Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
734
Matter of Miguel LEMUS-Losa, Respondent
Decided March 19, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Adjustment of status under section 245(i) of the Immigration and Nationality Act,
8 U.S.C. § 1255(i) (2006), is unavailable to an alien who is inadmissible under section
212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006), absent a waiver.
Matter of Lemus, 24 I&N Dec. 373 (BIA 2007), clarified.
FOR RESPONDENT: Rekha Sharma-Crawford, Esquire, Kansas City, Missouri
FOR THE DEPARTMENT OF HOMELAND SECURITY: James A. Lazarus, Associate
Legal Advisor
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated December 16, 2005, an Immigration Judge ordered the
respondent removed from the United States after finding him ineligible for
adjustment of status under section 245(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1255(i) (2000). According to the Immigration Judge, section
245(i) adjustment is unavailable to aliens, like the respondent, who are
inadmissible to the United States under section 212(a)(9)(B)(i)(II) of the Act,
8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000), and ineligible for a waiver under
section 212(a)(9)(B)(v). We dismissed the respondent’s appeal from the
Immigration Judge’s removal order in a precedent decision dated
November 29, 2007. Matter of Lemus, 24 I&N Dec. 373 (BIA 2007).
The record is now before us on remand from the United States Court
of Appeals for the Seventh Circuit, which reviewed our prior decision and
found it deficient in various respects. Lemus-Losa v. Holder, 576 F.3d 752,
761 (7th Cir. 2009). After remand, we requested and received supplemental
briefs from the parties. Upon consideration of the Seventh Circuit’s decision
and the very helpful arguments set forth in the parties’ supplemental briefs,
we respectfully reaffirm our prior determination that an alien’s inadmissibility
under section 212(a)(9)(B)(i)(II) precludes him from qualifying for section
245(i) adjustment of status absent a waiver. We nevertheless deem it prudentCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
1 The respondent filed his application for adjustment of status in September 2005. Because
the respondent applied for adjustment of status after May 11, 2005, our review of his appeal
is governed by amendments to the Act brought about by passage of the REAL ID Act
of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302.
735
to remand the record for the Immigration Judge to address several emergent
issues bearing on the respondent’s inadmissibility.
I. FACTUAL AND PROCEDURAL HISTORY
The pertinent facts are undisputed. In 1998 or 1999 the respondent,
a native and citizen of Mexico, entered the United States without inspection,
after which he lived in the United States for approximately 2 years without
lawful status. In 2001 or thereabouts, the respondent departed from the
United States and returned to Mexico. In 2003, the respondent reentered the
United States, again without inspection, and has remained here in unlawful
status ever since. These removal proceedings commenced in 2005.
During his proceedings in Immigration Court, the respondent conceded
removability from the United States under section 212(a)(6)(A)(i) of the Act
for being present without having been admitted or paroled, but he applied
for adjustment of status under section 245(i) of the Act.1 To qualify for
section 245(i) adjustment, an applicant must be “physically present in the
United States” and must demonstrate that he or she is “admissible to the
United States for permanent residence,” among other things. Sections
245(i)(1), (2)(A) of the Act. The respondent is obviously “physically present
in the United States” as a result of his 2003 reentry, but the Immigration Judge
found that he is not “admissible . . . for permanent residence” because his
history of immigration violations rendered him inadmissible under section
212(a)(9)(B)(i)(II) of the Act, which provides as follows:
Any alien (other than an alien lawfully admitted for permanent residence) who—
. . .
(II) has been unlawfully present in the United States for one year or more, and
who again seeks admission within 10 years of the date of such alien’s departure
or removal from the United States, is inadmissible.
Despite the unambiguous “admissibility” requirement of section
245(i)(2)(A), the respondent maintains that inadmissibility under section
212(a)(9)(B)(i)(II) of the Act should not be an impediment to his adjustment
of status because inadmissibility arising from “unlawful presence” in the
United States is precisely the sort of violation that section 245(i) was designed
to forgive. In effect, the respondent views section 245(i) of the ActCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
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as embodying an implicit exception to the admissibility requirement for aliens
who are covered by section 212(a)(9)(B)(i)(II) of the Act. We rejected that
argument in our prior decision, for a number of reasons that bear further
explanation in light of the Seventh Circuit’s remand.
II. ANALYSIS
A. Section 245(i) of the Act
To qualify for adjustment of status under section 245(a) of the Act, an alien
must prove that he has been “inspected and admitted or paroled” into the
United States. Aliens who satisfy this inspection and admission or parole
requirement may still be ineligible for adjustment of status, however, if they
are covered by any of the exclusion clauses enumerated in section 245(c)
of the Act. As we have previously explained, section 245(i) was enacted
in 1994 to provide a temporary exception to these general limitations
on eligibility for adjustment of status, thereby providing a path to lawful
permanent residence for aliens who had “entered the United States without
inspection” and were willing to pay a surcharge. See Matter of Briones,
24 I&N Dec. 355, 360-62 (BIA 2007) (discussing the purpose and history
of section 245(i)).
Applicants for section 245(i) adjustment have always been required
to prove that they are “admissible to the United States for permanent
residence,” see section 245(i)(2)(A) of the Act, meaning that they must prove
either that they are not inadmissible under any of the various paragraphs
of section 212(a) of the Act or that they are eligible for a waiver of any
applicable ground of inadmissibility. 8 C.F.R. § 1245.10(b)(3) (2011). For
the first few years after section 245(i) was enacted, this admissibility
requirement was no impediment to adjustment for aliens who had “entered
without inspection” because entry without inspection was then a ground
of deportability rather than of inadmissibility. See Matter of Briones,
24 I&N Dec. at 362-63.
In 1996, however, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110
Stat. 3009-597 (“IIRIRA”), which replaced the “entry without inspection”
deportability ground with a new inadmissibility ground pertaining to aliens
who are present in the United States without having been admitted or paroled.
See section 212(a)(6)(A)(i) of the Act. A paradoxical effect of this amendment
was seemingly to make entry without inspection “both a qualifying and
a disqualifying condition for adjustment of status” under section 245(i).
Matter of Briones, 24 I&N Dec. at 362. In addition, the IIRIRA created two
new inadmissibility grounds covering aliens who seek admission to,Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
2 The reasoning embodied in Matter of Briones has been affirmed or adopted by every court
that has reviewed it, including the Seventh Circuit. See Sarango v. Att’y Gen. of U.S., 651
F.3d 380, 387 (3d Cir. 2011); Padilla-Caldera v. Holder, 637 F.3d 1140, 1152 (10th Cir.
2011); Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th Cir. 2010); Ramirez v. Holder,
609 F.3d 331, 333-34 (4th Cir. 2010); Gonzalez-Balderas v. Holder, 597 F.3d 869, 870
(7th Cir. 2010); Mora v. Mukasey, 550 F.3d 231, 232 (2d Cir. 2008); Ramirez-Canales
v. Mukasey, 517 F.3d 904, 908 (6th Cir. 2008); Mortera-Cruz v. Gonzales, 409 F.3d 246,
253 (5th Cir. 2005). Although the Ninth Circuit initially agreed, it has recently ordered the
issue to be reheard en banc. Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011),
reh’g granted, No. 09-72603, 2012 WL 678287 (9th Cir. Mar. 1, 2012).
737
or unlawfully reenter, the United States after having committed previous
immigration violations. Sections 212(a)(9)(B), (C) of the Act. However,
it included no conforming amendments to clarify how these new
inadmissibility grounds would affect aliens’ eligibility for section 245(i)
adjustment.
In Matter of Briones, we concluded that although the section 245(i)(2)(A)
admissibility requirement was unambiguous, it could not be applied to make
section 245(i) adjustment unavailable to aliens who are inadmissible solely
under section 212(a)(6)(A)(i) of the Act, because such an interpretation
“would render the language of section 245(i) so internally contradictory
as to effectively vitiate the statute, an absurd result that Congress is presumed
not to have intended.” 24 I&N Dec. at 365 (citing Demarest v. Manspeaker,
498 U.S. 184, 190-91 (1991)). We made clear, however, that this narrow
“absurdity” exception applied only to section 212(a)(6)(A)(i). Aliens who
were inadmissible under other sections, such as section 212(a)(9)(C)(i)(I),
remained subject to the plain language of section 245(i)(2)(A) because
applying the “admissibility” requirement to them did not lead to absurd results
or defeat the purpose for which section 245(i) was enacted. Id. at 366-70;
see also Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010) (reaffirming
Matter of Briones).2
In our prior decision in this case, we concluded that “much of our
reasoning in Matter of Briones . . . applies to aliens, like the respondent, who
are inadmissible under section 212(a)(9)(B)(i)(II) of the Act.” Matter
of Lemus, 24 I&N Dec. at 378. We observed at the outset that “the plain
language of section 245(i)(2)(A) unambiguously requires an applicant for
adjustment of status to prove that he is ‘admissible to the United States for
permanent residence,’” and we concluded that “[a]liens who are inadmissible
under section 212(a)(9)(B)(i)(II) necessarily fail to meet that requirement,
absent an available waiver” under section 212(a)(9)(B)(v) of the Act. Id.
We also noted that applying section 245(i)(2)(A) to aliens who are
inadmissible under section 212(a)(9)(B)(i)(II) does not vitiate the statuteCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
3 As the Department of Homeland Security pointed out in its supplemental brief, Congress
also passed a 2008 amendment to section 245(h)(2)(A) of the Act which expressly provides
that inadmissibility under section 212(a)(9)(B) is no impediment to adjustment of status
for certain “special immigrants.” See William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, § 235(d)(3), Pub. L. No. 110-457, 122 Stat. 5044, 5080.
No similar exception has ever been enacted for section 245(i) adjustment applicants.
738
or “lead to absurd consequences, as it would if we applied that [admissibility]
requirement to aliens who are inadmissible under section 212(a)(6)(A)(i) for
being present in the United States without having been admitted or paroled,”
since the class of aliens described in section 212(a)(9)(B)(i)(II) is much
narrower than that covered by section 212(a)(6)(A)(i). Id. at 378.
Moreover, as in Matter of Briones, we deemed it important that in every
otherinstance where Congress had extended eligibilityfor adjustment of status
to classes of aliens who were unlawfully present in the United States,
it had seen the necessity of expressly negating the applicability of section
212(a)(9)(B)(i)(II) byauthorizing waivers of inadmissibility. Matter of Lemus,
24 I&N Dec. at 378 & n.5. Congress provided for such waivers in both the
Nicaraguan Adjustment and Central American Relief Act, Pub. L. No.
105-100, 111 Stat. 2193 (1997), amended by Pub. L. No. 105-139, 111 Stat.
2644 (1997) (“NACARA”), and the Haitian Refugee Immigration Fairness Act
of 1998, Pub. L. No. 105-277, 112 Stat. 2681-538 (“HRIFA”). What is more,
Congress created those NACARA and HRIFA waivers through the LIFE Act
Amendments of 2000, Pub. L. No. 106-554, 114 Stat. 2763 (“LIFE Act
Amendments”) (effective as if included in the enactment of the Legal
Immigration Family Equity Act, Pub. L. No. 106-553, 114 Stat. 2762 (2000)).
The LIFE Act amendments also made substantial changes to section 245(i),
but inclusion of a section 212(a)(9)(B) waiver was not among them.
This pattern of legislative activity has led us to conclude, first,
that Congress understood inadmissibility under section 212(a)(9)(B)
to be an impediment to adjustment of status that could only be overcome
by a waiver (even when the form of adjustment of status being requested was
reserved for aliens who were unlawfully present in the United States); second,
that Congress knew how to create such waivers when it so desired; and third,
that the absence of such a waiver for section 245(i) adjustment applicants was
thus a deliberate omission.3
Indeed, since Congress has already authorized
a waiver of inadmissibility under section 212(a)(9)(B)(v) of the Act for aliens
covered by section 212(a)(9)(B)(i)(II), there is good reason to believe that
Congress understands that waiver to be the exclusive means by which
an applicant for adjustment of status can overcome inadmissibility under
section 212(a)(9)(B).Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
4
Section 212(a)(9)(C)(i)(I) of the Act provides as follows:
Any alien who—
(I) has been unlawfully present in the United States for an aggregate period
of more than 1 year . . .
. . .
and who enters or attempts to reenter the United States without being admitted
is inadmissible.
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B. Seventh Circuit’s Decision
To date, the United States Courts of Appeals for the Third and Tenth
Circuits have held that Matter of Lemus embodies a reasonable interpretation
of an ambiguous statute, thereby entitling it to deference under Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984);
see also Cheruku v. Att’y Gen. of U.S., 662 F.3d 198, 207 (3d Cir. 2011);
Herrera-Castillo v. Holder, 573 F.3d 1004, 1008 (10th Cir. 2009),
cert. denied, 130 S. Ct. 3505 (2010). The Seventh Circuit declined to defer
to Lemus, however, based on its judgment that we failed to “pay sufficient
heed” to significant differences between section 212(a)(9)(B)(i)(II), which
is at issue here, and section 212(a)(9)(C)(i)(I) of the Act, the ground
of inadmissibility addressed in Matter of Briones, which was decided on the
same day.4 Lemus-Losa v. Holder, 576 F.3d at 761.
As the Seventh Circuit explained, sections 212(a)(9)(B)(i)(II) and (C)(i)(I)
are both “triggered by an initial sojourn in the United States that was
unlawful,” but they are otherwise substantially different. See id. at 757.
Specifically, section 212(a)(9)(C)(i)(I) applies solelyto recidivist immigration
violators—that is, to aliens “who enter[ ] or attempt[ ] to reenter the
United States without being admitted” despite previous immigration violations,
whereas section 212(a)(9)(B)(i)(II) applies to an ostensibly less culpable class
of aliens who have accrued 1 year or more of unlawful presence in the
United States and “again seek[] admission” within 10 years after departing.
Id. at 758 (expressing the view that the Board should not “equate the unlawful
re-entrant with someone who is ‘seeking admission’”). Indeed, the
Seventh Circuit opined that section 212(a)(9)(B)(i)(II) actually bears a closer
resemblance to section 212(a)(6)(A)(i) of the Act (which pertains to first-time
unlawful entrants) than it does to section 212(a)(9)(C)(i)(I): “[I]f someone
is ‘seeking admission’ to the United States . . . and has thus demonstrated
that he is willing to play by the rules, he is no different from the alien
who is physically present in the United States ‘without inspection’
but who is entitled to apply for LIFE Act relief.” Id. at 761. Because the
Board had not taken sufficient care to address the differences betweenCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
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sections 212(a)(9)(B)(i)(II) and (C)(i)(I) of the Act—or, for that matter,
between sections 212(a)(9)(B)(i)(II) and (6)(A)(i)—the court remanded the
record to us for further proceedings, albeit without specific instructions.
Matter of Lemus is a Board precedent with nationwide applicability, the
purpose of which is to ensure that section 245(i) of the Act is administered
uniformly throughout the country. The Seventh Circuit’s decision has cast
doubt on its validity, however, resulting in a division of authority among the
circuits. We therefore take this opportunity to clarify our jurisprudence,
considering the points made in the Seventh Circuit’s decision remanding the
case.
C. Interplay Between Sections 212(a)(9)(B)(i)(II) and 245(i)
The issue before us is one of statutory construction, pertaining to the
interplay of sections 212(a)(9)(B) and 245(i) of the Act. As in any other case
of statutory interpretation, the touchstone of our analysis is the plain language
of the statute. Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (citing Hughes
Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)). It is presumed that
Congress “says in a statute what it means and means in a statute what it says
there.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S.
1, 6 (2000) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254
(1992)) (internal quotation marks omitted). Thus, we cannot deviate from
the unambiguous meaning of statutory language, except in those rare
circumstances where strict adherence to the text would lead to an absurd
or bizarre result that is “demonstrably at odds with the intentions of its
drafters.” Demarest v. Manspeaker, 498 U.S. at 190 (quoting Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)) (internal quotation
marks omitted).
As we noted in our prior decision, section 245(i)(2)(A) of the Act
unambiguously requires applicants for section 245(i) adjustment to prove that
they are “admissible to the United States for permanent residence.” Matter
of Lemus, 24 I&N Dec. at 378. If we apply this language literally, it follows
that any alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act
is ineligible for adjustment, absent a waiver under section 212(a)(9)(B)(v).
Thus, the question we must decide is whether interpreting the statutory
language literally leads to results that are “demonstrably at odds” with
congressional intent. We conclude that it does not.Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
741
1. Section 212(a)(9)(B)(i)(II) Is Not Coterminous With
Section 212(a)(6)(A)(i)
We held in Briones that it would be absurd to apply the section
245(i)(2)(A) admissibility requirement to aliens who are inadmissible solely
under section 212(a)(6)(A)(i) of the Act, since that class of aliens is virtually
coextensive with those who have “entered without inspection.” Essential
to that holding was the fact that “entry without inspection” is expressly
identified by the Act as a condition that section 245(i) was designed
to ameliorate. As the DHS has argued persuasively in its supplemental brief,
however, the conduct that renders aliens inadmissible under section
212(a)(9)(B)(i)(II) does not remotely resemble “entry without inspection”
or any other condition waived by section 245(i).
As a threshold matter, we consider it important that an alien need never
have entered the United States without inspection in order to become
inadmissible under section 212(a)(9)(B)(i)(II). Inadmissibility under this
section is triggered when an alien has (1) accrued a relatively lengthy period
of “unlawful presence” in the United States, (2) departed this country, and then
(3) sought admission less than 10 years after departing. See Matter of Rodarte,
23 I&N Dec. 905, 908-10 (BIA 2006). “Unlawful presence” includes presence
accrued after lawful admission (such as where an alien overstays a temporary
nonimmigrant visa); it is not limited to periods accrued after entry without
inspection. Furthermore, an alien can “again seek[] admission” within the
meaning of section 212(a)(9)(B)(i)(II) without entering the United States
unlawfully—for example, by applying for a visa at a consulate abroad.
Since entry without inspection is not a prerequisite to inadmissibility under
section 212(a)(9)(B)(i)(II), we consider it unlikely that Congress would have
understood aliens covered by that section to be eligible for section 245(i)
adjustment, absent an available waiver under section 212(a)(9)(B)(v).
For purposes of section 245(i), perhaps the most important characteristic
shared by all aliens who have “entered without inspection” is that they
are, by definition, physically present inside the United States. Indeed,
section 245(i)(1) of the Act makes physical presence in the United States
an independent eligibility criterion for adjustment. Yet section
212(a)(9)(B)(i)(II) covers many aliens who are not physically present in the
United States at all. On the contrary, it requires an alien to have departed from
the United States before becoming inadmissible but does not require him
to reenter. It is thus an alien’s past or present departure from the
United States, rather than his current presence within the country, that
fundamentallydefines him as a member of the section 212(a)(9)(B)(i)(II) class.
Because the statutory language contemplates that many aliens covered by that
section will be outside the United States and seeking admission from abroad,Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
742
we find it implausible to believe that Congress had such aliens in mind when
making section 245(i) adjustment available to aliens who are physically
present inside the United States after entering without inspection.
To recapitulate, the class of aliens covered by section 212(a)(9)(B)(i)(II)
of the Act does not correspond with any of the classes section 245(i) was
designed to benefit. The conduct that triggers inadmissibility under section
212(a)(9)(B)(i)(II) resembles neither “entry without inspection” nor any of the
exclusionary conditions described in section 245(c) of the Act. Accordingly,
the reasons for extending eligibility for section 245(i) adjustment to one-time
unlawful entrants do not apply to those who have departed the country after
accruing a substantial period of unlawful presence.
2. Relationship Between Sections 212(a)(9)(B)(i)(II) and (C)(i)(I)
Because our prior decision relied so heavily on the analysis set forth
in Briones, some of our language suggested that section 212(a)(9)(B)(i)(II)
is practically the same as section 212(a)(9)(C)(i)(I), the ground
of inadmissibility at issue in Briones. On the contrary, sections
212(a)(9)(B)(i)(II) and (C)(i)(I) are substantially different, and we agree with
the Seventh Circuit that immigration adjudicators should not draw simplistic
equivalences between them. To the extent that we may have treated these
sections as equivalent in our prior decision, we regret our imprecision and take
this opportunity to refine our analysis. In doing so, however, we ultimately
conclude that the differences between sections 212(a)(9)(B)(i)(II) and (C)(i)(I)
do not justify differential treatment under section 245(i) of the Act.
First and foremost, we note that section 212(a)(9)(C)(i)(I) is limited
in scope to recidivist immigration violators, that is, to aliens who have
reentered the United States unlawfully after a prior period of unlawful
presence. In contrast, the primary focus of section 212(a)(9)(B)(i)(II) of the
Act is not on recidivists, but rather on those who departed the United States
after a period of unlawful presence or a prior removal and who subsequently
seek “admission.” Thus, although section 212(a)(9)(B)(i)(II) is designed
to make it more difficult for aliens with prior immigration violations to return
to the United States, an alien need not actually have reentered unlawfully
to be inadmissible. To the extent our prior decision suggested otherwise,
we now clarify it.
In distinguishing between the classes of aliens covered by sections
212(a)(9)(B)(i)(II) and (C)(i)(I), the Seventh Circuit found it significant that
aliens covered by the former section are ostensibly “willing to play by the
rules” because they are “seek[ing] admission” after departure, rather than
simply reentering unlawfully. Lemus-Losa v. Holder, 576 F.3d at 761. With
all respect, however, we consider that line of reasoning to proceed fromCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
5 As the DHS explains in its supplemental brief, however, deeming an applicant
for admission to be “playing by the rules” is subject to a significant qualification when
dealing with the class of aliens covered by section 212(a)(9)(B)(i)(II), all of whom have
consummated at least one complete immigration violation before “again seek[ing]
admission.”
6
In our prior decision, confusion about the proper meaning of the phrase “seeks admission”
led us to commit an error, which we now correct. In a footnote, we declared ourselves
“at a loss” to explain Congress’s inclusion of the word “again” in section 212(a)(9)(B)(i)(II),
since the rest of the statutory language did not seem to require the alien to have previously
“applied for admission” in the ordinary sense of that phrase. Matter of Lemus, 24 I&N Dec.
at 376 n.3. Because we did not then understand that Congress was using the phrase “seeks
admission” as a term of art, we presumed that the word “again” must have been inserted into
the statute through a drafting error. Id. What we failed to discern is that all aliens who have
accrued past periods of “unlawful presence” in the United States have necessarily been
“applicants for admission” at some point in the past. That is, they had either been true
applicants for admission at some point (in that they had entered the United States with visas
or other entry documents before their presence became unlawful) or they had entered
unlawfully or been paroled into the United States but were deemed constructive applicants
for admission by operation of section 235(a)(1) of the Act. Thus, any alien who applies for
admission to the United States after accruing a prior period of unlawful presence is,
in a very meaningful (if sometimes artificial) sense, “again seek[ing] admission.”
743
an understandable, but ultimately incorrect, set of assumptions regarding what
it means to “seek admission” and “play by the rules” in the present context.
In ordinary parlance, the phrase “seeks admission” connotes a request for
permission to enter, and we agree that an alien who requests permission
to enter the United States would naturally be perceived to be “playing by the
rules.”5 The problem, however, is that Congress has defined the concept
of an “applicant for admission” in an unconventional sense, to include not just
those who are expressly seeking permission to enter, but also those who are
present in this country without having formally requested or received
such permission, or who have been brought in against their will under
certain circumstances. According to section 235(a)(1) of the Act, 8 U.S.C.
§ 1225(a)(1) (2006):
An alien present in the United States who has not been admitted or who arrives
in the United States (whether or not at a designated port of arrival and including
an alien who is brought to the United States after having been interdicted
in international or United States waters) shall be deemed for purposes of this Act
an applicant for admission.
In other words, many people who are not actually requesting permission
to enter the United States in the ordinary sense are nevertheless deemed
to be “seeking admission” under the immigration laws.6Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
744
Hence, the fact that an alien “again seeks admission” after departure within
the meaning of section 212(a)(9)(B)(i)(II) of the Act does not absolve him
of all culpability or even necessarily establish that he is less culpable than
an alien covered by section 212(a)(9)(C)(i)(I). See Cheruku v. Att’y Gen.
of U.S., 662 F.3d at 207 (opining that “the difference in relative culpability”
between the classes of aliens covered by sections 212(a)(9)(B)(i)(II) and
(C)(i)(I) does not “absolve[] those barred by [section 212(a)(9)(B)(i)(II)] of all
culpability or lead[] to the inevitable conclusion that Congress implicitly
intended to waive inadmissibility for those aliens”). On the contrary, in some
cases such an alien will have reentered the United States unlawfully, thereby
making himself an “applicant for admission” by operation of law, while
seeking “admission” through adjustment of status. See Matter of Rodarte,
23 I&N Dec. at 908; see also Lemus-Losa v. Holder, 576 F.3d at 757.
To be sure, many aliens covered by section 212(a)(9)(B)(i)(II) do “seek
admission” in the ordinary way, by presenting themselves for inspection
at ports of entry and requesting admission after having obtained visas and
appropriate waivers of inadmissibility. Such individuals are plainly unlike the
recidivist immigration violators covered by section 212(a)(9)(C)(i)(I) of the
Act, although we think it significant that even those who “play by the rules”
by following the orderly consular process would be denied admission, absent
a waiver, if they are covered by section 212(a)(9)(B)(i)(II). See Cheruku
v. Att’y Gen. of U.S., 662 F.3d at 207 (“Under the ten-year bar, an alien with
a one-year period of unlawful presence in the U.S. would not be eligible for
consular admission and inspection at all during the applicable bar period
without a waiver of inadmissibility.”). For present purposes, however,
we need not be overly concerned with individuals who are applying for
admission from outside the United States; such aliens are not potential
applicants for section 245(i) adjustment because they are not “physically
present in the United States.” Section 245(i)(1) of the Act.
In sum, although section 212(a)(9)(B)(i)(II) of the Act is substantially
different from section 212(a)(9)(C)(i)(I), neither section covers mere
“entry without inspection” or other conduct that section 245(i) was
designed to ameliorate. Thus, applying the section 245(i)(2)(A) admissibility
requirement to aliens who are inadmissible under section 212(a)(9)(B)(i)(II)
does not undermine the purpose of section 245(i) adjustment or otherwise lead
to absurd results. See Cheruku v. Att’y Gen. of U.S., 662 F.3d at 206-07
(“An interpretation upholding the [section 212(a)(6)(A)(i)] bar would
make unlawful presence ‘both a qualifying and a disqualifying condition
for adjustment of status,’ but the same cannot be said for [section
212(a)(9)(B)(i)(II)]. Thus, no implicit waiver is required to give effect to the
words of the statute.” (quoting Herrera-Castillo v. Holder, 573 F.3d at 1007)
(citations omitted)). In this regard, we note that a significant number of aliensCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
745
covered by section 212(a)(9)(B)(i)(II) of the Act can overcome their
inadmissibility—and, by extension, qualify for adjustment of status—through
the section 212(a)(9)(B)(v) waiver process. We therefore remain convinced
that aliens inadmissible under section 212(a)(9)(B)(i)(II) of the Act are
ineligible for section 245(i) adjustment absent such a waiver.
D. Respondent’s Inadmissibility
In our prior decision, we explained at some length why we considered the
respondent to be inadmissible under section 212(a)(9)(B)(i)(II) of the Act. See
Matter of Lemus, 24 I&N Dec. at 376-77. In his petition for review before the
Seventh Circuit, the respondent challenged his inadmissibility, but the court
ultimately found it unnecessary to resolve that issue. Lemus-Losa v. Holder,
576 F.3d at 761. We have been presented with no argument on remand that
would cause us to reconsider this aspect of our prior analysis. Nevertheless,
as a prudential matter we deem it appropriate to remand the record
to the Immigration Judge for further consideration of the respondent’s
inadmissibility, for two reasons.
First, we note that section 212(a)(9)(B)(i)(II) of the Act provides for the
inadmissibility of aliens who seek admission within 10 years of having
departed the United States following the accrual of at least 1 year of unlawful
presence. Given the Immigration Judge’s finding that the respondent’s
inadmissibility under section 212(a)(9)(B)(i)(II) of the Act was triggered
by a departure occurring on an unidentified date in 2001 (which was more than
10 years ago), a question naturally arises as to whether the passage of time
has vitiated the respondent’s inadmissibility under section 212(a)(9)(B)(i)(II).
We believe that respectable arguments can be advanced to support either side
of this question, and we are not inclined to leave such a potentially important
issue unaddressed. Accordingly, we deem it advisable to remand the record
for further examination by the Immigration Judge, who (unlike this Board)
is empowered to receive relevant evidence and to enter whatever findings
of fact might be necessary to resolve the issue.
The second reason for remanding is to allow the Immigration Judge
to consider in the first instance whether the facts support the DHS’s
recent argument regarding the respondent’s inadmissibility under section
212(a)(9)(C)(i)(I) of the Act. During the proceedings in Immigration Court,
the Immigration Judge raised the question of the respondent’s inadmissibility
under section 212(a)(9)(B)(i)(II) on his own motion and then found the
respondent ineligible for adjustment of status on that basis. Hence, the
respondent’s arguments on appeal (and those of the DHS in response)
pertained solely to the interplay between sections 212(a)(9)(B)(i)(II) and
245(i). When the matter was remanded to us by the Seventh Circuit, however,Cite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
7 Matter of Briones had not yet been decided when this case was being argued before the
Board; thus, sections 212(a)(9)(C)(i)(I) and 245(i) of the Act were not so well understood
at that time that the DHS can fairly be charged with having failed to raise an obviously
dispositive issue.
746
the DHS asserted that the respondent is also inadmissible under section
212(a)(9)(C)(i)(I), the ground at issue in Matter of Briones.
The respondent maintains that the DHS has waived the right to invoke his
alleged inadmissibility under section 212(a)(9)(C)(i)(I) by failing to raise the
issue sooner. But the waiver principles invoked by the respondent have
no place where, as here, the sole issue in dispute—namely, the respondent’s
eligibility for section 245(i) adjustment—is a matter with respect to which
he bears the exclusive burden of proof. Section 240(c)(4)(A) of the Act,
8 U.S.C. § 1229a(c)(4)(A) (2006). The respondent cannot meet his burden
of proving that he is affirmatively “admissible . . . for permanent residence,”
as required by section 245(i)(2)(A), simply by arguing that the DHS neglected
to point out his alleged inadmissibility sooner. In this regard, we observe that
judicial rules pertaining to the waiver of arguments by appellants are not
controlling here because the DHS was the prevailing party below and the
appellee before this Board and the Seventh Circuit. See Transamerica Ins. Co.
v. South, 125 F.3d 392, 399 (7th Cir. 1997) (“We certainly agree that the
failure of an appellee to have raised all possible alternative grounds for
affirming the district court’s original decision, unlike an appellant’s failure
to raise all possible grounds for reversal, should not operate as a waiver. The
urging of alternative grounds for affirmance is a privilege rather than a duty.”
(quoting Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357, 358 (7th Cir.
1996) (internal quotation marks omitted))).7 Because the DHS was not
obliged to raise the respondent’s alleged inadmissibility under section
212(a)(9)(C)(i)(I) in the first round of these proceedings, we will allow
it to do so on remand.
III. CONCLUSION
In conclusion, although we have carefully considered the issues raised
by the Seventh Circuit in Lemus-Losa v. Holder, we respectfully conclude that
an alien’s inadmissibility under section 212(a)(9)(B)(i)(II) of the Act
is sufficient to preclude him from satisfying the admissibility requirement
of section 245(i)(2)(A), absent a section 212(a)(9)(B)(v) waiver. Nevertheless,
given the passage of time since this matter was last before us and the
emergence of new, unanswered questions regarding the respondent’s
inadmissibility under sections 212(a)(9)(B)(i)(II) and (C)(i)(I), we deemCite as 25 I&N Dec. 734 (BIA 2012) Interim Decision #3745
747
it appropriate to remand the record to the Immigration Judge for supplemental
fact-finding and the entry of a new decision that accounts for all relevant
intervening developments.
ORDER: The appeal is dismissed.
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.