A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, April 5, 2014

BIA held Asylees may not adjust status twice

A foreign national, after having been granted political asylum by the United States, adjusted his status to became a permanent resident.  However, due to his conviction for conspiracy to traffic in counterfeit goods, he was deportable from the United States as a non-citizen convicted of a crime involving moral turpitude (CIMT) and an aggravated felony.  Can this person apply for adjustment of status again based on his previous asylee status to stay in the United States?  The answer is negative, according to a recent decision by the Board of Immigration Appeals (BIA) in Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014).

Under the current immigration law, a foreigner who has been convicted of an aggravated felony has little chance of fighting deportation from the United States.  Aware of his predicament, the respondent in the above case came up with a creative argument to stay here.  He argued that because he was granted political asylum before, he should be able to re-adjust his status to become a lawful resident again pursuant to section 209(b) of the Immigration and Nationality Act ("the Act").   In so arguing, he was also hoping that he could also apply for a waiver for his criminal conviction  under section 209(c) of the Act.

Section 209(c) if the Immigration Act makes some grounds of inadmissibility - public charge ground, lack of labor certification, not in possession of a valid, unexpired immigrant visa - inapplicable. Further this section of law also allows the government to waive some other grounds of inadmissibility including criminal grounds such as crimes involving moral turpitude (CIMT) in the exercise of discretion. However, this section of law cannot be used to waive charges relating to drug trafficking, espionage or sabotage, terrorist activities, and foreign policy.

The respondent made two main arguments to BIA.  First, unlike section 209(a) of the Act, which specifically disallows refugees to apply for adjustment of status twice, section 209(b) does not have such prohibition. However, mere absence of a negative does not prove a positive.  The fact that Congress does not specifically prohibits readjustment of asylees does not mean  that it is allowed.  The case law has held that like refugees, asylees cease to be asylees once they have adjusted status to lawful resident status.  As such, adjustment under section 209(b) is no longer available to them.  BIA based on its conclusion on the language and structure of the Act, as well as the legislative history.

Secondly, the respondent also argues that since readjustment is allowed by the Board under section 245(a) of the Act in conjunction with waiver applications, he should also be able to re-adjust under section 209(b). It is true that certain legal residents who have been placed in deportation proceedings are allowed to apply for adjustment of status again in conjunction with waivers of grounds of inadmissibility.  However, BIA is not convinced by this argument as adjustment pursuant to section 245(a) is different from adjustment of asylees pursuant to section 209(b), which "has different language and narrower purposes."  

Consequently, BIA held that an asylee who has adjusted status to lawful permanent resident cannot subsequently readjust his status under section 209(b) of the Act.  The Immigration Judge’s decision was upheld and the appeal was dismissed.

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