Introduction: Matter of L-T-P, 26 I&N Dec. 862 (BIA 2016)

On December 1, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of L-T-P, 26 I&N Dec. 862 (BIA 2016) [PDF version]. In this decision, the Board held that in order to procure adjustment of status under section 209 of the Immigration and Nationality Act (INA), an applicant must either have been admitted as a refugee or granted status as an asylee. The Board further held, consistent with regulations, that Cubans who were paroled into the United States under section 212(d)(5) of the INA between April 1, 1980, and May 18, 1980, are considered to have been admitted as refugees under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. However, the Board held that the respondent in the instant case, who was paroled into the United States on August 25, 1980, with a Form I-94, Arrival Departure Record that was stamped “Cuban/Haitian Entrant (Status Pending) that indicated the purpose of his parole was for “Cuban Asylum,” was not eligible for adjustment of status under section 209 because he had neither been admitted as a refugee nor granted asylum.

In this article, we will examine the facts and procedural history of the case, the Board’s reasoning and decision, and the effect of the decision going forward.

Factual and Procedural History: 26 I&N Dec. at 863

The respondent in the instant case, a native and citizen of Cuba, was paroled into the United States on August 25, 1980, as part of the Mariel Boatlift. Upon entry as a parolee, the respondent’s Form I-94, Arrival/Departure Record, was stamped “Cuban/Haitian Entrant (Status Pending).” Furthermore, the Form I-94 indicated specifically that the respondent was paroled under section 212(d)(5) of the INA for the purpose of seeking “Cuban Asylum.”

On August 19, 1986, the respondent was convicted of three counts of conspiracy to violate controlled substances laws in Maryland.

On May 11, 2010, the respondent applied for adjustment of status under section 245 of the INA, and under section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, 1161, as amended (“Cuban Adjustment Act”). Please see our article on the Cuban Adjustment Act to learn about how the Cuban Adjustment provisions work [see article].

On July 22, 2010, the United States Citizenship and Immigration Services (USCIS) denied the respondent’s application for adjustment of status on determining that his criminal convictions rendered him inadmissible under sections 212(a)(2)(A)(i)(II) and (a)(2)(C) of the INA, for which there is no available waiver of inadmissibility .

To learn more about these inadmissibility grounds, please see our articles on inadmissibility for controlled substance violations [see article] and for traffickers in controlled substances [see article] respectively.

On October 26, 2010, the Department of Homeland Security (DHS) issued to the respondent a notice to appear, thus initiating removal proceedings and charging the respondent as inadmissible under section 212(a)(2)(A)(i)(II) for his controlled substances convictions. In removal proceedings, the respondent applied for adjustment of status along with a waiver of inadmissibility under the asylee/refugee adjustment provision found in section 209(c) of the INA. The Immigration Judge (IJ) denied the application because the IJ found that the respondent had been paroled into the United States under section 212(d)(5) and had not been admitted as an asylee or refugee. The IJ also pretermitted (omitted without mention) the respondent’s application for asylum and the associated waiver.

The respondent appealed the finding that he was ineligible for adjustment of status and a waiver under section 209(c) because he had not been admitted as an asylee or refugee.

Issue Before the Board: 26 I&N Dec. at 864

The Board was tasked with determining whether the respondent was eligible for a waiver of inadmissibility under section 209(c). Section 209(c) allows for waivers of certain inadmissibility grounds for asylees and refugees who are seeking adjustment of status. Accordingly, the Board had to determine whether the respondent was an asylee or refugee “as a result of his parole into the United States.” If so, the respondent would be eligible for adjustment under section 209(a) or (b), and thus eligible for consideration for a waiver under section 209(c).

Analysis and Decision: 26 I&N Dec. at 864-71

Statutes: 26 I&N Dec. at 864

The Board began by explaining that section 209 of the INA provides for the adjustment of status of persons admitted as refugees (under section 207) or asylees (under section 208). Section 209 requires that the adjustment applicant be admissible to the United States. Section 209(c) provides the Attorney General with the discretionary authority to waive certain inadmissibility grounds for a refugee or asylee seeking adjustment of status. Notably, a refugee or asylee seeking adjustment may be eligible for consideration for certain waivers that would not be available to most applicants seeking adjustment under section 245.

In order for the respondent to be eligible for adjustment of status under section 209(a) or (b) and the associated waiver found in section 209(c), he would have had to have been admitted as a refugee under section 207 or granted status as an asylee under section 208. The provisions for refugee and asylee status both rely upon the definition of “refugee” found in section 101(a)(42)(A) of the INA. The difference in refugee and asylee status is found in how it is accorded. In order to be a “refugee” as defined in section 207, an individual must be admitted as such from outside the United States. Conversely, section 208 applies to individuals who apply for status — in this case asylum — while physically present in the United States.

History Pertaining to Cuban Refugees and Parolees in 1980: 26 I&N Dec. at 865-67

The history of Cuban migration presents interesting issues in the instant case. The Board examined these issues before assessing their applicability to the respondent. From 1959 to 1980, Cubans did not enter the United States as refugees but were instead paroled into the country. In 1966, Congress passed the Cuban Adjustment Act, exempting such Cubans from having to return home in order to apply for permanent residency. On March 17, 1980, Congress enacted section 201(b) of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 103 (“Refugee Act”). The Board explains that the Refugee Act designated a maximum number of refugees that could be admitted to the United States each year, along with procedures to increase the number if necessary.

The Board notes that the legislative history of the Refugee Act indicates that all “refugees” would be admitted as “refugees” rather than parolees. The Act maintained the Attorney General’s discretionary parole authority under section 212(d)(5). However, Congress added section 212(d)(5)(B), which states explicitly that the Attorney General may not parole an individual who is a “refugee” into the United States unless he or she determines that there are “compelling reasons in the public interest with respect to that particular alien” that he or she should be paroled rather than admitted as a refugee. The effective date for the section 207 refugee provisions was April 1, 1980. Section 212(d)(5)(B) took effect 60 days after the March 17, 1980, enactment of the Refugee Act. Both provisions took effect prior to the respondent’s being paroled into the United States.

The legislative history of the Refugee Act discussed that in early 1980 large numbers of Cubans who were considered to be refugees were entering the United States. On April 15, 1980, then-President Jimmy Carter signed an executive order “to invoke the emergency provisions of the Refugee Act to allow greater numbers of Cubans to be admitted as refugees” [45 FR 25789]. However, this approach was abandoned and on June 20, 1980, the Carter Administration took the position that subsequent Cuban entries were illegal entries. Instead of affording refugee status, the Carter Administration opted to exercise its parole authority for six months in order to parole such Cubans into the United States and in so doing created a temporary status called “Cuban/Haitian Entrant (Status Pending).” It was under these conditions that the respondent was paroled into the United States.

The then-Immigration and Naturalization Service (INS) granted “conditional entrant” status to a number of Cubans who were outside the United States before paroling them into the United States. This occurred after the Refugee Act took effect. The decision to “parole” such entrants was distinct from granting “admission” as a refugee. The INS promulgated regulations that stated that every individual processed abroad and paroled into the United States between April 1, 1980 and May 18, 1980, as a refugee “shall be considered as having entered the United States as a refugee under section 207(a)” of the INA. The Board explains that only these Cubans who were paroled into the United States as refugees between April 1 and May 18, 1980, were considered to have entered the United States as refugees under the terms of the Refugee Act. Cubans paroled into the United States beginning on June 20, 1980, were treated as parolees rather than refugees.

Respondent Not Refugee under Meaning of Section 207: 26 I&N Dec. at 868-70

The respondent argued that he was admitted into the United States as a refugee. The Board held in light of the historical context that the respondent had not been admitted as a refugee.

First, the Board noted that the respondent never filed a Form I-590, Registration for Classification as Refugee, abroad. Furthermore, the respondent never presented himself for inspection at a port of entry. Citing to 8 C.F.R. 207.1(a), 207.2, and 207.4 (2016), the Board held that the respondent had not applied for refugee status and then presented himself for inspection at a port of entry under “any orderly refugee procedure.”

The Board explains that the INS continued paroling refugees into the United States for several weeks after the Refugee Act took effect. All such persons processed abroad and then paroled into the United States between April 1, 1980, and May 18, 1980, are considered to have entered the United States as refugees under 8 C.F.R. 209.1(a)(2). The Board held that because the respondent was paroled into the United States on August 25, 1980, he did not enter the United States as a refugee.

The respondent acknowledged that his parole document stated that he was paroled under section 212(d)(5), which allows for the discretionary parole of an individual who would otherwise be inadmissible. However, the respondent argued that he was paroled as a refugee under section 212(d)(5)(B) for “compelling reasons in the public interest” because of concerns surrounding the Mariel Boatlift. Furthermore, the respondent noted that his Form I-94 was stamped “Cuban/Haitian Entrant (Status Pending),” and that it also indicated he was paroled for the purpose of “Cuban Asylum.”

The Board rejected the respondent’s argument that his Form I-94 demonstrated that he had been paroled into the United States as a refugee under section 212(d)(5)(B). The Board noted that section 212(d)(5)(B) prohibits parole for an individual as a refugee without compelling reasons “with respect to that particular alien.” Notwithstanding the language on the respondent’s Form I-94, the Board noted that he failed to provide evidence that the Attorney General had found, “with respect to [the respondent] specifically, that ‘compelling reasons in the public interest’” required that the respondent be paroled as a refugee under section 212(d)(5)(B) of the INA. Furthermore, the Board held that the respondent’s arrival in the Mariel Boatlift was not sufficient absent evidence establishing that he was identified as an alien to be paroled as a refugee for “such compelling reasons.”

The Board did acknowledge that the respondent was correct in arguing that Cubans who entered during the Mariel Boatlift were provided with a special immigration parole status under the Refugee Education Assistance Act of 1980, Pub. L. No. 96-422, sec. 501(e), 94 Stat. 1799, 1810 (“Refugee Education Assistance Act”). However, citing to Garcia-Mir v. Meese, 788 F.2d 1446, 1451 (11th Cir. 1986) [PDF version], which is binding in the instant case, the Board noted that although the statute provided a “special parole status,” it did not designate all of the entrants as refugees. The Board noted, as the respondent acknowledged, that the Refugee Education Assistance Act was intended to treat the Cuban and Haitian migrants as refugees for purposes of the refugee resettlement program and other Federal benefits and assistance. However, again citing to Garcia-Mir v. Meese, the Board noted that there is “no indication that the change was intended to modify the immigration laws.”

The Board also noted that in Garcia-Mir the Eleventh Circuit held that the Refugee Education Assistance Act served to treat Cubans from the Mariel Boatlift as refugees only “for the purpose of providing social welfare benefits.” The Eleventh Circuit held that it did not alter the immigration laws, and that the Cubans covered “were paroled under the general alien parole statute, and were treated no differently than any other aliens.” Accordingly, the Board held that the respondent’s status as Cuban/Haitian Entrant did not establish that he was a refugee under section 207.

Finally, the Board noted that in the USCIS Policy Manual, the USCIS itself takes the position that, while Cubans who arrived in the Mariel Boatlift shortly after the enactment of the Refugee Act “may have documentation that seems to indicate refugee status, they do not adjust status as refugees.” Instead, such individuals may apply for adjustment under the Cuban Adjustment Act. The Board explained that while it is not bound by the contents of the USCIS Policy Manual, it found “this provision to be further confirmation of our interpretation of the meaning of the term ‘Cuban Entrant.’”

For these reasons, the Board found that the respondent did acquire refugee status under section 207, and he was, therefore, ineligible for adjustment of status under section 209(a) and for the associated waiver of inadmissibility found in section 209(c).

Respondent Not an Asylee under Section 208: 26 I&N Dec. 870-71

The Board explained that as soon as the respondent entered the United States without refugee status, he was statutorily ineligible to seek such status. The respondent’s only recourse for seeking similar status would be as an asylee under section 208 as.

Citing to the Matter of Castellon, 17 I&N Dec. 616, 619 (BIA 1981) [PDF version], the Board noted that the respondent would be eligible to apply for asylum subsequent to his entry on parole. However, the Board held that the notation of “Cuban Entrant” on the respondent’s Form I-94 does not establish that the respondent was, in fact, an asylee.

The Board notes that in 1980, the respondent did in fact file an application for asylum, which was not granted.. Although the respondent again sought asylum in removal proceedings, the Immigration Judge pretermitted the application, and the respondent did not appeal from that determination. Accordingly, the Board found that there was no basis to consider the respondent an asylee under section 208 of the INA.

Decision: 26 I&N Dec. at 871

The Board held that, because the respondent was neither a refugee under section 207 nor an asylee under section 208, he was statutorily ineligible to adjust status under section 209(a) or (b). Because the respondent was ineligible for adjustment under section 209(a) or (b), he was also ineligible for a waiver of inadmissibility under section 209(c). For these reasons, the Board dismissed the respondent’s appeal.

Conclusion

The implementation of the Refugee Act in the midst of a refugee crisis from Cuba created a complicated situation for both the government and for Cubans entering during and after the Mariel Boatlift. As we see in the instant case, there are still immigration proceedings involving individuals from Cuba who were paroled into the United States in and around this period. The Board’s decision makes explicit that only those Cubans who were paroled into the United States between April 1, 1980, and May 18, 1980, can be considered to have been admitted as refugees. A Cuban who was paroled after that date would be required to establish that he or she had been paroled under section 212(d)(5)(B) in order to be considered to have entered as a refugee. Absent such evidence, a Cuban paroled after May 18, 1980, would only be able to seek adjustment of status under section 209 if he or she was granted status as an asylee. Otherwise, the Cuban would have had to seek adjustment under the provisions of the Cuban Adjustment Act or another applicable provision of the INA.

Cubans seeking immigration status or relief should always consult with an experienced immigration attorney for guidance on the application process and an individualized case evaluation. Such consultation is especially important when seeking asylum, relief from removal, or when there are especially complicated circumstances such as those discussed in this article.