In re Ayala-Arevalo

• Citation: 22 I&N Dec. 398
• Decision Date: 30 November 1998
• Docket Number: File A42 989 249.,Interim Decision No. 3371.
• Parties: In re Pablo AYALA-Arevalo, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

22 I&N Dec. 398

In re Pablo AYALA-Arevalo, Respondent.

Interim Decision No. 3371.

File A42 989 249 - Philadelphia.

Board of Immigration Appeals.

Decided November 30, 1998.

(1) A discretionary waiver under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (Supp. II 1996), is not available to an alien who has been convicted of an aggravated felony, or to an alien who has not lawfully resided continuously in the United States for the statutorily required period of 7 years, where the alien has previously been lawfully admitted for permanent residence but subsequently has been found to have been excludable at entry or inadmissible on the date admitted.

(2) Matter of Michel, 21 I&N Dec. 1101 (BIA 1998), is not applicable to an alien who has previously been lawfully admitted for permanent residence to the United States but later claims that such admission was not lawful because he concealed from the Immigration and Naturalization Service criminal activities that, if known, would have precluded his admission, so the Immigration Judge correctly found that the respondent was statutorily ineligible for a waiver of inadmissibility under section 212(h) of the Act, Matter of Michel, supra, distinguished.

Stanley H. Wallenstein, Esquire, New York, New York, for respondent.

Catherine Muhletaler, Assistant District Counsel, for the Immigration and Naturalization Service.

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, GUENDELSBERGER, JONES, GRANT, and SCIALABBA, Board Members, Dissenting Opinion: ROSENBERG, Board Member.

JONES, Board Member.

This is a timely appeal from an April 22, 1997, decision of the Immigration Judge, finding the respondent deportable under sections 241(a)(1)(A) and (2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(1)(A) and (2)(A)(i) (Supp. II 1996), and ineligible for any relief from deportation. The only issue on appeal relates to the Immigration Judge's finding that the respondent was ineligible for a waiver under section 212(h) of the Act, 8 U.S.C. § 1182(h) (Supp. II 1996), in that he had not resided in the United States lawfully for 7 years or more, as required for an alien who has been admitted as a lawful permanent resident. The appeal will be dismissed. The request for oral argument is denied, 8 C.F.R. § 3.1(e) (1998).

I. BACKGROUND

The respondent is a 29-year-old native and citizen of Ecuador. He entered the United States in January 1989 and reentered on July 3, 1991, at which time he was admitted as an immigrant. On April 26, 1996, the respondent was convicted in the United States District Court, District of Rhode Island, of conspiracy in violation of 18 U.S.C. § 371 (1994) (conspiracy to defraud the United States by making false statements to a department of the United States). He was sentenced to a term of 27 months' imprisonment, followed by a term of supervised release to last 3 years.

The respondent testified that he had engaged in fraudulent activity before leaving the United States and had continued this activity upon his return. The details concerning this crime are described in a grand jury indictment. In brief, the respondent served as vice-president of a firm that purportedly offered assistance in obtaining legitimate employment authorization documents from the Immigration and Naturalization Service. For a fee of several hundred dollars, the respondent's firm would prepare fraudulent applications for asylum, in which false allegations of persecution were made for the purpose of obtaining employment authorization.

The Service attempted to establish that the respondent was an aggravated felon, in that the amount of loss to the victim of the conspiracy was more than $200,000 dollars (specifically, according to notes made by an investigator, $714,000). However, the Immigration Judge found that the Service did not establish that the respondent was within the definition of an aggravated felon, due to a lack of evidence in the record relating to the amount of loss to the victim. See section 101(a)(43)(M)(i) of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (1994) (defining certain crimes as aggravated felonies based on the amount of monetary loss to the victim).¹ The conviction record did not include a figure for the amount of loss, and the investigator's notes, to which the Service attorney testified, were not made part of the record at the deportation hearing. Thus, the Immigration Judge did not find the respondent deportable as an aggravated felon. He did, however, find the respondent deportable as charged, both on the basis of his conviction for a crime involving moral turpitude, and as an alien who was excludable at entry under section 212(a)(2)(A)(i)(I) of the Act, as a result of his conviction. Further, the Immigration Judge found the respondent ineligible for a waiver under section 212(h) of the Act because he had not resided in the United States lawfully for 7 years or more immediately preceding the date of the initiation of his deportation proceedings, which was May 20, 1996.

II. ISSUE

On appeal, the respondent argues that he is not bound by the requirement that 7 years of lawful presence be demonstrated in order to qualify for a waiver of inadmissibility under section 212(h) of the Act. It is the respondent's position that the relevant statutory provision differentiates between two classes of individuals: those who have been admitted for lawful permanent residence while concealing the presence of grounds of inadmissibility (in this case, ongoing criminal activity), and those who have been admitted for lawful permanent residence without having any grounds of inadmissibility to conceal. Stated differently, in the respondent's view, aliens who have been "lawfully" admitted for permanent residence are different from those whose admission was later found to have been in violation of law, and consequently determined to be unlawful. The respondent seeks to distinguish his case from that of other individuals previously admitted for permanent residence who lack the requisite 7 years of lawful residence because he was determined by the Immigration Judge to have been inadmissible on the date he was admitted to the United States as a lawful permanent resident on the basis that he had admitted that he was involved in an ongoing criminal conspiracy at that time. Therefore, the respondent argues that he should not be precluded from applying for relief under section 212(h) of the Act.

III. ANALYSIS

Section 212(h) of the Act was recently amended by section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-639 ("IIRIRA"), Two new sentences were added, which read as follows:

No waiver shall be granted under this subsection in the case of 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 or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States, No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.

Section 212(h) of the Act (emphasis added).

The Act defines "lawfully admitted for permanent residence" as follows:

The term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

Section 101(a)(20) of the Act. While the language of section 212(h) distinguishes those who have been previously admitted for permanent residence from those who have not, see Matter of Michel, 21 I&N Dec. 1101 (BIA 1998), the statute does not, either expressly or by implication, distinguish between those whose admission was lawful and those who were previously admitted for lawful permanent residence but are subsequently determined to have been admitted in violation of the law. To read such a distinction into the statute would be arbitrary and capricious, Cf. Matter of Pineda, 21 I&N Dec. 1017, at 1021 n.2 (BIA 1998) ("The fact that a reading of a statutory provision could lead to seemingly arbitrary and capricious results is not in itself determinative of the issue of statutory interpretation, but it can be a matter to be considered in one's analysis of the meaning of particular words."). We are not persuaded by the respondent's argument that we should read his proposed distinction into the law by focusing on the term "lawfully admitted" and disregarding the entire phrase that provides the context for that term, namely "previously been admitted" to the United States as an alien lawfully admitted for permanent residence. Section 212(h) of the Act.

The respondent does not meet the revised criteria for eligibility for a waiver under section 212(h) of the Act. His case is not similar to that of the respondent in Matter of Michel, supra, who was never admitted to the United States as a lawful permanent resident, and was thus unaffected by statutory language limiting eligibility of those who had been admitted as lawful permanent residents. The respondent in this case had been, at the time he was convicted, admitted to the United States as a lawful permanent resident.

In support of his interpretation, the respondent cites three Board cases that analyze the meaning of the phrase "lawfully admitted for permanent residence" in the context of registry proceedings under section 249 of the Act, 8 U.S.C. § 1259 (1958), Matter of Preciado-Castillo, 10 I&N Dec. 3 (BIA 1962); Matter of R-, 8 I&N Dec. 598 (Asst. Comm'r 1960); Matter of S-, 8 I&N...