In re Rodarte-Roman
| Decision Date | 06 April 2006 |
| Docket Number | Interim Decision No. 3531.,File A76 666 353. |
| Citation | 23 I&N Dec. 905 |
| Parties | In re Raul RODARTE-Roman, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from an Immigration Judge's July 14, 2004, decision finding him inadmissible to the United States under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000), and pretermitting his application for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000). The Department of Homeland Security ("DHS"), formerly the Immigration and Naturalization Service ("INS"), opposes the appeal.1 The appeal will be sustained and the record will be remanded to the Immigration Judge for further proceedings.
The respondent, a native and citizen of Mexico, entered the United States without inspection in 1993 and remained unlawfully until May 3, 1997, when he departed and returned to Mexico. In early August 1997, he reentered the United States without being admitted or paroled by an immigration officer, and he has remained in the United States continuously thereafter. In December 1997, he was apprehended by the DHS and placed in the present removal proceedings, in which he is charged with removability as an alien present in the United States without having been admitted or paroled. See section 212(a)(6)(A)(i) of the Act.
On March 24, 2001, after these removal proceedings had been initiated, the respondent's United States citizen wife filed an immediate relative visa petition on his behalf, which was approved by the DHS on October 17, 2001. On the basis of this approved visa petition, the respondent requested that the Immigration Judge entertain his application for adjustment of status under section 245(i) of the Act. The Immigration Judge pretermitted the application, however, concluding that the respondent's years of unlawful presence in the United States after his May 1997 departure rendered him inadmissible under section 212(a)(9)(B)(i)(II) of the Act and, by extension, ineligible for adjustment of status.
This appeal presents the question whether the respondent, who has been unlawfully present in the United States since his unauthorized entry in August 1997, and who is seeking adjustment of status less than 10 years after his last departure from the United States in May 1997, is inadmissible under section 212(a)(9)(B)(i)(II) of the Act.
Section 212(a)(9)(B)(i) of the Act provides, in pertinent part, as follows:
is inadmissible.
The respondent wants to adjust his status from that of an alien present in the United States without having been admitted or paroled to that of a lawful permanent resident under section 245(i) of the Act. Section 245(i)(1) of the Act provides, in pertinent part, that "an alien physically present in the United States . . . who . . . entered the United States without inspection" and who is the beneficiary of a visa petition filed on or before April 30, 2001, may apply to the Attorney General for adjustment of status upon payment of $1,000.2 Upon receiving the alien's application and the required sum, the Attorney General is authorized to adjust the alien's status to that of a lawful permanent resident if, among other things, "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." Section 245(i)(2)(A) of the Act; see also Matter of Torres-Garcia, 23 I&N Dec. 866, 869 (BIA 2006).
The Immigration Judge determined that the respondent was not "admissible to the United States for permanent residence," within the meaning of section 245(i)(2) of the Act, because he had been unlawfully present in the United States for 1 year or more and was seeking admission, by means of adjustment of status, less than 10 years after he departed the United States in May 1997, which rendered him inadmissible under section 212(a)(9)(B)(i)(II). Furthermore, the Immigration Judge held that the respondent did not qualify for a waiver of inadmissibility based on family hardship under section 212(a)(9)(B)(v) of the Act. Accordingly, the Immigration Judge pretermitted the respondent's application for adjustment of status and entered an order of removal against him.
The sole issue raised on appeal is whether the Immigration Judge erred by finding the respondent inadmissible under section 212(a)(9)(B)(i)(II) of the Act.3 Specifically, the respondent asserts that section 212(a)(9)(B)(i)(II) was not intended to apply to aliens who are seeking adjustment of status from within the United States after reentering unlawfully, but rather was intended to affect only those aliens who departed the United States after being unlawfully present for 1 year or longer and who are subsequently seeking "admission" at the border less than 10 years after departure. We agree with the respondent in part.
On the one hand, we disagree with the respondent's contention that the reference in section 212(a)(9)(B)(i)(II) to an alien who "seeks admission" applies only to one who is applying for admission at the border. In the Immigration and Nationality Act, the term "admission" generally refers to adjustment of status from within the United States, as well as lawful entry at the border. See generally Matter of Shanu, 23 I&N Dec. 754 (BIA 2005); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). The present case vividly illustrates the rationale for this rule. If the term "admission" did not include "lawful admission to permanent residence" by means of adjustment of status, then section 212(a)(9)(B)(i)(II) would preclude an alien from acquiring lawful permanent residence through admission as an immigrant at the border, but would permit the very same alien to evade this preclusion by simply entering the United States unlawfully and applying for adjustment. We do not believe that Congress intends the Immigration and Nationality Act to be interpreted in a manner that would give aliens an incentive to enter the United States illegally.
On the other hand, we also take issue with the Immigration Judge's determination that the requirements of section 212(a)(9)(B)(i)(II) can be satisfied whenever an alien has accrued 1 year or more of unlawful presence before seeking admission, even if that period of unlawful presence accrued after the alien's only departure from the United States. Such an interpretation may not be strictly forbidden by the language of section 212(a)(9)(B)(i)(II), viewed in isolation. However, it does not flow naturally from the statutory language, taken in context; nor is it in keeping with the legislative purpose of the provision. In any event, to the extent that the language of section 212(a)(9)(B)(i)(II) can be viewed as ambiguous, it is incumbent upon us to resolve the ambiguity and adopt a reasonable construction of Congress's language. National Cable & Telecommunications Assn. v. Brand X Internet Services, 125 S. Ct. 2688, 2699 (2005); Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1994).
Section 212(a)(9) of the Act 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, 3009-575 (effective Apr. 7, 1996) ("IIRIRA"). It includes the following three subparagraphs: (A), which provides for the inadmissibility of any alien who has been removed from the United States or who has departed the United States while an order of removal was outstanding; (B), directly at issue in this case, which provides for the temporary inadmissibility of aliens who have been unlawfully present in the United States for certain continuous periods and who are seeking admission after having departed; and (C), which provides for the permanent inadmissibility of any alien who enters or attempts to reenter the United States without being admitted after a prior removal or after a prior aggregate period of unlawful presence of more than 1 year. See Matter of Torres-Garcia, supra, at 868 n.2.
The unifying theme of section 212(a)(9) is that all its subparagraphs seek to compound the adverse consequences of immigration violations by making it more difficult for individuals who have left the United States after committing such violations to be lawfully readmitted thereafter. In every subparagraph, Con...
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