By Susan Schreiber
The concept of admission is central to many critical issues in immigration law. If your client was “admitted,” he or she may qualify to adjust status under INA § 245(a). If your client was “admitted,” he or she is subject to the grounds of deportability, not inadmissibility, and the government will have the burden of proof. And if your client was “admitted,” this may impact on available remedies for relief from removal.
Three recent decisions address the issue of admission in the context of eligibility for an INA § 237(a)(1)(H) waiver and in the context of Family Unity status. Each of these cases is described below:
- Matter of Agour, 26 I&N Dec. 566 (BIA 2015)
If you have ever had clients who became an LPR when they weren’t eligible for this status, you may be familiar with INA § 237(a) (1) (H) as a possible option to rescue your client from removal. Under this section, an LPR who obtained status based on a misrepresentation may be eligible to retain residency if they can show that they (a) were inadmissible at the time of admission based on a misrepresentation, whether willful or innocent; (b) are the spouse, parent, son or daughter of a USC or LPR; and (c) are in possession of an immigrant visa or equivalent document and was otherwise inadmissible at the time of admission.
What does the statutory language mean when it refers to inadmissible at the time of admission? That was the issue in Matter of Agour, where an LPR who allegedly adjusted status based on fraudulent evidence of bona fide marriage sought to apply for an INA § 237(a)(1)(H) waiver. The immigration judge determined she was not eligible for this relief, finding that adjustment of status is not an admission for purposes of this statute. On appeal, the Board disagreed with the judge, holding that “an alien’s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a) (1) (H) of the Act.”
In arriving at this decision, the Board reviewed the history and purpose of this waiver of deportability, as well as the many cases that have held that an adjustment of status constitutes an admission depending on the context in which the term is used. In particular, the Board noted that INA § 237(a)(1) creates deportability for those who were inadmissible at the time of entry or adjustment of status, and that limiting waiver eligibility to only those who were admitted with an immigrant visa would lead to an “incongruous application of section 237(a) of the Act.”
As the Board observed, this is the first published decision addressing the availability of an INA § 237(a) (1) (H) waiver to LPRs who adjusted status. To read the full decision, click here.
- Matter of Fajardo Espinoza, 26 I&N Dec. 603 (BIA 2015)
- Medina-Nunez v Lynch, No 14-70657 (9th Cir. 2015)
On June 8, 2015, two decisions were issued that represent bad news for anyone hoping to argue that a grant of Family Unity status constitutes an admission under INA § 101(a)(13)(A). In Matter of Fajardo Espinoza, the Board affirmed its prior holding in Matter of Reza, 25 I&N Dec. 296 (BIA 2010) that approval of Family Unity status is not an admission as defined in the statute. And in Medina-Nunez v Lynch, No. 14-70657 (9th Cir. 2015), the Ninth Circuit came to the same conclusion, rejecting it’s prior ruling on this issue and giving deference to the Board’s holding in the Matter of Reza decision.
What is Family Unity and why is it arguably an admission? Family Unity benefits are available to certain spouses and children of persons who legalized their status under the amnesty or seasonal agricultural worker programs. Family Unity status permits these qualifying relatives to have protection from deportation and employment authorization if they entered the United States before May 5, 1988 (amnesty cases) or December 1, 1988 (SAW cases) and have continuously resided in the United States since then. The regulations governing the Family Unity program are found at 8 CFR § 236, and applications are submitted on a Form I-817. Some, but not all, inadmissibility grounds apply to eligibility. Family Unity grantees receive a two-year period of “voluntary departure,” which may be extended as long as the Family Unity beneficiary remains eligible for the program.
In the recently decided Fajardo Espinoza case, an LPR charged with deportability for a controlled substance offense sought to apply for cancellation of removal. In order to satisfy the eligibility requirement of residing in the United States for seven years after “admission in any status,” Mr. Fajardo Espinoza sought to rely on the Family Unity status he held prior to becoming an LPR through adjustment of status. Although the Board had already decided this issue in Matter of Reza, this case arose in the Ninth Circuit, where the court had held, in Garcia-Quintero v Gonzales, 455 F.3d 1006 (9th Cir. 2006) that a grant of Family Unity does constitute an admission. In declining to follow the Ninth Circuit ruling on this issue, the Board noted that the court decision was made prior to Reza and thus did not have the benefit of the Board’s analysis of this issue. Further, the Board reiterated its view that while Family Unity approval does confer a “status,” it does not fall within the definition of admission as set forth in the statute.
On the same day that the Board was deciding not to defer to the Ninth Circuit Garcia-Quintero decision, the Ninth Circuit retreated from that decision and determined that it would defer to the Board’s decision in Matter of Reza. As a result, the LPR in that case, who was similarly seeking to rely on Family Unity status to satisfy the post-admission residency requirement for cancellation of removal, was unable to qualify for relief.
Although this issue will likely be litigated in other circuits, for now both the Board and the Ninth Circuit are in agreement that a grant of Family Unity status does not constitute an admission.