Matter Of Graciela Quilantan, Respondent

• Decision Date: 28 July 2010
• Docket Number: File A095 426 631
• Citation: In re Quilantan, File A095 426 631 (B.I.A. Jul 28, 2010)
• Parties: Matter of Graciela QUILANTAN, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

Matter of Graciela QUILANTAN, Respondent

File A095 426 631

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Decided July 28, 2010

FOR RESPONDENT: Furqan Sunny Azhar, Esquire, Dallas, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Judson J. Davis, Assistant Chief Counsel

For purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that he or she has been "admitted" to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), reaffirmed.

BEFORE: Board Panel: COLE and PAULEY, Board Members. Concurring Opinion:

FILPPU, Board Member.

COLE, Board Member:

In a decision dated October 16, 2006, an Immigration Judge found the respondent removable under sections 212(a)(6)(A)(i) and (7)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(6)(A)(i) and (7)(A)(i) (2006), as an alien who entered without being inspected, admitted, or paroled and who was not in possession of a valid entry document. The Immigration Judge also pretermitted the respondent's application for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), but granted her voluntary departure. The respondent has timely appealed from that decision and has filed two briefs in support of her appeal. The Department of Homeland Security ("DHS") filed a brief in response to our request for supplemental briefing. The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings.

Page 286

I. FACTUAL AND PROCEDURAL HISTORY

The basic facts in this case are not in dispute. The respondent is a native and citizen of Mexico who entered the United States in 1993 using a valid border crossing card. She remained without departure until December 2000, when she returned to Mexico to visit family members. At some point between 1993 and 2000, she lost her border crossing card. In January 2001, she applied for a United States visitor's visa at the consulate in Mexico, but her application was denied. A few days later, on January 10, 2001, without a valid document to enter, the respondent approached the border as a passenger in a car being driven by her United States citizen friend. According to the respondent's testimony, the immigration inspector asked her friend whether he was an American citizen but did not ask her anything. The officer then waved the car through the port of entry. The respondent married a United States citizen in January 2006, and she has an approved immediate relative visa petition, which is the basis for her adjustment of status application.¹

In a Notice to Appear served on the respondent on August 22, 2005, the DHS charged her with removability under sections 212(a)(6)(A)(i) and (7)(A)(i) of the Act. The respondent denied the charges, but the Immigration Judge found her to be removable on both grounds. The Immigration Judge also found her to be statutorily ineligible for adjustment of status, because she had not been "admitted" to the United States within the meaning of section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006). Specifically, he held that section 101(a)(13)(A) requires that an alien be lawfully admitted to the United States, which requires a lawful basis to enter the country, as evidenced by a valid document that permits entry or parole. He concluded that procedural regularity at the time of entry was insufficient. The Immigration Judge further found that although the respondent had arguably been inspected, she had not been admitted and thus was statutorily ineligible to adjust status under section 245(a) as one who has been "inspected and admitted or paroled into the United States."

II. ISSUE

Under section 245(a) of the Act, an applicant for adjustment of status must have been "inspected and admitted or paroled into the United States."

Page 287

Section 101(a)(13)(A) of the Act provides that the terms "admission" and "admitted" mean "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Therefore, in order to determine if the respondent is eligible for adjustment of status, we must decide whether she was inspected and "admitted" to the United States. To do so, we must decide whether she need only show procedural regularity in her entry to establish that she was "admitted" pursuant to section 101(a)(13)(A) of the Act, or whether she must prove compliance with substantive legal requirements.

III. ANALYSIS

On appeal, the respondent argues that she was inspected and admitted to the United States for purposes of section 245(a) when she presented herself for inspection at the port of entry and the inspecting officer allowed her to enter the United States. She maintains that the term "admitted," as defined in section 101(a)(13)(A) of the Act, does not require her to have been lawfully entitled to enter the United States. Rather, she asserts that physically presenting herself for questioning constitutes an inspection, even if she volunteered no information and was not questioned by the immigration authorities. In support of her position, the respondent cites Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), where we interpreted the term "admitted," as it is used in section 245(a) of the Act, to denote only procedural regularity in an entry, not compliance with substantive legal requirements. She asserts that this interpretation remains valid and controlling in her case and that she therefore made a lawful entry into the United States after inspection and authorization. Accordingly, she seeks to have the record be remanded to give her an opportunity to apply for adjustment of status.

Following the respondent's appeal, we requested supplemental briefing from both parties on two issues. First, we requested the parties' views on the question whether, for purposes of adjustment of status under section 245(a) of the Act, the term "admitted" (as defined in section 101(a)(13)(A) of the Act to mean "lawful entry" into the United States) requires that an applicant, at the time of the claimed admission, be lawfully privileged or entitled to enter the United States. Second, we sought the parties' views on whether, in enacting section 101(a)(13)(A) of the Act in section 301(a) 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 ("IIRIRA"), Congress intended to continue to allow aliens who physically presented themselves for questioning and were permitted to pass through the port of entry to have

Page 288

satisfied the "inspected and admitted" requirement of section 245 of the Act.² On appeal, both parties agree that the term "admitted" in section 245(a) of the Act demands only procedural regularity in an entry, not compliance with substantive legal requirements, and they urge us to adopt that interpretation. In addition, the DHS argues that the respondent did not establish procedural regularity at the port of entry because she has not shown that she was admitted in a particular nonimmigrant or immigrant status.

For the following reasons, we agree with the parties that admission for purposes of adjustment of status under section 245(a) of the Act requires only procedural regularity.

A. Legislative History of Adjustment of Status Provisions

As originally enacted, section 245(a) of the Act provided, in pertinent part, as follows:

The status of an alien who was lawfully admitted to the United States as a bona fide nonimmigrant and who is continuing to maintain that status may be adjusted by the Attorney General in his discretion (under such regulations as he may prescribe to insure the application of this paragraph solely to the cases of aliens who entered the United States in good faith as nonimmigrants) to that of an alien lawfully admitted for permanent residence [if certain requirements have been met].

Immigration and Nationality Act of June 27, 1952, ch. 477, § 245(a), 66 Stat. 163, 217 (emphasis added). Thus, the statute originally provided adjustment of status to aliens who were lawfully admitted to the United States as bona fide nonimmigrants and continued to maintain that status. See Matter of Pires Da Silva, 10 I&N Dec. 191, 192 (BIA 1963), overruled on other grounds by Tibke v. INS, 335 F.2d 42 (2d Cir. 1964), and modified, Matter of Krastman, 11 I&N Dec. 720 (BIA 1966).

Congress subsequently amended the statute in 1958 to provide as follows:

The status of an alien who was admitted to the United States as a bona fide nonimmigrant may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence [if certain requirements have been met].

Act of Aug. 21, 1958, Pub. L. No. 85-700, 72 Stat. 699 (emphasis added). Thus, Congress dropped the requirement of lawful admission and maintenance of nonimmigrant status, but adjustment of status still remained available only

Page 289

to aliens who had been admitted as bona fide nonimmigrants. See Matter of Pires Da Silva, 10 I&N Dec. at 192.

In 1960, Congress further amended section 245(a) of the Act to remove the requirement that an alien have been admitted as a bona fide nonimmigrant. The language of the statute was amended to read as follows:

The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence [if certain requirements have been met]

...