BIA held Section 245(i) Unavailable to Reentrants with Prior Violations

Litigation surrounding section 245(i) of the Immigration and Nationality Act often involves complex factual and legal issues. Matter of Miguel LEMUS-Losa, 25 I&N Dec. 734 (BIA 2012), a recent BIA decision on section 245(i) is such an example.  In LEMUX, the BIA held that adjustment of status under section 245(i) is unavailable to an alien who is subject to the 3-year and 10-year bars under section 212(a)(9)(B)(i)(II) of the Act, without a waiver.

Section 245(i) was enacted in 1994 by Congress to allow certain applicants for adjustment of status in the U.S. to be eligible to receive their permanent resident status even though they entered the U.S. without having been formally inspected by an immigration officer first.  However, Section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed two additional grounds of inadmissibility for foreigners who have prior violations of immigration laws.  First, section 212(a)(9)(B)(i)(II) of the Act imposes the 3-year and 10-year bars for those who have been present in the U.S. unlawfully.   Second, section 212(a)(9)(C)(i)(I) punishes those individuals who reentered or attempted to reenter the U.S. after prior violations. 

In this case, the foreigner reentered the U.S. without authorization after having been present in the U.S. for more than one year.  He then applied for adjustment of status.  Both the immigration court and the BIA denied his request based on the 10-year-bar under 212(a)(9)(B)(II) of the Act. The case was appealed to the 7th Circuit, which disagreed and remanded the case back to the BIA for another decision.  The 7^th Circuit’s decision is based on BIA’s failure to examine the differences between section 212(a)(9)(B)(i)(II) and section 212(a)(9)(C)(i)(I) of the Act.  Section 212(a)(9)(C)(i)(I) makes it inadmissible for foreigners who had accrued one year of unlawful presence or who had been previously deported from the U.S., and then reentered or attempted to reenter the U.S. again.  The 7^th Circuit reasoned that these reentrants’ behavior are more serious than the first class of individuals who are merely “seeking admission” after accruing unlawful presence.

On remand, the BIA analyzed the statutes again and came to the same conclusion that section (a)(9)(B)(i)(II) or the 10-year-bar still bars the applicant from adjustment in spite of section 245(i).  According to the BIA, the meaning of “seeking admission” is a lot broader than the general meaning of the term and covers many different types of situations.  The BIA concludes that although section (a)(9)(B)(i)(II) and section (a)(9)(C)(i)(I) are different, neither section covers mere“entry without inspection” or other conduct that section 245(i) was designed to forgive.  Ultimately, the BIA decided to remand the case to the immigration judge to examine whether section (a)(9)(C)(i)(I) also applies here as the applicant apparently reentered the U.S. after prior violations.  The final chapter of this case has yet to be written.