In re Lemus-Losa
| Citation | 25 I&N Dec. 734 |
| Decision Date | 19 March 2012 |
| Docket Number | Interim Decision #3745 |
| Parties | Matter of Miguel LEMUS-Losa, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
Adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), is unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006), absent a waiver. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.
FOR RESPONDENT: Rekha Sharma-Crawford, Esquire, Kansas City, Missouri
PAULEY, Board Member:
In a decision dated December 16, 2005, an Immigration Judge ordered the respondent removed from the United States after finding him ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000). According to the Immigration Judge, section 245(i) adjustment is unavailable to aliens, like the respondent, who are inadmissible to the United States under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000), and ineligible for a waiver under section 212(a)(9)(B)(v). We dismissed the respondent's appeal from the Immigration Judge's removal order in a precedent decision dated November 29, 2007. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007).
The record is now before us on remand from the United States Court of Appeals for the Seventh Circuit, which reviewed our prior decision and found it deficient in various respects. Lemus-Losa v. Holder, 576 F.3d 752, 761 (7th Cir. 2009). After remand, we requested and received supplemental briefs from the parties. Upon consideration of the Seventh Circuit's decision and the very helpful arguments set forth in the parties' supplemental briefs, we respectfully reaffirm our prior determination that an alien's inadmissibility under section 212(a)(9)(B)(i)(II) precludes him from qualifying for section 245(i) adjustment of status absent a waiver. We nevertheless deem it prudentto remand the record for the Immigration Judge to address several emergent issues bearing on the respondent's inadmissibility.
The pertinent facts are undisputed. In 1998 or 1999 the respondent, a native and citizen of Mexico, entered the United States without inspection, after which he lived in the United States for approximately 2 years without lawful status. In 2001 or thereabouts, the respondent departed from the United States and returned to Mexico. In 2003, the respondent reentered the United States, again without inspection, and has remained here in unlawful status ever since. These removal proceedings commenced in 2005.
During his proceedings in Immigration Court, the respondent conceded removability from the United States under section 212(a)(6)(A)(i) of the Act for being present without having been admitted or paroled, but he applied for adjustment of status under section 245(i) of the Act.1 To qualify for section 245(i) adjustment, an applicant must be "physically present in the United States" and must demonstrate that he or she is "admissible to the United States for permanent residence," among other things. Sections 245(i)(1), (2)(A) of the Act. The respondent is obviously "physically present in the United States" as a result of his 2003 reentry, but the Immigration Judge found that he is not "admissible . . . for permanent residence" because his history of immigration violations rendered him inadmissible under section 212(a)(9)(B)(i)(II) of the Act, which provides as follows:
Despite the unambiguous "admissibility" requirement of section 245(i)(2)(A), the respondent maintains that inadmissibility under section 212(a)(9)(B)(i)(II) of the Act should not be an impediment to his adjustment of status because inadmissibility arising from "unlawful presence" in the United States is precisely the sort of violation that section 245(i) was designed to forgive. In effect, the respondent views section 245(i) of the Actas embodying an implicit exception to the admissibility requirement for aliens who are covered by section 212(a)(9)(B)(i)(II) of the Act. We rejected that argument in our prior decision, for a number of reasons that bear further explanation in light of the Seventh Circuit's remand.
To qualify for adjustment of status under section 245(a) of the Act, an alien must prove that he has been "inspected and admitted or paroled" into the United States. Aliens who satisfy this inspection and admission or parole requirement may still be ineligible for adjustment of status, however, if they are covered by any of the exclusion clauses enumerated in section 245(c) of the Act. As we have previously explained, section 245(i) was enacted in 1994 to provide a temporary exception to these general limitations on eligibility for adjustment of status, thereby providing a path to lawful permanent residence for aliens who had "entered the United States without inspection" and were willing to pay a surcharge. See Matter of Briones, 24 I&N Dec. 355, 360-62 (BIA 2007) ().
Applicants for section 245(i) adjustment have always been required to prove that they are "admissible to the United States for permanent residence," see section 245(i)(2)(A) of the Act, meaning that they must prove either that they are not inadmissible under any of the various paragraphs of section 212(a) of the Act or that they are eligible for a waiver of any applicable ground of inadmissibility. 8 C.F.R. § 1245.10(b)(3) (2011). For the first few years after section 245(i) was enacted, this admissibility requirement was no impediment to adjustment for aliens who had "entered without inspection" because entry without inspection was then a ground of deportability rather than of inadmissibility. See Matter of Briones, 24 I&N Dec. at 362-63.
In 1996, however, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,110 Stat. 3009-597 ("IIRIRA"), which replaced the "entry without inspection" deportability ground with a new inadmissibility ground pertaining to aliens who are present in the United States without having been admitted or paroled. See section 212(a)(6)(A)(i) of the Act. A paradoxical effect of this amendment was seemingly to make entry without inspection "both a qualifying and a disqualifying condition for adjustment of status" under section 245(i). Matter of Briones, 24 I&N Dec. at 362. In addition, the IIRIRA created two new inadmissibility grounds covering aliens who seek admission to,or unlawfully reenter, the United States after having committed previous immigration violations. Sections 212(a)(9)(B), (C) of the Act. However, it included no conforming amendments to clarify how these new inadmissibility grounds would affect aliens' eligibility for section 245(i) adjustment.
In Matter of Briones, we concluded that although the section 245(i)(2)(A) admissibility requirement was unambiguous, it could not be applied to make section 245(i) adjustment unavailable to aliens who are inadmissible solely under section 212(a)(6)(A)(i) of the Act, because such an interpretation "would render the language of section 245(i) so internally contradictory as to effectively vitiate the statute, an absurd result that Congress is presumed not to have intended." 24 I&N Dec. at 365 (citing Demarest v. Manspeaker, 498 U.S. 184, 190-91 (1991)). We made clear, however, that this narrow "absurdity" exception applied only to section 212(a)(6)(A)(i). Aliens who were inadmissible under other sections, such as section 212(a)(9)(C)(i)(I), remained subject to the plain language of section 245(i)(2)(A) because applying the "admissibility" requirement to them did not lead to absurd results or defeat the purpose for which section 245(i) was enacted. Id. at 366-70; see also Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010) (reaffirming Matter of Briones).2
In our prior decision in this case, we concluded that "much of our reasoning in Matter of Briones . . . applies to aliens, like the respondent, who are inadmissible under section 212(a)(9)(B)(i)(II) of the Act." Matter of Lemus, 24 I&N Dec. at 378. We observed at the outset that "the plain language of section 245(i)(2)(A) unambiguously requires an applicant for adjustment of status to prove that he is 'admissible to the United States for permanent residence,'" and we concluded that "[a]liens who are inadmissible under section 212(a)(9)(B)(i)(II) necessarily fail to meet that requirement, absent an available waiver" under section 212(a)(9)(B)(v) of the Act. Id. We also noted that applying section 245(i)(2)(A) to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) does not vitiate the statuteor "lead to absurd consequences, as it would if we applied that [admissibility] requirement to aliens who are inadmissible under section 212(a)(6)(A)(i) for being present in the United States without having been admitted or paroled," since the class of aliens described in section 212(a)(9)(B)(i)(II) is much narrower than that covered by section 212(a)(6)(A)(i). Id. at 378.
Moreover, as in Matter of Briones, we deemed it important that in every other instance where Congress had extended eligibility for adjustment of status to classes of aliens who were unlawfully present in the United States, it had seen the necessity of expressly negating the applicability of section 212(a)(9)(B)(i)(II) by authorizing waivers of...
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