Bayani Posadas Fulgencio v. Immigration and Naturalization Service

This is an appeal from a final order of deportation which was upheld by the Board of Immigration Appeals.

The issues are: (1) whether the immigration judge abused his discretion in denying appellant an adjustment of status to that of permanent resident; and (2) whether the immigration judge was permitted to make a conditional adjustment of status order which could be revoked on a motion to reopen deportation proceedings.

FACTS:

Appellant was the subject of a deportation hearing for having remained in this country beyond the period authorized. During the hearing, he applied for adjustment of status to permanent resident under the provisions of the Immigration and Naturalization Act, § 245; 8 U.S.C. § 1255 (marriage to an American citizen). The immigration judge granted the adjustment of status conditioned upon the absence of “any derogatory information concerning the respondent” in “appropriate record checks” to be completed thereafter.

When the record checks disclosed a prior undissolved marriage in the Philippines, the judge reopened the proceedings and “withdrew” his prior order of adjustment. He also refused to grant appellant’s new application for adjustment of status…