Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
“Admission” and Adjustment of Status
The LAC 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 admissibility 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 LAC’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, and Eighth Circuits
The LAC urges 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. To date, the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits agree with this interpretation, while the Eighth Circuit stands alone in disagreeing. A Petition for Rehearing and Rehearing en Banc is pending in the Eighth Circuit. The issue also is pending in the Second and Sixth Circuits.
Hanif v. Attorney General, No. 11-2643 (3d Cir. amicus brief submitted Sept. 19, 2011). The LAC participated in oral argument on April 11. 2012. The court issued a precedent decision on April 11, 2011, adopting the interpretation urged by the LAC. Read our statement.
Mendoza Leiba v. Holder, No. 11-1845 (4th Cir. amicus brief submitted Dec. 7, 2011). The LAC 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 LAC. Read our statement.
Papazoglou v. Holder, No. 12-2372 (7th Cir. Amicus brief submitted Aug. 15, 2012). The National Immigrant Justice Center joined the LAC 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.
Stanovsek v. Holder, No. 13-3279 (6th Cir. amicus brief submitted June 6, 2013).
Sampathkumar v. Holder, No. 11-4342 (2d Cir. amicus brief submitted January 8, 2014). The LAC filed this brief with the American Immigration Lawyers Association.
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. Read our statement.