If the applicant is an arriving alien, then the IJ lacks jurisdiction to decide any adjustment-of-status application unless, among other things, the applicant departed from and returned to the United States pursuant to the terms of a grant of advance parole to pursue a previously filed adjustment-of-status application. See id. § 1245.2(a)(1)(ii); Scheerer v. U.S. Att'y Gen., 513 F.3d 1244, 1248–49 & n. 4 (11th Cir.2008); see also In re Martinez–Montalvo, 24 I. & N. Dec. 778, 782 (BIA 2009) (“[USCIS] generally has exclusive jurisdiction to adjudicate adjustment applications of arriving aliens.

In his fourth claim for relief, plaintiff contends that a 2009 ruling by the Bureau of Immigration Appeals (BIA) in Matter of Martinez-Montalvo, 24 I N Dec. 778 (BIA 2009), which plaintiff asserts prohibits him from seeking an adjustment to permanent resident status in the context of his removal proceedings, violates the CAA, the INA, the applicable regulations and policy, and the Administrative Procedures Act. He seeks to present a full defense to removal, including raising an adjustment claim under the CAA, before the IJ.

Borges appealed to the BIA. The BIA found that pursuant to a previous BIA ruling in Matter of Martinez-Montalvo, 24 I. N. Dec. 778 (BIA 2009), the IJ did not have jurisdiction over Borges's application for adjustment of status or his waiver of inadmissability. Therefore, the BIA did not reach the substance of the IJ's order regarding Borges's request for a waiver of inadmissability.

The Court thus avoids a potentially difficult constitutional question of whether barring judicial review of a CAA adjustment for an arriving alien “would entirely preclude review of a pure question of law by any court,” St. Cyr, 533 U.S. 289, 300 (2001), because the jurisdictional bar's safety value “preserves review of legal and constitutional questions only when raised in a petition for review of a final order of removal,” Patel, 142 S.Ct. at 1626, and immigration judges lack jurisdiction to consider CAA eligibility for arriving aliens, including parolees such as Mr. Molerio-Garcia, in removal proceedings. Perez, 774 F.3d at 968; Matter of Martinez-Montalvo, 24 I. & N. Dec. 778, 782-83 (BIA 2009); see also Patel, 142 S.Ct. at 1636-37 (Gorsuch, J., dissenting) (“So under the majority's construction of subparagraph (B)(i), individuals who could once secure judicial review to correct administrative errors at step one in district court are now, after its decision, likely left with no avenue for judicial relief of any kind.