Introduction: The Matter of Villalobos

On March 10, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016) [PDF version]. The decision concerned adjustment of status under section 245A of the Immigration and Nationality Act (INA) for applicants who entered the United States prior to January 1, 1982, and benefited from legalization also under 245A. The Board held that Immigration Judges have jurisdiction to determine whether an alien who adjusted to permanent resident status under section 245A(b)(1) was eligible for adjustment of status for purpose of determining the alien’s current removability and eligibility for relief from removal. Furthermore, the Board held that an alien who adjusted status through the legalization provisions in 245A must have been admissible when he or she applied for temporary resident status and again when he or she applied for adjustment of status under 245A(b)(1). Finally, the Board held that an alien who was inadmissible at the time he or she adjusted status under 245(b)(1) was not lawfully admitted for permanent resident and is ineligible for a waiver of inadmissibility under the old section 212(c) of the INA.

In this article, we will discuss the facts and procedural history of the case, the Board’s decision, and what it means in the removal and deportation defense context for aliens who obtained benefits under section 245A.

Facts of the Case and Procedural History

The respondent , a native and citizen of Mexico, entered the United States without inspection in 1979. On May 1, 1988, the respondent was admitted into the United States as a temporary resident under section 245A(a) of the Immigration and Nationality Act (INA). The provision allowed for certain aliens who had entered the United States unlawfully before January 1, 1982, to apply for temporary resident status during a 12 month period beginning in 1986. On November 11, 1991, the respondent adjusted from temporary resident status to permanent resident status under 245A(b)(1). Section 245A(b)(1) allowed for those who had been granted temporary residency under 245A to apply for adjustment to permanent residency within 2 years of obtaining temporary resident status.

However, both while the respondent was a temporary resident and after he had been granted adjustment to permanent resident status, he was convicted of the following offenses in Florida:

Possession of cocaine (Feb. 11, 1991);
Counterfeit or altered lottery tickets (Apr. 19, 1991);
Possession of cocaine (May 29, 1991); and
Possession and sale, purchase, or delivery of cocaine (Nov. 3, 1992).

Please take note that the first three above convictions occurred before the respondent had adjusted to permanent resident status.

Although the respondent’s convictions had gone unnoticed during his adjustment of status adjudication, the Department of Homeland Security (DHS) discovered the convictions when the respondent later applied for a replacement Green Card. On the basis of the convictions, the DHS served the respondent with a notice to appear on October 2, 2007, and charged him with removability under sections 237(a)(2)(A)(i) (crime of moral turpitude) and (B)(i) (conviction relating to a controlled substance violation) of the INA. On May 16, 2008, the DHS added an additional charge of removability under section 237(a)(1)(A), charging that the respondent had been inadmissible under section 212(a)(2)(A)(i)(II) [see article] for a controlled substance violation at the time he was granted adjustment of status under section 245A(b)(1).

The respondent conceded the first two charges of removability, but he denied that he had been inadmissible at the time he obtained permanent residency. Rather, the respondent argued “that he was lawfully admitted for permanent resident status as of the date he was granted temporary resident status in 1988.” Accordingly, the respondent argued that he was eligible for relief from removal under the former section 212(c) of the INA, which only applied to those admitted for permanent residency (no longer in effect, but applicable in the instant case because it was the law at the time of the respondent’s convictions).

The Immigration Judge found that the respondent was removable on all charges. Accordingly, because the respondent could not demonstrate he was admissible or eligible for a waiver of inadmissibility at the time he adjusted status, the Immigration Judge found that he had never been admitted for permanent residency and was, therefore, ineligible for relief from removal under the former section 212(c) of the INA.

The respondent appealed the decision to the BIA.

Issues

The Board had to decide three issues in the Matter of Villalobos.

Firstly, because the DHS has “exclusive jurisdiction” over applications for adjustment of status under section 245A, the Board had to determine whether Immigration Judges “have jurisdiction to determine whether an alien was eligible for a previous adjustment under section 245A(b)(1) [] for purposes of assessing removability and current eligibility for relief.”

Secondly, provided that the Board found that Immigration Judges did have jurisdiction, its next step would be to determine where the respondent was removable under section 237(a)(1)(A) as an alien who was inadmissible at the time he adjusted status under 245A(b)(1).

Thirdly, if the Board found that the respondent was inadmissible under section 237(a)(1)(A), it would have to determine whether the Immigration Judge was correct in finding that the respondent was ineligible for former section 212(c) relief.

BIA Analysis

A-Jurisdiction

The respondent argued that neither the Immigration Judge nor the Board had jurisdiction to consider whether he was admissible at the time he was granted adjustment of status under section 245A(b)(1). This is because, as the respondent argued, 245A gives exclusive jurisdiction over adjustment application to the DHS. The DHS countered that, once removal proceedings have been initiated, the Immigration Judge has jurisdiction to determine the respondent’s removability and possible eligible for relief from removal.

The Board acknowledged that section 245A and its implementing regulations give the DHS exclusive jurisdiction over adjustment of status applications filed under 245A(b)(1). However, the Board noted that the INA gives Immigration Judges and the Board jurisdiction to determine an alien’s removability in proceedings (see e.g., sections 240(a)(1) and (c)(1)(A) of the INA).

Citing to its precedent decision in the Matter of Singh, 21 I&N Dec. 427, 435 (BIA 1996) [PDF version], the Board held that section 245A does not prevent Immigration Judges and the Board from reviewing whether an alien who adjusted status under 245A(b)(1) is removable under section 237(a)(1)(A) as an alien who was inadmissible at the time of adjustment of status.

B-Removability

Having established that it had jurisdiction, the Board moved to consider whether the respondent was, in fact, inadmissible under section 237(a)(1)(A).

The respondent argued that he was not inadmissible at the time he became a permanent resident, because he became a permanent resident when he obtained temporary residency in 1988 instead of when he was granted adjustment of status in 1991. The distinction is significant because three of the respondent’s convictions occurred in between these two dates. To this effect, the respondent cited to Ninth Circuit precedent in Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) [PDF version], wherein the Ninth Circuit held that an agricultural worker who was granted temporary resident status under section 210(a)(1) had his admissibility determined as of the date of obtaining temporary residency and did not have his admissibility redetermined upon his automatic adjustment to permanent resident status under section 210(a)(2).

However, the Board found that the respondent’s circumstances were distinguishable from those in Perez-Enriquez. Firstly, the Board noted that section 245A requires that an applicant file one application for temporary resident status and then a subsequent application for adjustment of status to permanent resident status. For both applications, the Board noted that regulations require that the applicant establish his admissibility (8 C.F.R. 245a.2(e)(1) and 8 C.F.R. 245a.3(d)(1) respectively). The Board cited to its precedent decision in the Matter of Rosas, 22 I&N Dec. 616, 618 n.1 (BIA 1999) [PDF version], which held that an applicant must demonstrate that he or she is admissible in order to adjust status under section 245A.

The Board contrasted the requirement in 245A, wherein the applicant must demonstrate that he or she is admissible both for the temporary resident application and the adjustment of status application, with section 210(a)(2), which provides for automatic adjustment of status for an alien granted temporary residency under the provision without an additional admissibility determination.

Accordingly, the Board found that the respondent had obtained permanent residency was when his adjustment of status application was granted in 1991, rather than when he was granted temporary residency in 1988. Because the respondent was inadmissible at the time he was granted adjustment of status under 212(a)(2)(A)(i)(II), the Board found that the respondent was removable under section 237(a)(1)(A).

C-Relief from Removal

The Board noted that section 212(c) relief is available only to aliens “who have been lawfully admitted for permanent residence.” The Board noted that multiple circuits have held that 212(c) relief is not available to an alien who was not lawfully admitted for permanent resident status. Among the decisions cited1 by the Board was Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1313-17 (11th Cir. 2007) [PDF version], in which the Eleventh Circuit held that an alien who was granted permanent resident status by mistake was ineligible for section 212(c) relief. The Board also cited Monet v. INS, 791 F.2d 752, 753-55 (9th Cir. 1986) [PDF version], wherein the Ninth Circuit held that an alien who had concealed a drug conviction when he adjusted status was ineligible for relief under section 212(c). Moreover, the Board held in the Matter of Abdelghany, 26 I&N Dec. 254, 259 n.8 (BIA 2014) [PDF version], that section 212(c) is unavailable to an alien who obtained permanent resident status when he or she lacked entitlement to it. The Board also cited to the Matter of Kolomantangi, 23 I&N Dec. 548, 551 (BIA 2003) [PDF version], which we discuss on site [see section].

Because the respondent was inadmissible at the time he was granted adjustment of status, the Board held that the respondent had not been eligible to adjust status. Therefore, because the respondent had never been “lawfully” accorded permanent resident status, he was not eligible for relief under section 212(c).

Decision

The Board agreed with the Immigration Judge and the DHS on all of the pertinent issues. Accordingly, it dismissed the respondent’s appeal.

Conclusion: The Matter of Villalobos

The Matter of Villalobos establishes that both Immigration Judges and the Board may assess whether an alien was eligible to adjust status under the legalization provisions in section 245A of the INA in the context of determining removability and eligibility for relief from removal in immigration proceedings. Furthermore, the Matter of Villalobos joins a long line of judicial and administrative decisions holding that an alien must have been eligible to be granted permanent resident status at the time he or she became a permanent resident in order to be eligible for relief from removal as a permanent resident.

If an alien who benefited from legalization under section 245A believes that he or she may not have been eligible to adjust status (notwithstanding being granted adjustment of status), or is charged as removable for having not been eligible, he or she should consult with an experienced immigration attorney for a professional assessment of the specific situation.

  1. The Board also cited to: De La Rosa v. DHS, 489 F.3d 551, 553, 555 (2d Cir. 2007) [PDF version]; Arellano-Garcia v. Gonzales, 429 F.3d 1183, 1187 (8th Cir. 2005) [PDF version]