On December 1, 2016, the Board of Immigration Appeals (BIA or Board) ruled on the appeal of a Cuban citizen who was paroled into the U.S. per INA §212(d)(5) on August 25, 1980 as part of the Mariel Boatlift and at that time received an I-94 Arrival/Departure Record indicating he was paroled for the purpose of seeking Cuban Asylum. In 1986, respondent was convicted of a controlled substance offense and, in 2010, filed for adjustment of status (AOS) under the Cuban Adjustment Act. The Department of Homeland Security (DHS) denied his AOS application, finding him inadmissible under INA §212(a)(2)(A)(i)(II) (conviction for controlled substance violation), a ground for which there is no available waiver. Placed into removal proceedings and charged with the same ground of inadmissibility, respondent applied to adjust status in conjunction with an INA §209(c) waiver, which waives certain inadmissibility for refugees and asylees. The Immigration Judge (IJ) denied the AOS application, holding respondent was neither a refugee nor an asylee, but had been paroled into the U.S. per 212 §(d)(5); this determination was appealed to the Board.
The BIA held respondent statutorily ineligible to adjust status but found it unnecessary to decide whether his conviction renders him ineligible for a §209(c) waiver. Initially, the opinion holds that only those admitted as refugees or granted asylum can file to adjust under INA §209 and, because respondent entered on August 25, 1980 and “only Cubans who were paroled into the United States between April 1, 1980 and May 18, 1980 were considered to have entered as ‘refugees’ under the Refugee Act” and respondent was never granted asylum, he is not eligible for AOS under §209. Noting that his special status as a Cuban/Haitian Entrant was not enough to establish respondent was a “refugee” and that the phrase “Cuban Entrant” on his I-94 “alone does not sufficiently establish that the respondent is an ‘asylee’” and there is no indication that his 1980 asylum application was ever granted, the Board dismissed the appeal. Matter of L-T-P-, 26 I&N Dec. 862 (BIA 2016).
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