Cubans No Longer Get Green Cards in Immigration Court

A recent decision by the Board of Immigration Appeals changes the immigration process for Cubans seeking permanent residency in the United States. Pursuant to the Cuban Refugee Adjustment Act of 1966, Cuban nationals who appear at U.S. border posts seeking admission are generally paroled into the United States as “Cuban asylees.” After entry into the U.S., Cubans can immediately apply for work permits. Then, one year after living in the U.S., Cuban nationals can file I-485 applications to adjust their status to obtain their green cards.

Although Cubans who are paroled into the U.S. have a clear path to permanent residency (getting a green card), they are placed into the deportation proceedings and, therefore, must appear before an Immigration Judge in Immigration Court.

Until recently, Immigration Judges had jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans, and Cubans would apply for their green cards through Immigration Court and before an Immigration Judge. The Court then could grant their green card and simultaneously take them out of removal proceedings.

But now, according to the Board of immigration Appeals in Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), Immigration Judges have no jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans who have been paroled into the U.S. under the Cuban Refugee Act. Instead, to obtain green cards, Cuban parolees must file their I-485 with U.S. Citizenship and Immigration Services (“USCIS”).

This Board of Immigration Appeals decision puts Cuban parolees in an odd situation: they must appear in Immigration Court, yet Immigration Court has no jurisdiction over the adjustment of status applications that they are eligible to file. If you are a Cuban national who is in removal proceedings, your most likely option is that your lawyer will ask the Immigration Judge to continue your case until USCIS adjudicates your I-485. The problem is that it could easily take two years for USCIS to make a decision on the I-485!

To me, this new scenario for Cuban asylees makes no sense. It clogs the docket and wastes the Immigration Court’s limited resources.

If you have questions about the deportation process, Cuban adjustment, other immigration issues, or if you are seeking an attorney to represent you in Boston Immigration Court, call my Boston office at (617) 722-0005 to set up an immigration consultation.