CRUZ DE ORTIZ
25 I. & N. Dec. 601
| BIA | 2011Background
- Respondent Paula Cruz de Ortiz, a Dominican citizen, was convicted in 1989 in Puerto Rico for using an altered passport to gain entry and was deported.
- She later entered the U.S. as a conditional lawful permanent resident in 1995; the condition was removed in 1996 after I-751 approval.
- In 2009 DHS charged her as removable for being inadmissible at entry due to prior crime and misrepresentation; she admitted to the charges.
- Immigration Judge terminated proceedings relying on Garcia v. Attorney General (3d Cir. 2009) to apply §246(a) 5-year rescission period to removal.
- Board of Immigration Appeals sustained DHS’s appeal, remanding for new proceedings because §246(a) does not apply to her as she was admitted via immigrant visa, not through adjustment.
- The Board remanded to allow eligibility for any relief she may obtain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §246(a) apply to a respondent admitted as a conditional LPR via consular processing? | Ortiz argues Garcia binds to apply §246(a) to removal. | DHS contends §246(a) restraints apply only to adjustment-of-status, not to consular admissions. | §246(a) does not apply; Garcia is inapplicable. |
| Is Garcia controlling law for this case in light of Bamidele characterization? | Ortiz urges Garcia aligns with Bamidele’s broader use of the 5-year bar. | DHS argues Garcia is controlling and limits §246(a) to rescission for adjusted status. | Garcia control is limited; the Board distinguishes Ortiz's admission from adjustment. |
| Does the language ‘otherwise adjusted under any other provision of law’ encompass consular processing admissions? | Ortiz asserts that language covers those admitted through other adjustment-like provisions. | DHS argues it refers to adjustees, not prima facie admissions via consular processing. | Language does not apply to Ortiz; consular process admissions are not ‘adjustment.’ |
Key Cases Cited
- Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009) (binds that §246(a) 5-year bar extends to removal when fraud in adjustment is involved)
- Matter of Bamidele, 99 F.3d 557 (3d Cir. 1996) (5-year limitation applies to rescission; distinction from removal proceedings)
- Stolaj v. Holder, 577 F.3d 651 (6th Cir. 2009) (disagrees with Garcia on applicability of §246(a) to removal)
- Kim v. Holder, 560 F.3d 833 (8th Cir. 2009) (supports contrary view to Garcia on §246(a) applicability)