AYALA
Case Information
In re Pablo AYALA-Arevalo, Respondent
File A42 989 249 - Philadelphia
Decided November 30, 1998
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A discretionary waiver under section 212(h) of the Immigration and Nationality Act,
JONES, Board Member:
This is a timely appeal from an April 22, 1997, decision of the
Immigration Judge, finding the respondent deportable under sections
241(a)(1)(A) and (2)(A)(i) of the Immigration and Nationality Act,
I. BACKGROUND
The respondent is a 29-year-old native and citizen of Ecuador. He
entered the United States in January 1989 and reentered on July 3, 1991, at
which time he was admitted as an immigrant. On April 26, 1996, the
respondent was convicted in the United States District Court, District of
Rhode Island, of conspiracy in violation of
The respondent testified that he had engaged in fraudulent activity before leaving the United States and had continued this activity upon his return. The details concerning this crime are described in a grand jury indictment. In brief, the respondent served as vice-president of a firm that purportedly offered assistance in obtaining legitimate employment author- ization documents from the Immigration and Naturalization Service. For a fee of several hundred dollars, the respondent’s firm would prepare fraudu- lent applications for asylum, in which false allegations of persecution were made for the purpose of obtaining employment authorization.
The Service attempted to establish that the respondent was an aggra-
vated felon, in that the amount of loss to the victim of the conspiracy was
more than $200,000 dollars (specifically, according to notes made by an
investigator, $714,000). However, the Immigration Judge found that the
Service did not establish that the respondent was within the definition of an
aggravated felon, due to a lack of evidence in the record relating to the
amount of loss to the victim.
See
section 101(a)(43)(M)(i) of the Act,
II. ISSUE On appeal, the respondent argues that he is not bound by the require- ment that 7 years of lawful presence be demonstrated in order to qualify for a waiver of inadmissibility under section 212(h) of the Act. It is the respon- dent’s position that the relevant statutory provision differentiates between two classes of individuals: those who have been admitted for lawful per- manent residence while concealing the presence of grounds of inadmissi- bility (in this case, ongoing criminal activity), and those who have been admitted for lawful permanent residence without having any grounds of inadmissibility to conceal. Stated differently, in the respondent’s view, aliens who have been “lawfully” admitted for permanent residence are dif- ferent from those whose admission was later found to have been in viola- tion of law, and consequently determined to be unlawful. The respondent seeks to distinguish his case from that of other individuals previously admitted for permanent residence who lack the requisite 7 years of lawful residence because he was determined by the Immigration Judge to have been inadmissible on the date he was admitted to the United States as a law- ful permanent resident on the basis that he had admitted that he was involved in an ongoing criminal conspiracy at that time. Therefore, the respondent argues that he should not be precluded from applying for relief under section 212(h) of the Act.
III. ANALYSIS Section 212(h) of the Act was recently amended by section 348(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-639 (“IIRI- RA”), Two new sentences were added, which read as follows:
No waiver shall be granted under this subsection in the case of an alien who has pre- viously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States, No court shall have juris- diction to review a decision of the Attorney General to grant or deny a waiver under this subsection. Section 212(h) of the Act (emphasis added).
The Act defines “lawfully admitted for permanent residence” as fol- lows:
The term “lawfully admitted for permanent residence” means 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. Section 101(a)(20) of the Act. While the language of section 212(h) distin- guishes those who have been previously admitted for permanent residence from those who have not, see Matter of Michel , 21 I&N Dec. 1101 (BIA 1998), the statute does not, either expressly or by implication, distinguish between those whose admission was lawful and those who were previously admitted for lawful permanent residence but are subsequently determined to have been admitted in violation of the law. To read such a distinction into the statute would be arbitrary and capricious, Cf. Matter of Pineda , 21 I&N Dec. 1017, at 1021 n.2 (BIA 1998) (“The fact that a reading of a statutory provision could lead to seemingly arbitrary and capricious results is not in itself determinative of the issue of statutory interpretation, but it can be a matter to be considered in one’s analysis of the meaning of particular words.”). We are not persuaded by the respondent’s argument that we should read his proposed distinction into the law by focusing on the term “lawfully admitted” and disregarding the entire phrase that provides the context for that term, namely “previously been admitted” to the United States as an alien lawfully admitted for permanent residence. Section 212(h) of the Act.
The respondent does not meet the revised criteria for eligibility for a waiver under section 212(h) of the Act. His case is not similar to that of the respondent in Matter of Michel, supra , who was never admitted to the United States as a lawful permanent resident, and was thus unaffected by statutory language limiting eligibility of those who had been admitted as lawful permanent residents. The respondent in this case had been, at the time he was convicted, admitted to the United States as a lawful permanent resident.
In support of his interpretation, the respondent cites three Board cases
that analyze the meaning of the phrase “lawfully admitted for permanent
residence” in the context of registry proceedings under section 249 of the
Act,
Further, the respondent, who does not yet have a final order of depor- tation, still enjoys the status of an alien who has been “lawfully admitted for permanent residence,” which he acquired in July 1991. He was not con- victed of the offense of conspiracy to defraud the Government until April 26, 1996, and the Order to Show Cause and Notice of Hearing (Form I-221) was not issued until May 20, 1996. The fact that the respondent’s criminal behavior may, in the future, prevent him from continuing to enjoy his status as one lawfully admitted for permanent residence does not confer on him the preferential treatment implicit in the current language of section 212(h), accruing to an alien who has not previously been admitted as an alien law- fully admitted for permanent residence. See Matter of Michel, supra; cf. Matter of Wadud , 19 I&N Dec. 182, 185 (BIA 1984) (declining to afford section 212(c) relief only to those aliens whose crime under section 241(a)(5) involved moral turpitude because to do so would be to reward those guilty of a more egregious offense for their greater culpability, and the Board was unable to conclude that Congress intended such an inequitable consequence to ensue from the implementation of section 212(c)).
Inasmuch as the respondent was admitted to the United States in law- ful permanent resident status and has failed to accrue 7 years of lawful res- idence since the date of his admission, he is ineligible for a waiver under section 212(h). Nothing in the language of the statute supports the proposi- tion that the respondent’s conviction for a crime involving moral turpitude can or should change the historical fact that, when he entered, it was in the status of a lawful permanent resident. Section 212(h) makes no provision for the collateral effect which the respondent seeks, and we decline to read any such provision into the statute.
IV. CONCLUSION The respondent is clearly precluded from section 212(h) relief because he was previously admitted to the United States as a lawful permanent res- ident, We therefore conclude that the Immigration Judge properly found him to be ineligible for a waiver, Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.
DISSENTING OPINION: Lory Diana Rosenberg, Board Member
I respectfully dissent.
I cannot agree with the majority’s interpretation concerning the proper
reading of section 212(h) of the Immigration and Nationality Act,
If available, a waiver granted under section 212(h) of the Act could overcome several grounds of inadmissibility, including a conviction for a single offense of simple possession of 30 grams or less of marijuana; a con- viction for (or admission of having committed) a single crime of moral turpitude; multiple convictions for offenses in which the aggregate sentence to confinement was more than 5 years (without regard to whether these offenses are crimes of moral turpitude); a purpose in coming to the United States or conduct involving prostitution or commercialized vice; or the commission of criminal activity regarding which the alien has asserted immunity from prosecution under the statute. A waiver under section 212(h) of the Act is, of course, subject to satisfaction of the substantive statutory elements articulated in the statute, and then subject to the discretion of the Attorney General, Matter of Mendez , 21 I&N Dec. 296 (BIA 1996).
The majority bases its denial of the respondent’s appeal on its interpretation of the amended statute and does not reach the merits of the respondent’s case. The question before us is: If the respondent was admit- ted as a lawful permanent resident, either based on a misrepresentation, or without the disclosure of facts that would have warranted finding him inadmissible and subject to removal, can his admission as a lawful per- manent resident be said to be a prior lawful admission? The respondent argues that his prior admission as an immigrant cannot be considered law- ful because, based on his criminal activity, he actually was inadmissible at the time he was admitted, making his admission unlawful. The majori- ty concludes, nonetheless, that since he was admitted in the status of a lawful permanent resident, even an unlawful or invalid admission would disqualify him from eligibility for the waiver.
According to the majority, the statute does not distinguish “either expressly or by implication” between those who, properly or erroneously, are admitted in lawful permanent resident status. But that is not entirely true, because as discussed below, both the statute and our precedents defi- nitely distinguish between lawful and unlawful admissions, even if the sta- tus conferred is ostensibly a “lawful” one.
First, the statutory language used in section 212(h) invokes the term
“admitted” twice in the same clause in the same sentence. It states that no
waiver shall be granted to an alien who “has previously been
admitted
. . .
as an alien
lawfully admitted for permanent residence
.” (Emphasis added.)
The meaning of the word “admitted,” as used initially, in the phrase “has
previously been admitted,” is specified in section 101(a)(13)(A) of the Act,
8 U.S.C. 1101(a)(13)(A) (Supp. II 1996), as “the
lawful
entry of the alien
into the United States.” (Emphasis added.) The word “lawful” has a plain
meaning that we are bound to apply in interpreting the meaning of the word
“admitted” in section 212(h),
Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc.
, 467 U.S. 837, 842-43 (1984);
K Mart Corp. v.
Cartier, Inc.
,
As understood in both common and legal usage, “lawful” means
“allowed by law.”
See Webster’s II New Riverside University Dictionary
680 (1984),
Black’s Law Dictionary
defines “lawful” as meaning “legal;
warranted or authorized by law.”
Black’s law Dictionary
885 (6th ed. 1990)
(“
Black’s
”).
Black’s
goes on to note that the principal difference between
the terms “lawful” and “legal” is “that the former contemplates the sub-
stance of law, the latter the form of law.”
Id.
Thus, the term “lawful,” in
relation to defining “admitted,” goes further than to merely denote compli-
ance with form or technical requirements and refers to the actual content,
Id.
Consequently, “admitted,” as used in “has previously been admitted,”
contemplates a lawful admission in essence, not merely one that may
appear to have been legal in form,
Pioneer Inv. Services Co. v. Brunswick
Assocs. Ltd. Partnership
,
Second, to determine the meaning of the term “admitted,” as used in the second portion of the clause, the majority relies on the statutory definition of the term “admitted,” as used in the phrase “lawfully admitted for perma- nent residence.” See section 101(a)(20) of the Act. But that begs the ques- tion, as the statute states only that “‘ lawfully admitted for permanent resi- dence’ means the status of having been lawfully accorded the privilege of residing permanently.” Id. (emphasis added). Stating that a person is law- fully admitted for permanent residence if he has been lawfully accorded the privilege of residing permanently in the United States says little more than that his admission in that status was accorded consistent with a prescribed process. The term “lawful” as used in the context of “lawfully accorded” clearly refers to process, not substance. It is clear that an individual could be “lawfully accorded the privilege of residing permanently,” when the real facts underlying his application for admission would not support a lawful admission.
Third, as the respondent argues, he was inadmissible and ineligible for
admission as a lawful permanent resident before (as well as after) his 1991
admission, because he engaged in a scheme involving fraudulent activity in
which he submitted requests for employment authorization to the
Immigration and Naturalization Service on behalf of unwitting asylum
applicants and others. An invalid or unlawful admission for lawful perma-
nent residence is not a lawful admission, and once it is determined not to
have been lawful, such an admission is afforded no legal weight until and
unless it is validated,
See, e.g., Matter of Sosa-Hernandez
, 20 I&N Dec. 758
(BIA 1993) (finding that after a grant of a waiver under section 241(f) of
the Act,
As we have held that a supposedly lawful admission that later is deter-
mined not to have been lawful does not confer any benefits on the offend-
ing alien that normally would have been associated with a lawful admission,
I find it difficult to agree with the majority that the respondent’s supposed-
ly lawful admission—now argued by him to be unlawful—forecloses him
from eligibility under the terms of section 212(h) of the Act, as amended,
For example, in
Matter of Garcia
, 21 I&N Dec. 254, at 261 (BIA 1996), the
Board found that because the respondent, who was subject to a deportation
order, had failed to depart voluntarily before he went to the consulate and
obtained his immigrant visa, and never had received advance permission to
apply for admission prior to his return, “
the respondent was never “lawful-
ly “ accorded the privilege of residing permanently
in the United States as
an immigrant, and he is therefore ineligible for relief under section 212(c)
of the Act.” (Emphasis added.) As support for this interpretation, we cited
our decision in
Matter of Wong,
14 I&N Dec. 12 (BIA 1972),
aff’d sub nom.
Lai Haw Wong v. INS
,
Moreover, we have recognized that a permanent resident alien seeking adjustment of status in deportation proceedings may be treated simultane- ously as deportable and as an applicant for admission, See Matter of Gonzalez-Camarillo , 21 I&N Dec. 937 (BIA 1997); Matter of Connelly , 19 I&N Dec. 156 (BIA 1984); see also Matter of Gabryelsky , 20 I&N Dec. 750 (BIA 1993) (finding that a lawful permanent resident may apply for a section 212(c) waiver in connection with an application for adjustment of status made in deportation proceedings); Matter of Rainford , 20 I&N Dec. 598 (BIA 1992) (holding that adjustment of status in the context of a depor- tation proceeding would result in disposing of the ground of deportability at issue). Thus, although a respondent maintains his permanent resident sta- tus until a final administrative order is issued, Matter of Lok , 18 I&N Dec. 101 (BIA 1981), allowing the respondent to apply for adjustment of status and a waiver under section 212(h) of the Act before the entry of a final administrative order stripping him of his lawful permanent resident status on the basis it is invalid is not dissimilar from the course we followed in those cases.
I believe that the varied usage in the statute of the terms, “admitted,” “admission,” “lawfully admitted,” and “lawfully admitted for permanent residence,” found scattered throughout the statute, would be given effect most reasonably if we were to settle on a consistent construction of what constitutes an admission and what constitutes a lawful admission. It is implicit that permanent resident status describes a lawful status, and, simi- larly, a lawful admission for permanent residence seems most reasonably construed as referring to a lawful admission in substance, rather than mere- ly in form. When what appears to be a lawful admission turns out to have been, in fact, an unlawful admission, it should be treated as such and the respondent’s previous “lawful” admission should be rendered invalid.
The majority’s conclusion that the respondent’s admission for perma-
nent residence is lawful because he went through the regular procedures
seems to me to rely on form over substance and semantics rather than rea-
son. By taking this approach, the majority concludes, in essence, that an
admission for permanent residence is lawful even if it is based on fraud or
ineligibility for permanent resident status, and even if it would not be con-
sidered a valid status for most, if not all, other purposes. Although this may
be a way to preclude the respondent’s application for a discretionary waiv-
er under section 212(h) of the Act in conjunction with a discretionary appli-
cation for adjustment of status, it strikes me as result-oriented,
Cf.
Senathirajah v. INS
,
I conclude that a lawful admission for permanent residence that proves to be invalid is not a lawful admission for permanent residence that poses a bar to eligibility to apply for a waiver under section 212(h) of the Act, Consequently, I dissent.