Eligibility for immigration relief sometimes depends on whether an alien was admitted into the US or the lapse of time since admission. Thus, it becomes necessary to determine whether or not an alien was admitted. In some instances, the date of adjustment of status is considered the date of admission. The Board of Immigration Appeals (BIA) and the circuit court of appeals have approached the issue differently. In Negrete-Ramirez v. Holder, No. 10-71322, slip op. (9th Cir. January 21, 2014), which we briefly discussed in our previous article on INA 212(h) waivers, the Ninth Circuit explored these differences and tried to reconcile them. Let’s try to understand these rules.
INA 101(a)(13)(A) defines admission as the lawful entry of an alien into the US after inspection and authorization by an immigration officer. Adjustment refers to the process of obtaining lawful permanent residence (LPR) inside the US in contrast to consular processing where the alien first obtains an immigrant visa abroad and then enters the US as an LPR. The general adjustment provision is INA 245(a), which authorizes the Department of Homeland Security (DHS) or the Immigration Judge (IJ), in his discretion, to grant adjustment if an alien: (1) was inspected and admitted or paroled into the US; (2) is eligible to receive an immigrant visa; (3) is admissible, i.e. he is not disqualified from getting a visa due to certain convictions or prohibited conduct; and (4) an immigrant visa is immediately available to the alien, i.e. his priority date is current under the latest visa bulletin.
INA 245(b) instructs DHS to record the date an adjustment is approved as the alien’s date of lawful admission. Why is admission important? It matters for many reasons.
For example, INA 212(h) states that no waiver shall be granted to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony”. In Negrete-Ramirez, the alien initially entered on a B-2 visa and later adjusted to LPR status. After becoming an LPR, she was convicted of an aggravated felony. She was placed in removal proceedings but she applied for an INA 212(h) waiver. The IJ and the BIA both held that she was barred from applying for a waiver due to the prohibition on LPRs under INA 212(h).
The Ninth Circuit found that the plain language of the provision only prohibits those who were admitted into the US as LPRs but not those who were admitted as non-immigrants and later adjusted status.
The BIA thought that such approach would lead to absurd results because if adjustment is not considered as admission, then an alien who entered without inspection but who later adjusted status would be considered as never having been admitted even though he’s an LPR. Thus, the BIA insists that adjustment should always be considered as admission. In Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), it held that adjustment is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the US.
However, the Ninth Circuit and other circuit courts prefer a more nuanced approach. When a law uses the term “admission”, the Ninth Circuit will follow INA 101(a)(13)(A) as the primary definition. Thus, since INA 212(h) uses the term admitted as LPRs, the Court found that the term excluded LPRs who adjusted status. However, the Court recognized that in situations where there was no admission in the strict sense of INA 101(a)(13)(A) but the context requires an admission date by which to measure a later event, then the Court will consider adjustment as admission.
For example, under INA 237(a)(2)(A)(iii), an alien convicted of an aggravated felony “at any time after admission” is deportable. In Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001), the alien entered without inspection and later adjusted status to LPR. He was convicted of an aggravated felony but he argued that he was not removable because he was never “admitted” into the US. The Ninth Circuit rejected this narrow interpretation because it would have created a loophole for those who entered unlawfully.
In another example, INA 240A(a)(2) requires an applicant for LPR cancellation to show residence of 7 years after “having been admitted in any status”. In this situation, the Ninth Circuit would consider adjustment as admission.
INA 212(h) differs from INA 237(a)(2)(A)(iii) and INA 240A(a)(2) because INA 212(h) clearly requires that the alien was “admitted for permanent residence” whereas the two other provisions refer only to “admission” without qualification. A narrow definition of admission in the two other provisions would create absurd results.
However, if the reason for the aggravated felony bar for LPRs is to hold them to a higher standard, why should it matter how LPR status was obtained? Perhaps the problem lies in the language of the law, not in the Court’s interpretation. For now, LPRs who adjusted status should enjoy their unique position and the opportunities for relief that comes with it.
