Cite as 25 I&N Dec. 219 (BIA 2010) Interim Decision #3677
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Matter of Safet KOLJENOVIC, Respondent
File A078 831 534 – Newark, New Jersey
Decided April 21, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who entered the United States without inspection and later obtained lawful
permanent resident status through adjustment of status has “previously been admitted to the
United States as an alien lawfully admitted for permanent residence” and must therefore
satisfy the 7-year continuous residence requirement of section 212(h) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(h) (2006), to be eligible for a waiver of inadmissibility.
FOR RESPONDENT: Henry A. Tesoroni, Esquire, Newark, New Jersey
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated June 24, 2008, an Immigration Judge found the
respondent removable on his own admissions under section 212(a)(2)(A)(i)(I)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006),
as an alien convicted of a crime involving moral turpitude, and denied his
application for a waiver of inadmissibility under section 212(h) of the Act.
The respondent has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Montenegro. He originally
entered the United States without inspection and adjusted his status to that
of a lawful permanent resident on September 24, 2001. He was convicted
of second-degree organized fraud under section 817.034(4)(a)(2) of the Florida
Statutes on December 20, 2004. The respondent was placed in removal
proceedings when he arrived in the United States seeking admission
as a returning lawful permanent resident on August 20, 2006. Although he has
conceded that he is removable, he requested a waiver of inadmissibility under
section 212(h) of the Act. The Immigration Judge denied the waiver, finding
that the respondent was ineligible because he was lawfully admitted for
permanent residence when he adjusted his status and he did not have theCite as 25 I&N Dec. 219 (BIA 2010) Interim Decision #3677
1
This appeal presents a question of law, which we review de novo. 8 C.F.R.
§ 1003.1(d)(3)(ii) (2010); see also Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). The
respondent’s application was filed after May 11, 2005, and is therefore governed by the
provisions of the REAL ID Act. See Matter of Almanza, 24 I&N Dec. 771, 774 (BIA 2009).
2 Section 101(a)(13)(A) of the Act 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.
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requisite 7 years of lawful continuous residence since the date of his
adjustment of status. On appeal the respondent argues that this requirement
does not apply to him because he was not “admitted” as a lawful permanent
resident when he adjusted his status.1
II. ISSUE
The issue presented in this appeal is whether the respondent “has previously
been admitted to the United States as an alien lawfully admitted for permanent
residence” and must therefore satisfy the 7-year lawful continuous residence
requirement of section 212(h) of the Act to be eligible for a waiver.
III. ANALYSIS
In relevant part, section 212(h)(2) of the Act 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 respondent originally entered the United States without inspection.
He became a lawful permanent resident by adjusting his status under section
245 of the Act, 8 U.S.C. § 1255 (2006). The respondent’s adjustment of status
is not an “admission” as that term is literally defined in section 101(a)(13)(A)
of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006).2
However, the limited
definitions of the terms “admission” and “admitted” in section 101(a)(13)(A)
do not resolve the meaning of the phrase “admitted . . . as an alien lawfully
admitted for permanent residence” in section 212(h) of the Act. See Matter
of Rosas, 22 I&N Dec. 616 (BIA 1999) (en banc).Cite as 25 I&N Dec. 219 (BIA 2010) Interim Decision #3677
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An alien may be admitted as a lawful permanent resident either
by inspection and authorization to enter at the border or by adjustment of status
if the alien is already in the United States. Adjustment of status is essentially
a proxy for inspection and permission to enter at the border, which
is given as a matter of administrative grace. “As we have repeatedly held,
an adjustment of status is merely a procedural mechanism by which an alien
is assimilated to the position of one seeking to enter the United States.” Matter
of Rainford, 20 I&N Dec. 598, 601 (BIA 1992). Sections 245(a) and (i) and
section 245A(b)(1) of the Act, 8 U.S.C. § 1255a(b)(1) (2006), plainly
authorize the Attorney General to adjust an alien’s status “to that of an alien
lawfully admitted for permanent residence” and thus provide that adjustment
applicants are to be treated as if they are being “admitted.” (Emphasis added.)
For these reasons, it is not necessary that section 101(a)(13) of the Act
specifically include adjustment of status in the definition of an “admission.”
We have consistently construed an adjustment of status as an “admission.”
In Matter of Rosas, 22 I&N Dec. 616, we held that aliens who are lawfully
admitted for permanent residence through the adjustment of status process are
considered to have effectuated an “admission” to the United States. In that
case, the respondent entered the United States without inspection and
thereafter adjusted her status to that of a lawful permanent resident pursuant
to section 245A of the Act. The Immigration Judge found that her adjustment
of status was not an “admission” within the meaning of section 101(a)(13)
of the Act and that she was therefore not deportable as an alien convicted
of an aggravated felony at any time after admission. We disagreed, noting that
if that were the case, 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. We concluded that such an interpretation of the
statute would be inconsistent with the overall structure of the Act as it has been
amended by the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).
As we recognized in Matter of Shanu, 23 I&N Dec. 754 (BIA 2005),
vacated, Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir.
2006), this interpretation would also be contrary to section 245(b) of the Act,
which instructs the Attorney General to “record the alien’s lawful admission
for permanent residence as of the date” that adjustment of status was granted.
We therefore extended the rationale of Matter of Rosas, finding that an alien
who has been accorded lawful permanent resident status is deemed to have
been “admitted” as of the date of the adjustment of status. The alien in that
case was initially admitted as a nonimmigrant visitor for pleasure and then
subsequently adjusted his status to that of a lawful permanent resident.
As in Rosas, we interpreted the term “admission” in the context of theCite as 25 I&N Dec. 219 (BIA 2010) Interim Decision #3677
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removability provisions in section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2)
(2006), and concluded that the respondent was deportable because he was
convicted of a crime involving moral turpitude within 5 years of his
adjustment of status.
Applying Matter of Rosas to the facts of this case, it is clear that the
respondent’s only “admission” into the United States was pursuant to his 2001
adjustment of status. The respondent, like the alien in Rosas, entered without
inspection, so this is not a case where alternative dates of admission are
possible. If his 2001 adjustment of status is not considered an admission,
he would be in the absurd position of being a lawful permanent resident
without ever having been “admitted” in that status and thus could be subject
to inadmissibility under section 212(a)(6)(A)(i) of the Act and ineligible for
various forms of relief. See Matter of Rosas, 22 I&N Dec. at 621-23; see also
Matter of Briones, 24 I&N Dec. 355, 365 (BIA 2007) (stating that a statute
should not be interpreted to reach an absurd result). Therefore, we conclude
that the respondent’s adjustment of status was an “admission” within the
meaning of the Act.
The pertinent legislative history supports our conclusion. Section 212(h)
of the Act was amended by section 348 of the IIRIRA, 110 Stat. at 3009-639,
to include the language at issue in this case. 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).” H.R. Rep. 104-828, at 228 (1996) (Conf. Rep.) (Joint
Explanatory Statement), 1996 WL 563320. Section 240A(a)(2) of the Act,
8 U.S.C. § 1229b(a)(2) (2006), sets forth a continuous residence requirement
of 7 years for cancellation of removal for lawful permanent residents.
We consider the Conference Report’s reference to section 240A of the Act
to reflect Congress’ intent to create congruity in the residence requirements for
these two forms of relief, both of which are available to lawful permanent
residents.
An interpretation of section 212(h) of the Act that does not treat an alien’s
adjustment of status as an admission that invokes the 7-year residence
requirement would frustrate this legislative purpose. An alien who
is removable for a criminal conviction, who obtained lawful permanent
residence through adjustment of status, and who has not resided continuously
in the United States for 7 years would be ineligible for cancellation of removal
under section 240A but would remain eligible for a section 212(h) waiver.
The legislative history of the IIRIRA indicates that Congress did not intend
such a result.
This is particularly so in a case such as this where the alien entered the
United States illegally and later adjusted his status. Congress presumably didCite as 25 I&N Dec. 219 (BIA 2010) Interim Decision #3677
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not intend for an alien who entered the United States illegally and was
afforded the privilege of adjustment of status to be able to avoid the
restrictions contained in section 212(h) of the Act, when those very restrictions
would apply if the alien had gone through consular processing to be admitted
as a lawful permanent resident.
Additionally, section 101(a)(13) of the Act was amended by the IIRIRA
to define the terms “admission” and “admitted” in order to address
complexities in the law resulting from the United States Supreme Court’s
decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963). See H.R. Rep. No.
104-469(I), at 225-26 (1996). It was not intended to differentiate
an adjustment of status from an admission after inspection at the border.
Likewise it was not intended to modify the recognition in Matter of Rainford,
20 I&N Dec. 598, that adjustment of status is the functional equivalent
of inspection and authorization to enter at the border.
The respondent cites Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008),
to support his claim that he is eligible for a waiver under section 212(h) of the
Act. In that case, the alien was admitted after inspection as a nonimmigrant
visitor and subsequently adjusted his status to that of a lawful permanent
resident under section 245A of the Act. The United States Court of Appeals
for the Fifth Circuit rejected the application of Matter of Rosas and held that
“for aliens who adjust post-entry to LPR status, § 212(h)’s plain language
demonstrates unambiguously Congress’ intent not to bar them from seeking
a waiver of inadmissibility.” Id. at 546. However, Martinez did not consider
whether the same rule would apply in a case like the respondent’s where the
alien was not previously admitted. Indeed, if we were to literally apply the
Fifth Circuit’s holding to this case, the respondent would have no admission
date at all. Given that the Fifth Circuit did not have to confront the factual
scenario presented here, we are not persuaded by respondent’s contention that
Martinez should control.
Our conclusion receives further support from the Fourth Circuit’s decision
in Aremu v. Department of Homeland Security, 450 F.3d 578. In that case, the
court explicitly noted that finding adjustment of status to be an admission
might be justified because of the possible absurdities that would result from
a contrary holding in cases such as this, where the alien has never been
admitted within the meaning of section 101(a)(13)(A) of the Act. The court
made this observation despite its disagreement with our holding in Matter
of Shanu that the date an alien is lawfully adjusted for permanent residence
also constitutes a “new” date of admission when the alien had previously been
admitted in another status.
We reemphasize that not construing an alien’s adjustment to lawful
permanent residence to be an admission would have problematic consequences
for other aliens. As we noted in Matter of Rosas, 22 I&N Dec. at 623, if weCite as 25 I&N Dec. 219 (BIA 2010) Interim Decision #3677
3 For example, in fiscal years 2007 to 2009, close to 60 percent of those who obtained
lawful permanent resident status did so through the process of adjustment of status. See
Randall Monger, Office of Immigration Statistics, Department of Homeland Security,
Annual Flow Report – U.S. Legal Residents: 2009 2, Table 1 (Apr. 2010), available
at http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf.
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do not consider adjustment to be an admission, “an alien who entered without
inspection and resided in this country for many years as a permanent resident
after adjustment of status under section 245A would be ineligible for relief
under sections 212(c) or 240A(a) because he or she would not be considered
to have been ‘admitted’ for permanent residence.” We cannot read the same
statutory language one way in the context of section 212(h) relief and
another way in the context of cancellation of removal. If adjustment of status
under section 245(a) of the Act did not constitute an admission for purposes
of section 212(h), it follows that it also would not be an admission for purposes
of cancellation of removal.
Resolving this interpretative dilemma as we do here is far more consistent
with the overall structure of the Act regarding the eligibility of aliens for relief
under the relevant provisions of section 212(h) and for other analogous relief,
in particular, cancellation of removal under section 240A(a). Time in status
has long been a factor in determining eligibility for relief, such as a waiver
under former section 212(c) of the Act, 8 U.S.C. 1182(c) (1988), which
required 7 years of “lawful unrelinquished domicile.” In 1996, Congress
established various “stop-time” rules for calculating the period of continuous
residence or continuous physical presence required by sections 212(h) and
240A. See, e.g., Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004).
Specifically, for relief under section 212(h), the “stop-time” rule is triggered
by the initiation of proceedings. See Matter of Rotimi, 24 I&N Dec. 567 (BIA
2008).
The critical factor is not whether one acquired lawful permanent resident
status through admission as an immigrant or through adjustment of status
in the United States but is, instead, the time accrued in such status. A contrary
rule would not only allow aliens who have been admitted to lawful permanent
resident status through the process of adjustment to avoid the effect of the
“stop-time” rule. It would also allow such aliens, who currently comprise
a substantial majority of all those admitted to lawful permanent resident
status,3
to forever avoid the effect of the aggravated felony bar in section
212(h). There is no indication that Congress intended the limitations it built
into section 212(h) to apply to those aliens whose previous admission to lawful
permanent resident status occurred through the overseas consular process, but
not to the majority of aliens whose admission occurred through adjustment
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Therefore, the critical concern is the alien’s length of residence in lawful
permanent resident status, rather than the mechanism by which he or she was
“admitted” to that status. The respondent is ineligible for section 212(h) relief
because he engaged in conduct that rendered him inadmissible within a few
years of his adjustment. Another alien who engaged in similar conduct more
than 7 years after adjustment would be eligible for a waiver. For example,
under our analysis a lawful permanent resident who has lived in the United
States for more than 7 years and becomes inadmissible because of a criminal
conviction may have an opportunity to remain in this country, even where the
conviction would otherwise result in removal, whereas an alien with a similar
conviction who recently became a lawful permanent resident would not. Thus
the emphasis is on the fact that the alien has been residing in this country
as a lawful permanent for a long period of time, which has traditionally been
considered a significant equity under the Act. See, e.g., Matter of Singh,
24 I&N Dec. 331, 335 (BIA 2007); Matter of Marin, 16 I&N Dec. 581, 584-85
(BIA 1978).
IV. CONCLUSION
The 7-year continuous residence requirement of section 212(h) of the Act
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 7 years
of continuous residence, he is ineligible for a section 212(h) waiver.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.