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Matter of Javier Jesus ESPINOSA GUILLOT, Respondent
Decided December 6, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who has adjusted status to that of a lawful permanent resident pursuant to the
Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161,
as amended, has been admitted to the United States and is subject to charges of removability
under section 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (2006).
FOR RESPONDENT: Brad Alexander, Esquire, Miami, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ana Maria Candela and
Timothy M. Cole, Assistant Chief Counsels
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated February 16, 2011, an Immigration Judge terminated the
removal proceedings against the respondent. The Department of Homeland
Security (“DHS”) has appealed from that decision. The respondent opposes
the appeal. The appeal will be sustained, the removal proceedings will
be reinstated, and the record will be remanded.
The respondent is a native and citizen of Cuba who was paroled into the
United States on June 15, 1995. On June 23, 1997, he adjusted his status
to that of a lawful permanent resident pursuant to the Cuban Refugee
Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161,
as amended (“Cuban Adjustment Act”). The respondent was convicted
on December 14, 2009, of trafficking in cannabis in violation of section
893.135(1)(a) of the Florida Statutes. On the basis of this conviction, he was
charged with removability under sections 237(a)(2)(A)(iii) and(B)(i) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i)
(2006), as an alien convicted of an aggravated felony and a controlled
substance violation.
The Immigration Judge terminated the removal proceedings, finding that the
respondent had not been admitted to the United States and was therefore not
removable under section 237(a) of the Act as an alien who was “in andCite as 25 I&N Dec. 653 (BIA 2011) Interim Decision #3735
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admitted to the United States.” In reaching this conclusion, the Immigration
Judge relied on the decision of the United States Court of Appeals for the
Eleventh Circuit in Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir.
2011). The DHS has appealed, arguing that the Immigration Judge erred
in finding that the respondent’s adjustment of status was not an admission for
purposes of section 237(a) of the Act. We review this question of law
de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).
An adjustment of status generally constitutes an admission. See Matter
of Rosas, 22 I&N Dec. 616, 618-20 (BIA 1999) (holding that adjustment
of status is an admission for purposes of section 237(a)(2)(A)(iii) of the Act);
see also Matter of Alyazji, 25 I&N Dec. 397, 408 & n.9 (BIA 2011)
(explaining that for purposes of section 237(a)(2)(A)(i), the “date
of admission” is the date of adjustment of status if the respondent adjusted
status after entering the United States without inspection); Matter of Carrillo,
25 I&N Dec. 99 (BIA 2009) (holding that when determining whether an alien
whose status was adjusted pursuant to the Cuban Adjustment Act is removable
as an alien who has been convicted of a crime involving moral turpitude
committed within 5 years after the “date of admission,” the admission date
is calculated according to the rollback provision of section 1 of the Cuban
Adjustment Act, rather than the date adjustment of status was granted); Matter
of Rodarte, 23 I&N Dec. 905, 908 (BIA 2006) (holding that adjustment
is an admission for purposes of section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C.
§§ 1182(a)(9)(B)(i)(II) (2006)); Matter of Shanu, 23 I&N Dec. 754, 756-57
(BIA 2005) (holding that adjustment is an admission for purposes of section
237(a)(2)(A)(i)), overruled in part by Matter of Alyazji, 25 I&N Dec.
at 397-98.
The Immigration Judge’s reliance on Lanier v. U.S. Attorney General,
631 F.3d 1363, is misplaced. The Eleventh Circuit considered the language
of section 212(h) of the Act in that case, emphasizing that a waiver is not
available to “an alien who has previously been admitted to the United States
as an alien lawfully admitted for permanent residence.” Id. at 1365-66.
In construing this provision, the court noted that the terms “admitted” and
“lawfully admitted for permanent residence” have been expressly defined
by Congress and must be assessed to determine “the effect of each term on the
meaning of this provision as a whole.” Id. at 1366.
The phrase “lawfully admitted for permanent residence” is defined
in section 101(a)(20) of the Act, 8 U.S.C. § 1101 (a)(20) (2006), 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.”
In Lanier, the Eleventh Circuit concluded that this term of art “encompasses
all persons with lawful permanent resident status,” including those who
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while already living in the United States. Lanier v. U.S. Att’y Gen., 631 F.3d
at 1366. The court then held that the term “admitted,” which is defined
by section 101(a)(13) of the Act as “the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer,”
is limited and “does not encompass a post-entry adjustment of status.” Id.
(citing Martinez v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008)). The court
concluded that “when the statutory provision is read as a whole, the plain
language of § 212(h) provides that a person must have physically entered the
United States, after inspection, as a lawful permanent resident in order to have
‘previously been admitted to the United States as an alien lawfully admitted for
permanent residence.’” Id. at 1366-67 (emphasis added).
The Eleventh Circuit was thus relying on the particular language of section
212(h) in Lanier, and that holding should not be read to extend to other
provisions of the Act. The Cuban Adjustment Act expressly authorizes the
Attorney General to adjust the status of an alien who is a native or citizen
of Cuba and who has been “paroled into the United States” to “that of an alien
lawfully admitted for permanent residence.” Cuban Adjustment Act § 1,
80 Stat. at 1161 (emphasis added). Thus, the plain language of the statute
provides that an alien who has not otherwise been admitted may be deemed
admitted for permanent residence by operation of adjustment of status.
Further, section 237(a) of the Act, the provision under which the respondent
is charged with removability, only requires that the alien be “in and admitted
to the United States.” Thus, neither the adjustment statute nor the removal
provision applicable in this case includes language similar to the unique term
in section 212(h) that was the subject of the court’s interpretation in Lanier.
Extending the reasoning in Lanier to the broader interpretation of the term
“admission” in sections 101(a)(13)(A) and (20) of the Act could create absurd
results. See Matter of Alyazji, 25 I&N Dec. at 399 & n.2 (noting that
if adjustment of status were not considered an admission, many lawful
permanent residents would be considered inadmissible, despite their lawful
status, based on their presence in the United States without having been
admitted, and, likewise, many lawful permanent residents would be ineligible
for certain immigration benefits, such as cancellation of removal under section
240A(a) of the Act, 8 U.S.C. §§ 1229b(a) (2006)); Matter of Rosas, 22 I&N
Dec. at 621, 623 (noting that if the term “admitted” did not include those
afforded lawful permanent resident status through the adjustment process, they
would face exposure to removal under section 212(a)(6)(A)(i) and would
be ineligible for relief under section 240A(a)).
It would be equally absurd and contrary to the plain language of the statute
when considered as a whole to conclude that an alien, such as the respondent,
who has been convicted of drug trafficking is excluded from the class
of “deportable aliens” enumerated in section 237(a) of the Act. Consequently,Cite as 25 I&N Dec. 653 (BIA 2011) Interim Decision #3735
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we hold that the respondent was admitted to the United States and was
therefore properly charged with removability under section 237(a) of the Act.
Accordingly, the DHS’s appeal will be sustained, the decision of the
Immigration Judge will be vacated, and the removal proceedings will
be reinstated. The record will be remanded to the Immigration Judge for
further proceedings.
ORDER: The appeal of the Department of Homeland Securityis sustained,
the decision of the Immigration Judge is vacated, and the removal proceedings
are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.