On March 10, 2016, the Board of Immigration Appeals (BIA or Board) found that one who, after obtaining temporary residence status through the legalization program, was convicted of multiple controlled substance and counterfeiting crimes, then subsequently adjusted status to lawful permanent resident, was inadmissible at the time of such adjustment and was therefore ineligible for INA § 212(c) relief.
The BIA first held that, despite the fact that the Department of Homeland Security (DHS) has exclusive jurisdiction over adjustment of status applications under INA § 245A, pursuant to the statute and implementing regulations, the Immigration Judges (IJs) and the Board necessarily have jurisdiction to determine whether a respondent was eligible for adjustment, reasoning that once removal proceedings are initiated, the IJ must have jurisdiction to conduct removal proceedings and rule on eligibility for relief; otherwise, a § 245A adjustment of status could never be challenged in Immigration Court.
As to what point in the legalization process an applicant is to be considered lawfully admitted for permanent residence, the BIA noted that the applicable provisions require one to file two applications: the first to acquire temporary residence and the second application to adjust status to permanent resident. Additionally, both stages require the applicant to prove that he or she is admissible as an immigrant under INA § 245A. Thus, the controlled substance convictions rendered the appellant inadmissible per INA § 212(a)(2)(A)(i)(II) at the time of adjustment and removable per INA § 237(a)(1)(A).
Finally, because only those who are lawfully admitted for permanent residence are entitled to INA § 212(c) relief, the Board held that the applicant, whose convictions rendered him inadmissible and therefore ineligible to adjust status, was never “lawfully” accorded permanent residence and was thus ineligible for a waiver of inadmissibility under former INA § 212(c). Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016).
Learn more about the immigration services provided by Philip Levin & Associates.
