Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
Adjustment of Status When Admission Involved Fraud or Misrepresentation
In March 2008, the Ninth Circuit issued a decision, Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008) , finding that a noncitizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA § 245(a) because he or she has not been “admitted.” Following the Ninth Circuit’s decision, which was later vacated (Orozco v. Mukasey, 546 F.3d 1147 (9th Cir. 2008)), numerous immigration courts throughout the country were questioning whether Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), was still good law. In Matter of Areguillin, the Board of Immigration Appeals (BIA or Board) had held that an admission occurs when an inspecting officer “permits the applicant to pass through the port of entry.” Thus, the BIA found that Areguillin was “inspected and admitted” within the meaning of the adjustment statute, INA § 245(a), when she was waived through the port of entry, even though she was inadmissible at that time due to lack of proper documents. Ultimately, in July 2010, the BIA issued a precedent decision affirming the rule in Matter of Areguillin.
In the following cases, the LAC submitted amicus briefs to the BIA arguing that Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), should be reaffirmed and that a noncitizen was “admitted” when an immigration officer at a port of entry inspected him and allowed his entry, even if he was inadmissible at the time.
Matter of Aguilar-Cerda, No. A075-819-055 (BIA amicus brief filed Sept. 2, 2009)
Matter of Patrick, No. A99-205-364 (BIA amicus brief filed Jan. 13, 2009)
Matter of Orozco, No. A77-981-235 (BIA amicus brief filed Jan. 8, 2009)
LAC Practice Advisory, Inspection and Entry at a Port of Entry: When is There an Admission? (January 29, 2013). This practice advisory discusses entries in three common situations: where a noncitizen is “waved” through a port of entry with no questions asked; where entry is gained by fraud or misrepresentation; and where there is a false claim to U.S. citizenship. With respect to each situation, the practice advisory explores whether an “admission” has occurred, the individual’s immigration status upon entry, and the immigration consequences of the action. It also discusses the impact of these three types of entries on a DACA application.