In re Koljenovic, 25 I&N Dec. 219 (I & N 4/21/2010)
| Citation | 25 I&N Dec. 219 |
| Decision Date | 21 April 2010 |
| Docket Number | No. 3677.,File A078 831 534-Newark.,3677. |
| Parties | Matter of Safet KOLJENOVIC, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 24, 2008, an Immigration Judge found the respondent removable on his own admissions under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an alien convicted of a crime involving moral turpitude, and denied his application for a waiver of inadmissibility under section 212(h) of the Act. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Montenegro. He originally entered the United States without inspection and adjusted his status to that of a lawful permanent resident on September 24, 2001. He was convicted of second-degree organized fraud under section 817.034(4)(a)(2) of the Florida Statutes on December 20, 2004. The respondent was placed in removal proceedings when he arrived in the United States seeking admission as a returning lawful permanent resident on August 20, 2006. Although he has conceded that he is removable, he requested a waiver of inadmissibility under section 212(h) of the Act. The Immigration Judge denied the waiver, finding that the respondent was ineligible because he was lawfully admitted for permanent residence when he adjusted his status and he did not have the requisite 7 years of lawful continuous residence since the date of his adjustment of status. On appeal the respondent argues that this requirement does not apply to him because he was not "admitted" as a lawful permanent resident when he adjusted his status.1
The issue presented in this appeal is whether the respondent "has previously been admitted to the United States as an alien lawfully admitted for permanent residence" and must therefore satisfy the 7-year lawful continuous residence requirement of section 212(h) of the Act to be eligible for a waiver.
In relevant part, section 212(h)(2) of the Act states that no waiver may be granted
in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . 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.
The respondent originally entered the United States without inspection. He became a lawful permanent resident by adjusting his status under section 245 of the Act, 8 U.S.C. § 1255 (2006). The respondent's adjustment of status is not an "admission" as that term is literally defined in section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006).2 However, the limited definitions of the terms "admission" and "admitted" in section 101(a)(13)(A) do not resolve the meaning of the phrase "admitted . . . as an alien lawfully admitted for permanent residence" in section 212(h) of the Act. See Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) (en banc).
An alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or by adjustment of status if the alien is already in the United States. Adjustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace. "As we have repeatedly held, an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States." Matter of Rainford, 20 I&N Dec. 598, 601 (BIA 1992). Sections 245(a) and (i) and section 245A(b)(1) of the Act, 8 U.S.C. § 1255a(b)(1) (2006), plainly authorize the Attorney General to adjust an alien's status "to that of an alien lawfully admitted for permanent residence" and thus provide that adjustment applicants are to be treated as if they are being "admitted." (Emphasis added.) For these reasons, it is not necessary that section 101(a)(13) of the Act specifically include adjustment of status in the definition of an "admission."
We have consistently construed an adjustment of status as an "admission." In Matter of Rosas, 22 I&N Dec. 616, we held that aliens who are lawfully admitted for permanent residence through the adjustment of status process are considered to have effectuated an "admission" to the United States. In that case, the respondent entered the United States without inspection and thereafter adjusted her status to that of a lawful permanent resident pursuant to section 245A of the Act. The Immigration Judge found that her adjustment of status was not an "admission" within the meaning of section 101(a)(13) of the Act and that she was therefore not deportable as an alien convicted of an aggravated felony at any time after admission. We disagreed, noting that if that were the case, aliens who entered without inspection and later adjusted their status would never have been "admitted" for permanent residence and would therefore be ineligible for relief from removal that includes an "admission" requirement. We concluded that such an interpretation of the statute would be inconsistent with the overall structure of the Act as it has been amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA").
As we recognized in Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006), this interpretation would also be contrary to section 245(b) of the Act, which instructs the Attorney General to "record the alien's lawful admission for permanent residence as of the date" that adjustment of status was granted. We therefore extended the rationale of Matter of Rosas, finding that an alien who has been accorded lawful permanent resident status is deemed to have been "admitted" as of the date of the adjustment of status. The alien in that case was initially admitted as a nonimmigrant visitor for pleasure and then subsequently adjusted his status to that of a lawful permanent resident. As in Rosas, we interpreted the term "admission" in the context of the removability provisions in section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and concluded that the respondent was deportable because he was convicted of a crime involving moral turpitude within 5 years of his adjustment of status.
Applying Matter of Rosas to the facts of this case, it is clear that the respondent's only "admission" into the United States was pursuant to his 2001 adjustment of status. The respondent, like the alien in Rosas, entered without inspection, so this is not a case where alternative dates of admission are possible. If his 2001 adjustment of status is not considered an admission, he would be in the absurd position of being a lawful permanent resident without ever having been "admitted" in that status and thus could be subject to inadmissibility under section 212(a)(6)(A)(i) of the Act and ineligible for various forms of relief. See Matter of Rosas, 22 I&N Dec. at 621-23; see also Matter of Briones, 24 I&N Dec. 355, 365 (BIA 2007) (). Therefore, we conclude that the respondent's adjustment of status was an "admission" within the meaning of the Act.
The pertinent legislative history supports our conclusion. Section 212(h) of the Act was amended by section 348 of the IIRIRA, 110 Stat. at 3009-639, to include the language at issue in this case. The Conference Report accompanying the IIRIRA states, "The managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h)." H.R. Rep. 104-828, at 228 (1996) (Conf. Rep.) (Joint Explanatory Statement), 1996 WL 563320. Section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2006), sets forth a continuous residence requirement of 7 years for cancellation of removal for lawful permanent residents. We consider the Conference Report's reference to section 240A of the Act to reflect Congress' intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.
An interpretation of section 212(h) of the Act that does not treat an alien's adjustment of status as an admission that invokes the 7-year residence requirement would frustrate this legislative purpose. An alien who is removable for a criminal conviction, who obtained lawful permanent residence through adjustment of status, and who has not resided continuously in the United States for 7 years would be ineligible for cancellation of removal under section 240A but would remain eligible for a section 212(h) waiver. The legislative history of the IIRIRA indicates that Congress did not intend such a result.
This is particularly so in a case such as this where the alien entered the United States illegally and later adjusted his status. Congress presumably did not intend for an alien who entered the United States illegally and was afforded the privilege of adjustment of status to be able to avoid the...
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