In re Briones
| Decision Date | 29 November 2007 |
| Docket Number | File A75 907 909.,Interim Decision No. 3590. |
| Parties | In re Alonzo BRIONES, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from an Immigration Judge's March 31, 2005, decision pretermitting his application for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000).1 The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who entered the United States without inspection in 1992. In March 1993, the respondent's father, who was then a lawful permanent resident of the United States, filed a Petition for Alien Relative (Form I-130) on the respondent's behalf, seeking to classify him as a family-sponsored immigrant in the second-preference category, i.e., as the unmarried son of a lawful permanent resident. See section 203(a)(2) of the Act, 8 U.S.C. § 1153(a)(2) (1988). The former Immigration and Naturalization Service ("INS") approved the petition in January 1994, but no visa number was then available to the respondent because his preference category was oversubscribed.2 Nonetheless, the respondent remained in the United States without permission until December 1998, when he departed to Mexico.
On March 3, 1999, the respondent's father became a naturalized citizen of the United States. As a result, the respondent's approved second-preference visa petition was automatically converted to an approved first-preference petition. 8 C.F.R. § 204.2(i)(3) (1999). On March 18, 1999, the respondent reentered the United States without being admitted or paroled by an immigration officer, and he has remained in the United States ever since. In July 1999, the respondent filed an Application to Register Permanent Residence or Adjust Status (Form I-485) with the DHS pursuant to section 245(i) of the Act on the basis of his approved visa petition.
In 2004, the DHS denied the respondent's adjustment of status application and initiated the present removal proceedings, in which the respondent is charged with inadmissibility as an alien who reentered the United States without admission after having previously been unlawfully present in the United States for an aggregate period of more than 1 year. See section 212(a)(9)(C)(i)(I) of the Act, 8 U.S.C. § 1182(a)(9)(C)(i)(I) (2000). The respondent denied the charge but also sought to renew his application for adjustment of status, arguing that inadmissibility under section 212(a)(9)(C)(i)(I) of the Act was no impediment to section 245(i) adjustment, which is available by its terms to aliens who are present in the United States after having entered without inspection. The Immigration Judge pretermitted the application, however, concluding that the respondent's inadmissibility under section 212(a)(9)(C)(i)(I) of the Act rendered him ineligible for adjustment of status.3 The respondent appealed, and at our request the parties have filed supplemental briefs and appeared for oral argument.
The principal issue on appeal is whether adjustment of status under section 245(i) of the Act is available to an alien who is inadmissible to the United States under section 212(a)(9)(C)(i)(I) of the Act.
The Immigration Judge determined that the respondent is inadmissible to the United States under section 212(a)(9)(C)(i)(I) of the Act. In 2004, when the DHS initiated these proceedings, the statute provided as follows, in pertinent part:
§ 1182. Inadmissible aliens.
(a) Classes of aliens ineligible for visas or admission.
Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
. . . .
(9) Aliens previously removed
. . . .
(C) Aliens unlawfully present after previous immigration violations
Any alien who—
(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or
(II) has been ordered removed under section 1225(b)(1) of this title, section 1229a of this title, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.
Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.
Section 212(a)(9)(C) was enacted pursuant to section 301(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-577 (effective Apr. 1, 1997) ("IIRIRA"). The purpose of the statute was to single out recidivist immigration violators and make it more difficult for them to be admitted to the United States after having departed. See generally Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006); Matter of Torres-Garcia, 23 I&N Dec. 866, 868 (BIA 2006).
It is undisputed that the respondent was unlawfully present in the United States for more than 1 year between April 1, 1997, the date when section 212(a)(9)(C) of the Act went into effect, and December 1998 when he returned to Mexico.4 It is also undisputed that he reentered the United States in March 1999 without being inspected, admitted, or paroled. Because the respondent entered the United States without admission or parole after a prior period of unlawful presence in this country of more than 1 year, he is inadmissible pursuant to the plain language of section 212(a)(9)(C)(i)(I). Furthermore, he cannot presently be granted permission to reapply for admission under section 212(a)(9)(C)(ii), either prospectively or retroactively, because his last departure from the United States occurred less than 10 years ago. Matter of Torres-Garcia, supra, at 873-76.5 Having established that the respondent is inadmissible and removable as charged, we now turn to the question whether he is eligible for adjustment of status under section 245(i) of the Act despite his inadmissibility.
Congress has generally limited the availability of adjustment of status to aliens who have been "inspected and admitted or paroled into the United States." Section 245(a) of the Act. The purpose of this "inspection and admission" requirement is to discourage intending immigrants from moving to the United States before becoming fully eligible for permanent residence and to encourage them to follow the orderly consular process for the issuance of immigrant visas. By the early 1990s, however, Congress had determined that the inspection and admission requirement had become an undesirable impediment to the acquisition of permanent resident status by many close relatives of the more than 2.5 million aliens whose immigration status had been "legalized" pursuant to section 201(a) of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3394 (). Because of the inspection and admission requirement, many close family members of these legalized aliens were obliged to leave the United States so that they could apply for an immigrant visa at a consulate or embassy abroad, placing a significant administrative burden on the resources of the State Department and exposing the aliens themselves to considerable personal expense. See Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 59 Fed. Reg. 51,091, 51,092 (Oct. 7, 1994), 1994 WL 543334.
In 1994, Congress responded to this state of affairs by creating a new section 245(i) of the Act, which authorized a limited departure from the general "inspection and admission" requirement by permitting the Attorney General to grant adjustment of status upon the payment of a surcharge to certain aliens who had entered the United States without inspection or failed to maintain lawful status after having been admitted as nonimmigrants. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, Pub. L. No. 103-317, § 506(b), 108 Stat. 1724, 1765-66 (effective Oct. 1, 1994) ("1995 Appropriations Act"); see also H.R. Rep. No. 103-708, at 25, 83-84 (1994) (Conf. Rep.), 1994 WL 444749 (). To encourage qualifying aliens to seek this new form of adjustment, moreover, Congress erected barriers to consular processing by requiring most aliens who had been physically present in the United States to remain abroad at their own expense for at least 90 days before they could receive an immigrant visa. See 1995 Appropriations Act § 506(a), 108 Stat. at 1765 (...
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Lopez-Aguiar v. Holder, 10-71715
...erred in concluding that he was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and ineligible to adjust status under Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007). The reasoning in Garfias-Rodriguez controls the analysis of whether Lopez-Aguiar can avoid the retroactive application o......