BIA: Adjustment of Status is admission for purposes of § 212(h) waiver

By University of Denver Sturm College of Law

May 4, 2010

In a recent decision, the BIA held that a person whose status is adjusted to that of a lawful permanent resident has been “admitted” on the date of adjustment for purposes of an INA § 212(h) waiver of inadmissibility. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) (Grant, Malphrus, and Mullane). Board Member Mullane wrote the panel’s decision.

This case involved an individual who entered without inspection, but adjusted his status to that of an LPR on September 24, 2001. Less than three years later Koljenovic was convicted of a fraud offense in Florida. Matter of Koljenovic, 25 I&N Dec. at 219. Koljenovic was placed in removal proceedings when he arrived at a port-of-entry on August 20, 2006. Matter of Koljenovic, 25 I&N Dec. at 219. After conceding removability, Koljenovic applied for a waiver of inadmissibility under INA § 212(h). Matter of Koljenovic, 25 I&N Dec. at 219. The IJ concluded that Koljenovic was not eligible for a § 212(h) waiver “because he was lawfully admitted for permanent residence when he adjusted his status and he did not have the requisite 7 years of lawful permanent residence since the date of his adjustment of status.” Matter of Koljenovic, 25 I&N Dec. at 219-220.

INA § 212(h) waives several crime-related grounds of inadmissibility. The statute, however, bars certain individuals from receiving a waiver: “No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if…the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.”

In determining whether adjustment of status constitutes an admission for § 212(h) purposes, the BIA first concluded that the statutory definitions of “admission” and “admitted” provided by INA § 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.” Matter of Koljenovic, 25 I&N Dec. at 220. Section 101(a)(13)(A) states: “The terms ‘admission’ and ‘admitted’ mean…the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”

Having concluded that the INA’s definition of these terms was insufficient to resolve the question presented by Koljenovic’s appeal, the BIA then discussed how it has interpreted adjustment in past cases. “We have consistently construed an adjustment of status as an ‘admission.’” Matter of Koljenovic, 25 I&N Dec. at 221. The Board added that adjustment is a legal fiction through which a person becomes recognized as having been “admitted” without actually having left the country. “‘As we have 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,” despite the fact the person seeking adjustment does not have to leave the country and seek admission through the standard consular processing route. Matter of Koljenovic, 25 I&N Dec. at 221.

As such, the BIA “conclude[d] that the respondent’s adjustment of status was an ‘admission’ within the meaning of the Act.” Matter of Koljenovic, 25 I&N Dec. at 221. Koljenovic, therefore, was “admitted” on the date of his adjustment (September 24, 2001) and he was placed into removal proceedings just over five years later (August 20, 2006). Consequently, he lacked the required seven years as an LPR necessary to be eligible for a § 212(h) waiver.

Though this case originated in the Newark, New Jersey Immigration Court—within the Third Circuit—the BIA nonetheless addressed the Fifth Circuit’s decision in Martinez v. Mukasey , 519 F.3d 532 (5th Cir. 2008), that seems to directly contradict the BIA’s position. “In that case, the alien was admitted after inspection as a nonimmigrant visitor and subsequently adjusted his status to that of a lawful permanent resident under section 245A of the Act.” Matter of Koljenovic, 25 I&N Dec. at 223. The BIA distinguished Martinez by emphasizing that the non-citizen in Martinez had been admitted at some point (though as a nonimmigrant), whereas Koljenovic, who entered without inspection, had never been admitted. Matter of Koljenovic, 25 I&N Dec. at 223. “Indeed,” the BIA added, “if we were to literally apply the Fifth Circuit’s holding to this case, the respondent would have no admission date at all.” Matter of Koljenovic, 25 I&N Dec. at 223. As such, the BIA elected not to use Martinez as a guide.