The respondent’s adjustment of status subsequent to his entry to the U.S. without inspection is not an “admission” as that term is literally defined in section 101(a)(13)(A) of the Act. However, the limited definitions of the terms “admission” and “admitted” in section 101(a)(13)(A) do not resolve the meaning of the phrase “admitted . . . as an alien lawfully admitted for permanent residence” in section 212(h) of the Act.
An alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or by adjustment of status if the alien is already in the United States. Adjustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace. As the BIA has repeatedly held, an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States. Sections 245(a) and (i) and section 245A(b)(1) of the Act, plainly authorize the Attorney General to adjust an alien’s status “to that of an alien lawfully admitted for permanent residence” and thus provide that adjustment applicants are to be treated as if they are being “admitted. For these reasons, it is not necessary that section 101(a)(13) of the Act specifically include adjustment of status in the definition of an “admission.”
The BIA has consistently construed an adjustment of status as an “admission.” In Matter of Rosas, 22 I&N Dec. 616, the BIA held that aliens who are lawfully admitted for permanent residence through the adjustment of status process are considered to have effectuated an “admission” to the United States. This rationale was extended to Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), in finding that an alien who has been accorded lawful permanent resident status is deemed to have been “admitted” as of the date of the adjustment of status. Applying Matter of Rosas to the facts of the instant case, it is clear that the respondent’s only “admission” into the United States was pursuant to his 2001adjustment of status. The respondent, similar to the alien in Rosas, entered without inspection, so there are no possible alternative dates of admission. If the respondent’s 2001 adjustment of status is not considered an admission, he would be in the absurd position of being a lawful permanent resident without ever having been “admitted” in that status and thus could be subject to inadmissibility under section 212(a)(6)(A)(i) of the Act and ineligible for various forms of relief. Therefore, the respondent’s adjustment of status was an “admission” within the meaning of the Act.
The pertinent legislative history supports this conclusion. The Conference Report accompanying the IIRIRA states, “The managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” Section 240A(a)(2) of the Act, sets forth a continuous residence requirement of 7 years for cancellation of removal for lawful permanent residents. The Board considers the Conference Report’s reference to section 240A of the Act to reflect Congress’ intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.
An interpretation of section 212(h) of the Act that does not treat an alien’s adjustment of status as an admission that invokes the 7-year residence requirement would frustrate this legislative purpose. An alien who is removable for a criminal conviction, who obtained lawful permanent residence through adjustment of status, and who has not resided continuously in the United States for 7 years would be ineligible for cancellation of removal under section 240A but would remain eligible for a section 212(h) waiver.
The legislative history of the IIRIRA indicates that Congress did not intend such a result.
Additionally, section 101(a)(13) of the Act was amended by the IIRIRA to define the terms “admission” and “admitted” in order to address complexities in the law resulting from the United States Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963). It was not intended to differentiate an adjustment of status from an admission after inspection at the border. Likewise it was not intended to modify the recognition in Matter of Rainford, 20 I&N Dec. 598, that adjustment of status is the functional equivalent of inspection and authorization to enter at the border.
The respondent’s reliance on Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), to support his claim that he is eligible for a waiver under section 212(h) of the Act is misplaced. Martinez did not consider whether the same rule would apply in a case like the respondent’s where the alien was not previously admitted. Indeed, if the BIA were to literally apply the Fifth Circuit’s holding to the instant case, the respondent would have no admission date at all. Given that the Fifth Circuit in Martinez did not have to confront the factual scenario presented here, the Board is not persuaded by respondent’s contention that Martinez should control.
The Board’s conclusion receives further support from the Fourth Circuit’s decision in Aremu v. Department of Homeland Security, 450 F.3d 578 where it was explicitly noted that finding adjustment of status to be an admission might be justified because of the possible absurdities that would result from a contrary holding in cases where the alien has never been admitted within the meaning of section 101(a)(13)(A) of the Act. The Fourth Circuit made this observation despite its disagreement with the BIA’s holding in Matter of Shanu that the date an alien is lawfully adjusted for permanent residence also constitutes a “new” date of admission when the alien had previously been admitted in another status.
It should be reemphasized that not construing an alien’s adjustment to lawful permanent residence to be an admission would have problematic consequences for other aliens. The Board cannot read the same statutory language one way in the context of section 212(h) relief and another way in the context of cancellation of removal. If adjustment of status under section 245(a) of the Act did not constitute an admission for purposes of section 212(h), it follows that it also would not be an admission for purposes of cancellation of removal. Resolving this interpretative dilemma by considering adjustment of status as an “admission” is far more consistent with the overall structure of the Act regarding the eligibility of aliens for relief under the relevant provisions of section 212(h) and for other analogous relief, in particular, cancellation of removal under section 240A(a).
The critical factor is not whether one acquired lawful permanent resident status through admission as an immigrant or through adjustment of status in the United States but is, instead, the time accrued in such status. A contrary rule would not only allow aliens who have been admitted to lawful permanent resident status through the process of adjustment to avoid the effect of the “stop-time” rule. It would also allow such aliens, who currently comprise a substantial majority of all those admitted to lawful permanent resident status, to forever avoid the effect of the aggravated felony bar in section 212(h). There is no indication that Congress intended the limitations it built into section 212(h) to apply to those aliens whose previous admission to lawful permanent resident status occurred through the overseas consular process, but not to the majority of aliens whose admission occurred through adjustment of status. Therefore, the critical concern is the alien’s length of residence in lawful permanent resident status, rather than the mechanism by which he or she was “admitted” to that status. The respondent is ineligible for section 212(h) relief because he engaged in conduct that rendered him inadmissible within a few years of his adjustment. Another alien who engaged in similar conduct more than 7 years after adjustment would be eligible for a waiver.
The 7-year continuous residence requirement of section 212(h) of the Act applies to the respondent because his adjustment of status constitutes an admission and is the only possible date of admission, given that he entered without inspection. Because the respondent does not have the requisite 7 years of continuous residence, he is ineligible for a section 212(h) waiver. Accordingly, the appeal is dismissed.
