Friday, April 30, 2010

Adjustment of Status to LPR Constitutes Admission for Purposes of Continuous Residence Requirement of INA § 212(h) Matter of KOLJENOVIC

An alien who entered the U.S. without inspection and later obtained lawful permanent resident (LPR) status through adjustment of status has “previously been admitted to the U.S. as an alien lawfully admitted for permanent residence” and must therefore satisfy the seven-year continuous-residence requirement of INA § 212(h) [8 USCA § 1182(h)] (2006) to be eligible for a waiver of inadmissibility, the Board of Immigration Appeals (BIA or Board) has concluded.
Matter of Koljenovic, 25 I. & N. Dec. 219 (B.I.A. Apr. 21, 2010).

The respondent, a native and citizen of Montenegro, originally entered the U.S. without inspection. He subsequently adjusted his status to that of an LPR in September 2001. In December 2004, the respondent was convicted of second-degree organized fraud under Fla. Stat. Ann. § 817.034(4)(a)(2). He was placed in removal proceedings when, in August 2006, he sought admission to the U.S. as a returning LPR. During removal proceedings, the respondent admitted that he was removable as a result of his conviction but sought a waiver under INA § 212(h). The immigration judge (IJ) denied the request, finding that the respondent lacked the requisite seven years of lawful continuous residence since he acquired his LPR status. The respondent appealed the IJ's decision, asserting that the seven-year requirement does not apply to him because he was not admitted as an LPR when he adjusted his status.

The Board, began by setting out the relevant statutory provision of INA § 212(h)(2) (2006), which 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 Board noted that the term “admission” as defined in INA § 101(a)(13)(A) [8 USCA § 1101(a)(13)(A)] (2006)--“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”--does not have that same meaning in the context of INA § 212. For purposes of INA § 212, “admitted ... as an alien lawfully admitted for permanent residence” could mean “either ... inspection and authorization to enter at the border or ... adjustment of status if the alien is already in the United States.”

The Board further opined that it has “consistently construed an adjustment of status as an ‘admission.”’ It argued that holding otherwise would in fact mean that “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” and such a finding would be inconsistent with the INA.

As further evidence that adjustment to LPR status equates with an alien having been admitted to the U.S., the Board noted that INA § 245(b) [8 USCA § 1255(b)] requires the Attorney General to “‘record the alien's lawful admission for permanent residence as of the date’ that adjustment of status was granted.”

Applying these prior holdings to the present case, the Board stated that the respondent's only admission to the U.S. occurred in 2001 when he was granted his LPR status. Finding that being granted LPR status was not an admission would in fact lead to absurd results under the legislative scheme, the Board stated.

The Board cited to legislative history in support of its conclusion. The Board noted that the language at issue in this case was added to INA § 212(h) by § 348 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 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).” The Board asserted that INA § 240A(a)(2) [8 USCA § 1229b(a)(2)] (2006) establishes a continuous residence requirement of seven years for cancellation of removal for LPRs and concluded that the Conference Report's reference to INA § 240A reflects “Congress' intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.” Further, the Board held that not treating an alien's adjustment of status as an admission that invokes the seven-year residence requirement would frustrate the legislative purpose because an alien who obtained lawful permanent residence through adjustment of status but who has not resided continuously in the U.S. for seven years and who is removable for a criminal conviction would be ineligible for cancellation of removal under INA § 240A but would be eligible for a waiver under § 212(h).

The Board concluded the opinion by focusing on the fact that time in status has historically been a factor in determining eligibility for various forms of relief. It noted that the important factor in this case is not so much how the respondent achieved admission to the U.S. but, rather, how much time has elapsed since he was admitted. The Board suggested that holding that the seven-year continuous-residence requirement did not apply to individuals like the respondent who obtained LPR status while in the U.S. would in fact allow most LPRs to “forever avoid the effect of the aggravated felony bar” in INA § 212(h), a result that would most likely be contrary to congressional intent.

The Board found that the seven-year continuous-residence requirement of INA § 212(h) applies to the respondent because his adjustment of status constitutes an admission and is the only possible date of admission given that he entered without inspection. Because the respondent does not have the requisite seven years of continuous residence, the Board found that he was ineligible for a § 212(h) waiver and dismissed the appeal.

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