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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Adjustment Of Status For The Permanently Barred

by Charles Wheeler

In the beginning, Congress created adjustment of status under INA 245(a) and (i). The first section allows aliens who entered the United States with inspection to adjust their status in the United States if they are immediate relatives (spouse, parent, or unmarried child of a U.S. citizen). It also allows aliens who entered with inspection who are in one of the preference categories (e.g., spouse or child of a lawful permanent resident) to adjust if they have always maintained lawful nonimmigrant status. These aliens may apply for adjustment of status without having to pay the $1,000 penalty fee. Aliens who entered without inspection or who violated the terms of their nonimmigrant status (assuming they are in one of the preference categories) may only adjust status if they qualify under INA 245(i). This section requires that a Form I-130 or labor certification have been filed on their behalf on or before April 30, 2001, and it may require the applicant to have been residing in the United States on December 21, 2000.

Wedged in chronologically between the extensions of INA 212(i) came the current grounds of inadmissibility, codified in INA 212(a)(9), related to various immigration violations, including unlawful presence, prior order of removal, and illegal reentry. Practitioners have been advised to distinguish between a client's eligibility to file for adjustment of status and his or her inadmissibility. For example, a client who had committed fraud at the time of entry might still be able to file for adjustment of status, but would need to submit a waiver pursuant to INA 212(i). Or a client who had triggered the three-year bar for unlawful presence (between 180 days and one year in the country) and who had subsequently reentered the United States might still qualify for adjustment under 245(i), but would need to submit a waiver pursuant to INA 212(a)(9)(B)(v).

But clients who had triggered the "permanent" bar under INA 212(a)(9)(C)(i) were advised not to file for adjustment but rather to leave the United States and remain abroad for ten years before applying for an immigrant visa and filing a waiver on Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. This ground may be also be waived for aliens who are granted Family Unity status. This permanent bar is triggered by either (1) incurring at least one year of unlawful presence, followed by a departure, followed by an illegal or attempted illegal reentry, or (2) being formally removed/excluded/deported from the United States followed by an illegal or attempted illegal reentry after April 1, 1997.

That was the state of the law, or our understanding of it, prior to a critical decision from the Ninth Circuit Court of Appeals on August 13, 2004. In that case the court held that an alien who was inadmissible pursuant to INA 212(a)(9)(C)(i) due to illegal reentry after a deportation order was nevertheless eligible for adjustment of status, even though the alien had not resided abroad for ten years prior to reentering. Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). The applicant in that case had filed both an adjustment of status application and a Form I-212, and the USCIS had denied both. The agency then moved to reinstate the prior removal order pursuant to INA 241(a)(5).

On appeal, the appellate court found that the current regulation permitted the alien to make a retroactive application to reapply for admission, and had the agency granted that Form I-212, it would have cured the underlying deportation order as a ground of inadmissibility, both under INA 212(a)(9)(A) and 212(a)(9)(C). The agency had denied the I-212 saying it could not be filed from within the United States, a finding the Ninth Circuit held to be in error, given the plain language of 8 CFR 212.2(e). The court noted that Congress, in passing INA 245(i), clearly contemplated that some aliens who had entered the country illegally would nevertheless be eligible for adjustment of status, and that "nothing in the statutory provisions regarding adjustment of status, nor in the discussion of its purposes, suggests that aliens who have been previously deported or removed are barred from this form of relief." The obligatory ten-year foreign residence requirement, therefore, did not cover aliens who had been previously removed, reentered illegally, sought permission to reapply, and were granted that relief, assuming they were otherwise eligible for adjustment under INA 245(i).

Three months later, the Tenth Circuit, after analyzing the same regulatory and statutory provisions and applying them to similar facts, reached the opposite conclusion. Berrum-Garcia v. Comfort, 390 F. 3d 1158 (10th Cir. 2004). The court found that aliens who reentered the United States illegally after a removal order and before waiting the required period abroad have triggered the ten-year bar pursuant to INA 212(a). Those persons "may not apply for an I-212 waiver from within the United States." Instead, those persons "must first exit the United States and wait ten years before applying for an I-212 waiver." According to the court, the regulation in question only allows some aliens to apply for the I-212 waiver from within the United States (presumably those who reentered the country legally or have yet to even leave the country), but not those who triggered the ten-year bar through their subsequent illegal reentry. The generous provisions of INA 245(i) allow aliens who entered the country illegally to nevertheless apply for adjustment of status, but it does not cover those who triggered the permanent bars under INA 212(a)(9)(C).

Enter the Fifth Circuit, which in mid-2005 decided the case of an adjustment applicant who had accrued one year of unlawful presence followed by a departure and illegal reentry. Mortera-Cruz v. Gonzales, 409 F. 3d 246 (5th Cir. 2005). The court found that the alien was permanently barred under INA 212(a)(9)(C) and that INA 245(i) did not waive this ground of inadmissibility. While INA 245(i) allows aliens who entered the country illegally to adjust status under certain circumstances, it does not extend to cover aliens who are subject to the permanent bar for multiple illegal entries.

Toward the end of last year the Tenth Circuit re-visited the issue and, on the surface, seemed to reverse itself. It held that an alien who was inadmissible pursuant to INA 212(a)(9)(C)(i) due to illegal reentry after one year of unlawful presence was nevertheless eligible for adjustment of status pursuant to INA 245(i). Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. 2005). In that case, the alien had resided in the United States unlawfully for more than one year after April 1, 1997, and had departed the country to attend his immigrant visa interview. He was denied based on the ten-year bar under INA 212(a)(9)(B) for unlawful presence, but was invited to apply for the waiver under INA 212(a)(9)(B)(v). Instead, he reentered unlawfully and applied for adjustment of status. The court found that INA 245(i), which was an ameliorative statute enacted on December 21, 2000 and meant to promote family unity, conflicted with the ground of inadmissibility in INA 212(a)(9)(C)(i)(I), which was enacted almost four years earlier. The court applied the basic rule of statutory construction that holds that "conflicting statutes should be interpreted so as to give effect to each but to allow a later enacted, more specific statute to amend an earlier, more general statute." The court essentially found that the statutory language and Congressional intent behind 245(i) trumped the inadmissibility ground for illegal reentry after one year of unlawful presence.

The stage was thus set for the Board of Immigration Appeals (BIA) to offer its interpretation of what Congress intended and provide guidance to the USCIS and immigration judges on this issue. Early this year a three-member panel conducted a detailed analysis of the structure, context, and history of the relevant statutes and regulation. It held that an alien who reentered the United States illegally after a formal order of removal was inadmissible pursuant to INA 212(a)(9)(C)(i)(II), even though the alien had been granted permission to reenter (Form I-212) prior to his last illegal entry. Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006). The BIA found that the grant of the I-212 did not authorize the alien to reenter the United States, nor did it remedy the ground of inadmissibility for illegal reentry after an order of removal, because it was granted prior to the mandatory ten-year foreign residence. The BIA found that the alien was inadmissible until he had remained outside the United States for ten years and had received approval of a new I-212 filed at that point.

The BIA took issue with the Ninth Circuit's rationale in Perez-Gonzalez and found that the court's reasoning came from "an understandable, but ultimately incorrect, assumption" regarding the regulation governing Form I-212. Because the alien in this case was not under the Ninth Circuit's jurisdiction, the BIA was not obligated to follow its holding. Nevertheless, the agency distinguished it. In this case, Mr. Torres-Garcia sought the Form I-212 waiver prospectively prior to entering the country illegally rather than retroactively, which had been the situation in Perez-Gonzalez. The BIA did not reach the issue of whether eligibility for adjustment of status pursuant to INA 245(i) cured this ground of inadmissibility since the alien had conceded that it did not.

Did the BIA's detailed analysis persuade the Ninth Circuit to alter its position? Not in the slightest. One month later, at the end of February 2006, the court followed its earlier Perez-Gonzalez line of reasoning, as well as that of the Tenth Circuit in Padilla-Caldera, by holding that INA 245(i) trumps the permanent bar. Acosta v. Gonzales, No. 04-72682 (9th Cir. 2006). In that case, just like in Mortera-Cruz, the alien had accrued more than one year of unlawful presence followed by a departure and illegal reentry. The immigration judge had denied his application for adjustment of status pursuant to INA 245(i) on the basis that the applicant was inadmissible due to INA 221(a)(9)(C)'s permanent bar. The Ninth Circuit held that any conflict between 245(i) and 212(a)(9)(C) should be resolved in favor of the more recently-passed statute, which is supported by the ameliorative nature of 245(i) and its intention "to prevent the needless separation of loved ones."

However, the court refused to find, in the alternative, that the alien was eligible for the waiver of inadmissibility based on extreme hardship to a qualifying relative as set forth in INA 245(a)(9)(B)(v). Does that mean that the alien, although eligible to file for 245(i) adjustment, will be found inadmissible? No. According to the applicant's counsel, the court had already found that the applicant was not barred by INA 212(a)(9)(C) and remanded the case back to the agency to consider only the discretionary aspects of the adjustment application.

Where does all of this leave us? As any real estate broker will tell you, location is everything. If you are residing in the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI), you can file an I-212 waiver, before or in conjunction with your adjustment application, to cure a prior order of removal. If that is granted, you can also adjust status under INA 245(i), even though you have triggered the permanent bar through your subsequent illegal reentry. In addition, if you have triggered the permanent bar through illegal reentry after accruing more than one year of unlawful presence you may still be eligible for adjustment under INA 245(i), which effectively trumps the permanent bar.

If you reside in the Tenth Circuit (CO, KS, MN, OK, UT, WY), you are precluded from adjusting under 245(i) if you have triggered the permanent bar through reentry after a prior order of removal, but not if you have triggered it through reentry after one year of unlawful presence.

And if you live in the Fifth Circuit (LA, TX, MS), or in one of the circuits that has not ruled on this issue, the permanent bar trumps eligibility for adjustment under 245(i). You must leave the United States for ten years before filing an I-212 waiver and seeking to consular process.

The BIA has fashioned a way of reading the regulatory language governing the filing of I-212 waivers consistently with adjustment under INA 245(i), the permanent bar under INA 212(a)(9)(C), and the agency's own interpretation of these provisions. On the other end of the spectrum, the Ninth Circuit has found them inherently inconsistent, and has deferred to the regulatory language and Congressional intent. Until the Supreme Court steps in to resolve the current split in the circuit courts over this issue as it is about to do with the retroactive application of INA 241(a)(5) we have to live with this inequality and uncertainty, just like buyers comparing the price of homes in different neighborhoods in an unstable housing market.


About The Author

Charles Wheeler, Esq. is the Director of Training and Technical Support at the Catholic Legal Immigration Network (CLINIC). He is also the editor of the forthcoming two books, "Child Status Protection Act: A Practitioner's Guide, New 2006-2007 Edition" and "Family-based Immigration: A Practitioner's Guide, New 2006-2007 Edition".


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