LEMUS
25 I. & N. Dec. 734
| BIA | 2012Background
- Respondent Lemus-Losa, Mexican citizen, entered U.S. without inspection circa 1998–1999, lived unlawfully ~2 years, departed in 2001, reentered unlawfully in 2003 and remained; removal proceedings began in 2005.
- Respondent conceded removability under §212(a)(6)(A)(i) but sought adjustment of status under §245(i).
- §245(i) requires physical presence and admissibility for permanent residence or waiver; respondent is inadmissible under §212(a)(9)(B)(i)(II) for accrued unlawful presence and departure within 10 years, absent a waiver.
- Board previously dismissed Lemus in 2007; Seventh Circuit remanded Lemus-Losa v. Holder (2009) leading the Board to reaffirm that §212(a)(9)(B)(i)(II) bar applies absent waiver, while remanding for further fact-finding on emergent issues.
- Record on remand under guidance from Seventh Circuit asks Immigration Judge to assess whether time elapsed since departure affects inadmissibility and whether §212(a)(9)(C)(i)(I) inadmissibility may apply; Board dismissed appeal and remanded for new decision.
- Court ordered remand and new decision consistent with analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §212(a)(9)(B)(i)(II) inadmissibility bars §245(i) adjustment absent waiver | Lemus argues §245(i) forgives unlawful presence; waiver exists via §212(a)(9)(B)(v) | DHS argues literal admissibility requirement in §245(i)(2)(A) must be satisfied; no implicit waiver for §212(a)(9)(B)(i)(II) | Inadmissibility bars §245(i) absent waiver |
| Whether §212(a)(9)(B)(i)(II) is coterminous with §212(a)(6)(A)(i) or §212(a)(9)(C)(i)(I) to justify different treatment | Lemus-Losa relied on Briones-like reasoning | Differences between 9(B)(i)(II) and 9(C)(i)(I) matter; not coterminous | No, not coterminous; but differences do not justify bypassing §245(i) inadmissibility without waiver |
| Whether differences between §212(a)(9)(B)(i)(II) and §212(a)(9)(C)(i)(I) warrant differential §245(i) handling | Seeks equivalence reduction for 9(B)(i)(II) class | 9(B)(i)(II) not equivalent to 9(C)(i)(I) but still substantial inadmissibility | Differences acknowledged but do not support automatic §245(i) relief without waiver |
| Whether the time elapsed since departure could vitiate §212(a)(9)(B)(i)(II) inadmissibility on remand | Argument over timing impact rests on factual findings | Record should be developed to determine effect of time | Remand to Immigration Judge for fact-finding on timing and related grounds |
| Whether the DHS may raise §212(a)(9)(C)(i)(I) inadmissibility on remand | Respondent argues DHS waived by not raising earlier | DHS may raise new grounds on remand; burden on respondent to prove admissibility | DHS may raise on remand; remand to consider new ground |
Key Cases Cited
- Matter of Briones, 24 I&N Dec. 355 (BIA 2007) (admissibility requirement under §245(i) not extended to §212(a)(6)(A)(i) mere absurdity)
- Matter of Lemus, 24 I&N Dec. 373 (BIA 2007) (245(i) admissibility requires not being inadmissible or having waiver; sets groundwork for Lemus-Losa)
- Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009) (Seventh Circuit remanded for addressing §212(a)(9)(B)(i)(II) vs §245(i) nuances)
- Cheruku v. Att’y Gen. of U.S., 662 F.3d 198 (3d Cir. 2011) (distinguishes 9(B)(i)(II) from 9(C)(i)(I) for purposes of adjustment)
- Herrera-Castillo v. Holder, 573 F.3d 1004 (3d Cir. 2009) (discusses waiver implications for inadmissibility grounds)
- Demarest v. Manspeaker, 498 U.S. 184 (1991) (absurd results exception to statutory text)
- Lamie v. U.S. Trustee, 540 U.S. 526 (2004) (statutory interpretation presumption that Congress means what it says)