BIA: Amnesty LPR Was "Admitted," Is Removable Based on "After Admission" Aggravated Felony (Matter of Rosas)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA: AMNESTY LPR WAS "ADMITTED," IS REMOVABLE BASED ON "AFTER ADMISSION" AGGRAVATED FELONY (MATTER OF ROSAS)
Immigrants' Rights Update, Vol. 13, No. 3, May 28, 1999

In the case of a lawful permanent resident who was convicted of an aggravated felony after adjusting status under the amnesty provisions of Immigration and Nationality Act section 245A(b), the Board of Immigration Appeals has ruled that her adjustment constitutes an "admission" to the United States and renders her removable under INA section 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony "after admission."

The respondent initially entered the U.S. without inspection in 1979. In 1989, she received amnesty and adjusted status to become a lawful permanent resident. On Mar. 4, 1997, she was convicted under California law for transporting a controlled substance. She was placed in removal proceedings and charged under INA section 237(a)(2)(A)(iii) as being removable as an alien convicted of an aggravated felony after admission to the U.S.

The immigration judge concluded that the respondent was not deportable because she had not been convicted "after admission." The IJ based his conclusion on the fact that the respondent had never been "admitted" to the U.S. within the meaning of INA section 101(a)(13)(A). That section provides that the terms admission and admitted mean, with respect to an alien, the lawful entry of the alien into the U.S. after inspection and authorization by an immigration officer.

The BIA agreed with the IJ that the respondent’s adjustment of status does not meet the literal terms of the definition of admission or admitted described in INA section 101(a)(13)(A) because adjustment is not an "entry." Nonetheless, the BIA concluded that the respondent was removable as charged.

To determine that the respondent was "admitted" to the U.S., the BIA did not focus on the definition of admission in INA section 101(a)(13)(A). Rather, it reviewed the phrase "lawfully admitted for permanent residence" found in INA section 101(a)(20) and other sections of the INA. Section 101(a)(20) defines the term "lawfully admitted for permanent residence" as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." The BIA ruled that the respondent, having been accorded lawful permanent resident status under the amnesty provisions of INA section 245A, was "lawfully admitted for permanent residence" under the definition in INA section 101(a)(20).

The BIA then framed the issue before it as whether the phrase "after admission" in INA section 237(a)(2)(A)(iii) includes people, like the respondent, who have adjusted status and been "lawfully admitted for permanent residence" under the definition in section 101(a)(20). The BIA found that it does.

The BIA reviewed numerous general provisions pertaining to adjustment of status to support its finding that aliens "lawfully admitted for permanent residence" through the adjustment process are considered to have accomplished an "admission" to the U.S. Among other things, the BIA indicated that aliens granted legalization under the amnesty provisions of INA section 245A are characterized as having been "lawfully admitted for permanent residence." It also noted that under the general provisions for adjustment of status, the attorney general is instructed to "record the alien’s lawful admission for permanent residence." In addition, the BIA noted that other provisions for adjustment of status also confer upon the applicant the status of "an alien lawfully admitted for permanent residence."

The BIA also examined changes to immigration law enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to provide further insight into the meaning of the term "admission." Among other things, the BIA noted that INA section 237, which pertains to general classes of deportable aliens, appears to recognize that at least some aliens who have adjusted to permanent resident status have been "admitted" to the U.S. It also noted that procedural provisions introduced by the IIRIRA, particularly INA section 240(c)(2) (which concerns the burden of proof in removal proceedings), also support a reading of the term "admitted" to include aliens who have adjusted their status to that of an alien lawfully admitted for permanent residence.

Based on the foregoing, the BIA concluded that the respondent was "admitted" to the U.S. when her status was adjusted to that of "an alien lawfully admitted for permanent residence" pursuant to section 245A(b) of the INA. The BIA observed, "[A]lthough this change in status does not meet the definition of an ‘admission’ in section 101(a)(13)(A), because entry occurred prior to the determination of admissibility, that definition does not set forth the sole and exclusive means by which admission to the U.S. may occur under the Act. Admissions also occur after entry through the process of adjustment of status under section 245 and 245A. Such admissions are explicitly recognized in the language of section 101(a)(20)." As such, the BIA held that the respondent was removable under INA section 327(a)(2)(A)(iii) as an alien convicted of an aggravated felony "after admission."

Matter of Rosas, Int. Dec. 3384 (BIA Apr. 7, 1999).