Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014) - Readjustment of Status Not Permitted Under Asylee Adjustment Provision

 

Introduction: Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014)

On March 27, 2014, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014) [PDF version]. In the decision, the Board held that an alien who adjusts status from that of asylee to that of an alien lawfully admitted for permanent residence under section 209(b) of the Immigration and Nationality Act (INA) cannot subsequently readjust status under section 209(b).

In this article, we will examine the facts and procedural history of the Matter of C-J-H- and the Board's reasoning and decision. On August 3, 2017, the Board issued a decision in the Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017) [PDF version] wherein it clarified its holding in the Matter of C-J-H-. In Matter of N-A-I-, the Board held that when an alien adjusts status from asylee to that of an alien lawfully admitted for permanent residence under the asylee adjustment provision in section 209(b), the adjustment terminates the alien's status as an asylee. Please see our full article on Matter of N-A-I- for a discussion of that decision [see article].

Matter of C-J-H-

Facts and Procedural History of Matter of C-J-H-: 27 I&N Dec. at 284-285

The respondent, a native and citizen of the People's Republic of China, was admitted to the United States as an asylee on January 10, 2006. The respondent adjusted status to that of a lawful permanent resident under section 209(b) of the INA on November 20, 2007.

On November 9, 2011, the respondent was convicted in Federal court of a conspiracy to traffic in counterfeit goods under 18 U.S.C. 371 and 2320(a) (2006). The respondent was sentenced to a term of imprisonment of 12 months and 1 day.

Based on the conviction, the Department of Homeland Security (DHS) charged that the respondent was removable under sections 237(a)(2)(A)(i) and (iii) of the INA as an alien convicted of a crime involving moral turpitude (CIMT) and as an alien convicted of an aggravated felony.

In removal proceedings, the respondent conceded that he was removable as charged. As a defense from removal, the respondent applied for readjustment of status under the asylee adjustment provision found in section 209(b) and for a waiver of inadmissibility under the asylee waiver provision in section 209(c). The Immigration Judge concluded that the respondent was ineligible to readjust status under section 209(b) and was also ineligible for the associated waiver of inadmissibility under section 209(c). The Immigration Judge's decision was based on the conclusion that the section 209 does not permit readjustment of status by a lawful permanent resident.

Respondent's Argument on Appeal: 27 I&N Dec. at 285

The respondent appealed the denial of his readjustment of status application to the BIA. The respondent acknowledged that section 209(b) does not explicitly authorize readjustment of status for an alien who had previously been granted adjustment of status under the same section. The respondent also acknowledged that section 209(a) — the refugee adjustment provision — expressly prohibits refugees who had acquired adjustment of status under the section to readjust status. The respondent argued that Congress' omission of a bar to readjustment of status for asylees under section 209(b) indicated that Congress intended for asylees to be treated differently from refugees — for whom there is an explicit bar to readjustment.

Board's Analysis and Conclusion: 27 I&N Dec. at 285-287

The Board would ultimately disagree with the respondent's argument. In the foregoing paragraphs, we will explain the Board's reasoning.

The Board stated that the fact that section 209(b) is silent on asylee readjustment does not mean that section 209(b) authorizes asylee readjustment. To this effect, the Board cited to the decision of the Supreme Court of the United States in Negusie v. Holder, 555 U.S. 511, 518 (2009) [PDF version], wherein the Court held that “Congress's silence is not dispositive with respect to statutory construction” (quoting from the Board).

The Board determined that the plain terms of section 209(b) applies to asylees seeking to adjust status from asylee status to that of a lawful permanent resident. The Board noted that the respondent had completed this process in 2007, well before his conviction and subsequent removal proceedings. The Board held that “[o]nce he became a lawful permanent resident, he no longer had the status of an asylee.”

The Board noted that in the Matter of Smriko, 23 I&N Dec. 836, 841 (BIA 2005) [PDF version], it had reasoned similarly with regard to refugees. In Matter of Smriko, the Board held that a refugee admitted as a lawful permanent resident is subject to removability under section 237 of the INA notwithstanding the fact that his or her refugee status was not explicitly terminated under section 207(c)(4) (providing for the termination of refugee status). The key point of the Board's decision was that a refugee who adjusts status to that of lawful permanent resident does not retain refugee status — and the associated protections of refugee status — subsequent to his or her adjustment.

The Board applied the same principle it set forth in Matter of Smriko with regard to refugees who adjust status to asylees who have adjusted status. The Board stated that once an asylee adjusts status under section 209(b), he or she no longer qualifies post-adjustment as an asylee.

The Board noted that in Robleto-Pastora v. Holder, 591 F.3d 1051, 1060 (9th Cir. 2010) [PDF version], the United States Court of Appeals for the Ninth Circuit addressed the issue in the asylum context and reached the same conclusion as the Board in the instant case. In that case, the Ninth Circuit stated that section 209(b) does not apply to “an asylee who already acquired [lawful permanent resident] status.” The Ninth Circuit relied on the Seventh Circuit decision in Gutnik v. Gonzales, 469 F.3d 683, 692 (7th Cir. 2006) [PDF version], overruled on other grounds by Arobelidze v. Holder, 653 F.3d 513 (7th Cir. 2011), and the Fourth Circuit decision in Saintha v. Mukasey, 516 F.3d 243, 251-53 (4th Cir. 2008) [PDF version], both of which followed the Board's interpretation of the refugee statute on the same issue for refugees. The Ninth Circuit noted that section 209(a) explicitly precludes refugee readjustment while section 209(b) does not. However, it concluded that “the language of section 209(b) is nonetheless plain.” 591 F.3d 1051, 1061.

The Board agreed with the conclusion reached by the Ninth Circuit that the language of section 209(b) is “plain” and that it precludes readjustment of status. However, the Board stated that even if it had instead concluded that the language of section 209(b) was ambiguous, it would have nevertheless concluded that the statute precludes readjustment of status based on “the language and structure of the [INA] as a whole.”

Firstly, the Board noted that the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, regularized procedures governing both the admissions of refugees and the adjudication of asylum claims. The Board stated that it was “unaware of any legislative history that specifically discusses the differences between sections 209(a) and (b)” of the INA. However, the Board cited to Robleto-Pastora in noting that the legislative history of the Refugee Act showed that Congress saw refugees and asylees as having similar status. Id.

The Board noted that the implication of the respondent's claim, that the omission of a bar to readjustment of status in section 209(b) means that Congress intended that 209(b) permits readjustment of status, would be that Congress intended that asylees are eligible for a unique form of relief unavailable to similarly situated refugees. Id. The Board agreed with the Ninth Circuit that, consistent with the history of the Refugee Act, this would not be the proper reading of the provision. The Board also found it “logical to conclude” that an alien who adjusts status under section 209(b), and who is then subject to removal for engaging in criminal conduct, is not eligible for readjustment of status under section 209(b). Id.

The respondent's final argument was that the Board has acknowledged that readjustment of status is available in other contexts involving section 245(a) adjustment. In the Matter of Mendez, 21 I&N Dec. 296 (BIA 1996) [PDF version], and the Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993) [PDF version], the Board held that an alien may seek readjustment of status as a form of relief from removal when an immigrant visa would be immediately available in conjunction with any necessary waivers of inadmissibility (the cases involved section 212(h) and old section 212(c) waivers respectively).

However, the Court did not find this line of cases involving readjustment of status under section 245(a) to be applicable to section 209(b). The Board noted that section 209(b) “has different languages and narrower purposes” than the broad adjustment provision in section 245(a).

The Board added that it was not persuaded that the respondent should be eligible for readjustment under section 209(b) because he was ineligible for readjustment under section 245(a).

Based on its reasoning, the Board found no error in the Immigration Judge's denial of the respondent's application for adjustment of status in conjunction with a waiver of inadmissibility under sections 209(b) and (c) respectively. For this reason, it dismissed the respondent's appeal.

Conclusion

In Matter of C-J-H-, the Board concluded that section 209(b) does not permit readjustment of status. The basis of this decision is that once an asylee adjusts status to lawful permanent resident status under section 209(b), he or she is no longer an asylee. A permanent resident who had adjusted status under section 209(b) may seek other forms of relief from removal, such as withholding of removal, protection under the convention against torture, or even asylum if he or she can establish eligibility notwithstanding the one-year time bar.

Please see our discussion on Matter of N-A-I-, which expands upon and clarifies the reasoning in Matter of C-J-H- [see article].