits a run of fall precedents narrowing discretionary relief, including Matter of Yang on cancellation of removal, the Oct. 29 decision on late amended asylum applications, and an earlier holding that judges need not accept motion to reopen declarations as true. With the Supreme Court also declining to revive administrative closure, the tools that once let a family-based green card catch up with an old removal order are thinning out.

The open question is whether the Ninth Circuit accepts the Board’s line between power and discretion. A petition for review would test it, and a ruling against the Board would put the split back in play.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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