Ali v. Gonzales

154 F. App'x 608

Opinion

MEMORANDUM

**

Sharifa Ah, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ decision dismissing her appeal from an immigration judge’s order pretermitting her application for adjustment of status on the ground that it lacked jurisdiction pursuant to 8 C.F.R. § 245.1(c)(8). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.

It is undisputed that Ali is an arriving alien who was proscribed from applying to adjust her status. See 8 C.F.R. § 245.1(c)(8) (an arriving alien who is in removal proceedings is ineligible to apply for adjustment of status). This regulation is invalid because it conflicts with the statute. See Bona v. Gonzales, 425 F.3d 663 (9th Cir.2005) (‘We ... hold that 8 C.F.R. § 245.1(c)(8) is invalid.”). Because Ali “was improperly precluded from applying for adjustment of status during her removal proceedings,” id., we grant the petition for review and remand for proceedings consistent with this disposition.

Because we grant relief under Bona, we decline to consider petitioner’s other contentions.

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.