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“Admission” and Adjustment of Status

Last Updated: 
Thu, Jan 29, 2015

The Council has filed amicus briefs addressing if and when an adjustment of status can constitute an “admission” under the Immigration and Nationality Act (INA). The INA defines the terms “admitted” and “admission” as the lawful entry of a noncitizen following inspection and authorization by an immigration officer. However, the Board has held that adjustment of status from within the United States also constitutes an “admission.” The issue has arisen in cases involving the attempted removal of noncitizens for the commission of certain crimes within five years after “the date of admission” (INA & 237(a)(2)(A)(i)), and in cases involving waivers of inadmissibility under INA & 212(h), which in some circumstances are unavailable to noncitizens who have previously been “admitted to the United States as an alien lawfully admitted for permanent residence.”


Board of Immigration Appeals

Matter of Alyazji, (BIA amicus brief submitted Jan. 21, 2010). In a precedent decision, Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), the Board partially overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), which had held that the phrase “date of admission” in INA § 237(a)(2)(A)(i) applied to any admission that the noncitizen might have made, including his or her adjustment of status. Matter of Alyazji held instead that, consistent with the Council’s position, the “date of admission” only applies to the date of the specific admission by virtue of which an individual was present in the U.S. at the time the crime was committed.  

Second, Third, Fourth, Sixth, Seventh, Eighth, and Tenth Circuits

In amicus briefs submitted in the Second, Third, Fourth, Sixth, Seventh, Eighth, and Tenth Circuits, the Council urged the courts to find, consistent with the definition of the term “admitted” in the INA, that the bar to eligibility for a waiver under INA § 212(h), which applies to certain noncitizens who have been “admitted to the United States as an alien lawfully admitted for permanent residence,” refers only to noncitizens who were admitted in LPR status at a port of entry, as distinct from those who adjusted to LPR status post-entry. All of these courts, as well as the Fifth, Ninth, and Eleventh Circuits, agreed with this interpretation; the Eighth Circuit was the sole court to uphold the BIA’s contrary interpretation. In May 2015, after ten Courts of Appeals rejected its interpretation of the INA § 212(h), the BIA finally acquiesced to the majority opinion and withdrew its earlier precedent decisions which held otherwise.  See Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015).

Hanif v. Attorney General, No. 11-2643 (3d Cir. amicus brief submitted Sept. 19, 2011). The Council participated in oral argument on April 11. 2012. The court issued a precedent decision on April 11, 2011, adopting the interpretation urged by the Council. Read our statement.

Mendoza Leiba v. Holder, No. 11-1845 (4th Cir. amicus brief submitted Dec. 7, 2011). The Council participated in oral argument on September 20, 2012. In a precedent decision, the court reversed the agency, instead interpreting the statute as urged by the Council. Read our statement.

Stanovsek v. Holder, No. 13-3279 (6th Cir. amicus brief submitted June 6, 2013). The Court issued a precedent decision on September 24, 2014 adopting the arguments urged by the Council.

Papazoglou v. Holder, No. 12-2372 (7th Cir. Amicus brief submitted Aug. 15, 2012). The National Immigrant Justice Center joined the Council on this amicus brief. The court followed the lead of all other circuits, reversing the agency and limiting the bar to those admitted as an LPR at a port of entry. Read our statement.

Roberts v. Holder, No. 12-3359 (8th Cir. amicus brief in support of petition for rehearing or rehearing en banc submitted May 19, 2014). The Immigration Council filed this brief with the American Immigration Lawyers Association urging the court to rehear the case and reverse its adverse published opinion, Roberts v. Holder, 745 F.3d 928 (8th Cir.2014). Read our statement.The Court denied rehearing on July 3, 2014.

Husic v. Holder, No. 14-607 (2d. Cir. amicus brief submitted Aug. 18, 2014). The Immigration Council filed this brief with AILA. The Court issued a favorable precedent decision on January 8, 2014, agreeing with the majority of other courts that have rejected the government's interpretation of the statute. The Tenth Circuit adopted this interpretation in a precedent decision issued in another case, Medina-Rosales v. Holder, 778 F.3d 1140 (10th Cir. 2015).

Al-Fatlawi v. Holder, No. 14-9565 (10th Cir. amicus brief filed Oct. 7, 2014) and Lasitani v. U.S. Attorney General, No. 14-9581 (10th Cir. amicus brief filed Nov. 7, 2014). In these two cases, the Council and AILA filed amicus briefs urging the Court to join the overwhelming majority of circuit courts that have rejected the government’s interpretation of the bar to eligibility for an INA § 212(h) waiver.