In re Rosas-Ramirez
| Decision Date | 07 April 1999 |
| Docket Number | Interim Decision No. 3384.,File A92 125 313. |
| Citation | 22 I&N Dec. 616 |
| Parties | In re Sara Ofelia ROSAS-Ramirez, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service has appealed the Immigration Judge's July 16, 1997, order terminating removal proceedings. We will sustain the appeal, reinstate the removal proceedings, and order the respondent removed from the United States to Mexico.
The respondent initially entered the United States without inspection in 1979. In December 1989, her status was adjusted pursuant to section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (1988), to that of "an alien lawfully admitted for permanent residence." Section 245A(b) of the Act. On March 14, 1997, the respondent was convicted under California law of the offense of transportation of a controlled substance. Based on that conviction, the Service instituted removal proceedings in which it charged the respondent with deportability under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien who after admission to the United States has been convicted of an aggravated felony under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (1994), for illicit trafficking in a controlled substance.
The issue in this case presents a question of statutory construction that is of first impression: whether a respondent who enters without inspection and then adjusts her status to that of "an alien lawfully admitted to permanent residence" pursuant to section 245A of the Act has accomplished an "admission" to the United States as that term is used in section 237(a)(2)(A)(iii).
Section 237(a)(2)(A)(iii) of the Act provides: "Any alien who is convicted of an aggravated felony at any time after admission is deportable." (Emphasis added.) The Immigration Judge found that the respondent had not been convicted "after admission" because she had never been "admitted" to the United States within the definition at section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (Supp. II 1996), which provides:
The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
On appeal, the Service contends that the Immigration Judge erred by finding that the term "admission" as used in section 237(a)(2)(A)(iii) of the Act encompasses only the process described in section 101(a)(13)(A).
We agree with the Immigration Judge that the respondent's adjustment of status does not meet the literal terms of the definition of "admission" or "admitted" contained in section 101(a)(13)(A). The definition there refers to an entry after inspection and authorization. The respondent in this case did not enter the United States after inspection and authorization by an immigration officer. She entered without inspection and thereafter adjusted her status to that of "an alien lawfully admitted for permanent residence" under section 245A. Although adjustment to permanent resident status under section 245A requires that an alien demonstrate admissibility as an immigrant, and is arguably the equivalent of inspection and authorization by an immigration officer, it is less clear that such a change in status can be characterized as an "entry" into the United States.1
We do not find, however, that reference to the definition of "admission" and "admitted" in section 101(a)(13)(A) adequately answers the question of the intended scope of the term "admission" in section 237(a)(2)(A)(iii). Resolution of this issue requires consideration of the meaning of the phrase "lawfully admitted for permanent residence" in sections 101(a)(13)(C) and (20) of the Act, as well as a review of several statutory provisions enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), which govern removal proceedings. See K-Mart Corporation v. Cartier, 486 U.S. 281 (1988) (); United States v. Hockings, 129 F.3d 1069, 1071 (9th Cir. 1997) ().
Section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1994), defines the term "lawfully admitted for permanent residence" as "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." Notably, this definition encompasses both admissions to permanent resident status at the border, as defined in section 101(a)(13)(A), and admissions through adjustment to lawful permanent resident status under various provisions of the Act. The respondent, having been accorded the privilege of residing permanently in the United States as an immigrant in accordance with section 245A of the Act, has been "lawfully admitted for permanent residence" under the definition in section 101(a)(20). The question presented in this case is whether the phrase "after admission" in section 237(a)(2)(A)(iii) includes an alien, such as the respondent, who has been "lawfully admitted for permanent residence" under the definition in section 101(a)(20) pursuant to a grant of adjustment of status. We find that it does.
Our determination that aliens "lawfully admitted for permanent residence" through the adjustment process are considered to have accomplished an "admission" to the United States is supported by the language of the adjustment provisions themselves. Most notably, under the general provision for adjustment of status, the Attorney General is instructed to "record the alien's lawful admission for permanent residence." Section 245(b) of the Act, 8 U.S.C. § 1255(b) (1994). Although adjustment of a legalization applicant under section 245A is not similarly recorded, such an alien is nonetheless characterized as being "lawfully admitted for permanent residence." Section 245A(b)(1) of the Act. Other provisions for adjustment of status to permanent residence also confer upon the applicant the status of "an alien lawfully admitted for permanent residence." See sections 209(b) (refugees), 210(a)(2) (special agricultural workers), 244(a) of the Act (suspension of deportation), 8 U.S.C. §§ 1159(b), 1160(a)(2), 1254(a) (1994). The IIRIRA adds an additional provision for cancellation of removal and adjustment of status which confers the status of "an alien lawfully admitted for permanent residence" upon an alien granted such relief. Section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (Supp. II 1996). This provision also instructs the Attorney General to "record the alien's lawful admission for permanent residence" upon cancellation of removal. Section 240A(b)(3) of the Act.
Both before and after enactment of the IIRIRA, admission to permanent resident status occurred through two routes: (1) inspection and authorization at the border and (2) adjustment of status while in the United States. This dual approach to admission to permanent residence is reflected, not only in the two definitions discussed earlier, but also in section 101(a)(13)(C) of the Act, which provides that aliens "lawfully admitted for permanent residence . . . shall not be regarded as seeking an admission into the United States for purposes of the immigration laws" except in a number of situations specifically indicated.2 (Emphasis added.) The directive of section 101(a)(13)(C) regarding the treatment of aliens "lawfully admitted for permanent residence" is consistent with our interpretation that the term "admission" includes those aliens described at section 101(a)(20). In this respect, lawful permanent residents who are returning to the United States are not generally treated as seeking admission because they are treated as having already been admitted in the past.
Examination of the fundamental changes to immigration law enacted by the IIRIRA also provides insight into the meaning of the term "admission." Prior to the IIRIRA, aliens who had not made an "entry" into the United States were alleged to be excludable under the grounds of exclusion set forth in section 212(a) of the Act, 8 U.S.C. § 1182(a) (1994), and were placed in exclusion proceedings. Aliens who had made an "entry" were charged with grounds of deportability under section 241(a) of the Act, 8 U.S.C. § 1251(a) (1994), and were placed in deportation proceedings.
The IIRIRA combines what were separate exclusion and deportation proceedings into a unified removal proceeding. However, the IIRIRA retains the two separate sets of grounds under which aliens may be charged in removal proceedings. Section 237(a), formerly section 241(a), sets out grounds applicable to aliens who have been "admitted to the United States." Section 212(a) of the Act, 8 U.S.C. § 1182(a) (1994 & Supp. II 1996), specifies grounds under which aliens are...
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