Cite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
761
Matter of D-K-, Respondent
Decided April 12, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who is a refugee under section 207 of the Immigration and Nationality Act,
8 U.S.C. § 1157 (2006), and has not adjusted status to that of a lawful permanent resident
may be placed in removal proceedings without a prior determination by the Department
of Homeland Security that the alien is inadmissible to the United States. Matter
of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), distinguished.
(2) When removal proceedings are initiated against an alien who has been “admitted” to the
United States as a refugee, the charges of removability must be under section 237 of the
Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act, 8 U.S.C. § 1182 (2006).
FOR RESPONDENT: Kara Hartzler, Esquire, Florence, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Victoria Levin, Assistant Chief
Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
PAULEY, Board Member:
The respondent, who is a refugee, has appealed from the June 2, 2011,
decision of the Immigration Judge finding him removable, denying his
applications for relief, and ordering him removed from the United States.
We hold that a refugee who has not adjusted status to that of a lawful
permanent resident may be placed in removal proceedings without a prior
determination by the Department of Homeland Security (“DHS”) that the alien
is inadmissible to the United States. However, we also determine that because
such an alien was “admitted” to the United States as a refugee, he or she must
be charged in the notice to appear under section 237 of the Immigration and
Nationality Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act,
8 U.S.C. § 1182 (2006). The appeal will be sustained in part and dismissed
in part, and the record will be remanded to the Immigration Judge for further
proceedings.Cite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Macedonia who entered the
United States as a refugee on March 16, 1998. The record reflects that
he applied for adjustment of status with the DHS in 2005 but that after his
interview, he failed to submit documentation requested regarding his criminal
history, so his application was denied on May 12, 2006. On June 22, 2009,
the respondent was convicted of distribution of cocaine within 1,000 feet
of a public secondary school in violation of 21 U.S.C. § 860 (2006), for which
he was sentenced to 24 months in prison.
On October 8, 2010, the DHS issued a notice to appear charging that the
respondent is an alien who has been admitted but is removable under section
237(a)(2)(A)(iii) of the Act based on his conviction for an aggravated
felony relating to the illicit trafficking of a controlled substance
under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2006).
However, on January 13, 2011, the DHS withdrew the charge and filed
a Form I-261 (Additional Charges of Inadmissibility/Deportability) with the
Immigration Court charging that the respondent is inadmissible under sections
212(a)(2)(A)(i)(I) and (II) of the Act as an alien convicted of a crime involving
moral turpitude and a controlled substance violation. The DHS filed a second
Form I-261 on May 3, 2011, charging the respondent under section
212(a)(2)(C) of the Act as an alien who the consular officer or Attorney
General knows or has reason to believe is a controlled substance trafficker.
The Immigration Judge sustained all three charges lodged under section
212 of the Act, found the respondent statutorily ineligible for both a waiver
under section 209(c) of the Act, 8 U.S.C. § 1159(c) (2006), and adjustment
of status, and denied his applications for asylum, withholding of removal, and
protection under the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the
United States Apr. 18, 1988) (“Convention Against Torture”).
On appeal, the respondent asserts that the Immigration Judge should have
terminated his removal proceedings. First, he argues that the Immigration
Judge did not have jurisdiction over these proceedings because in Matter
of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), we held that an alien who
is a refugee may not be placed in immigration proceedings until there is a prior
determination by the DHS that the alien is inadmissible to the United States for
purposes of adjustment of status. Second, he contends that since the notice
to appear alleges that he was “admitted” to the United States as a refugee,
he was improperly charged under the inadmissibility provisions of section
212 of the Act.Cite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
1 A “refugee” is defined under section 101(a)(42) of the Act, in part, as
any person who is outside any country of such person’s nationality . . . and who
is unable or unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.
763
II. ANALYSIS
Section 207(c)(1) of the Act, 8 U.S.C. § 1157(c)(1) (2006), states that the
Attorney General may admit any refugee who is not firmly resettled in any
foreign country, is determined to be of special humanitarian concern to the
United States, and is admissible as an immigrant. Refugee status may
be terminated under section 207(c)(4) of the Act if the Attorney General
determines that at the time of the alien’s admission he or she was not, in fact,
a “refugee” as defined by the Act.1
See 8 C.F.R. § 207.9 (2011).
Furthermore, under the adjustment of status procedures at section 209(a)(1)
of the Act, an alien whose refugee status has not been terminated and who has
been physically present in the United States for at least 1 year shall return
or be returned to the custody of the DHS for inspection and examination for
admission as an immigrant. See also 8 C.F.R. § 209.1(a)(1) (2011). If the
alien is found to be admissible, he or she shall be regarded as a lawful
permanent resident as of the date of his or her arrival in the United States.
Section 209(a)(2) of the Act. However, if the alien is found inadmissible,
he or she may renew the application for adjustment of status before
an Immigration Judge during removal proceedings under section 240 of the
Act, 8 U.S.C. § 1229a (2006). See 8 C.F.R. § 209.1(e).
In this case, neither party maintains on appeal that the respondent was not
a refugee under section 101(a)(42) of the Act at the time he was admitted
in 1998. Rather, the respondent relies on Matter of Garcia-Alzugaray to argue
that the DHS was required to make an inadmissibility determination before
placing him in removal proceedings. The respondent contends that although
the DHS denied his application for adjustment of status, the denial was based
on his failure to provide additional documentation, not his inadmissibility
to the United States.
A. Inadmissibility Determinations by the DHS
In Matter of Garcia-Alzugaray, we found that the alien’s exclusion
proceedings were improperly commenced because, prior to their initiation, the
former Immigration and Naturalization Service failed to terminate the alien’sCite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
2 Although the respondent cites to an unpublished Board decision in which we applied
Matter of Garcia-Alzugaray, that alien was in exclusion proceedings, and unpublished
decisions do not constitute binding precedent. See Matter of Echeverria, 25 I&N Dec. 512,
519 (BIA 2011); see also 8 C.F.R. § 1003.1(g) (2011) (“By majority vote of the permanent
Board members, selected decisions of the Board rendered by a three-member panel . . . may
be designated to serve as precedents in all proceedings involving the same issue or issues.”).
The respondent also cites Romanishyn v. Attorney General of the United States, 455 F.3d
175, 182 (3d Cir. 2006), in support of his argument that he is not subject to removal
proceedings. However, that case was issued by the United States Court of Appeals for the
Third Circuit, which does not have jurisdiction here, and it does not squarely address the
issue raised by the respondent, namely, whether a refugee may be placed in removal
proceedings without a prior finding of inadmissibility by the DHS.
764
refugee status or determine him to be inadmissible as an immigrant after
examination under oath by an immigration officer pursuant to the Act and the
regulations. In that case we addressed the original implementing regulations
for section 209(a) of the Act, which was enacted as part of the Refugee Act
of 1980, Pub. L. No. 96-212, 94 Stat. 102. At that time the regulations
provided that after 1 year, refugees were to appear before an immigration
officer for examination under oath to determine their eligibility for permanent
residence. 8 C.F.R. §§ 209.1(a)(1), (b) (1986). However, these regulations
have since been amended to streamline the adjustment process, making the
decision whether to interview a refugee seeking permanent resident status
a discretionary determination for the DHS. See 8 C.F.R. § 209.1(d) (1999);
see also Adjustment of Status of Refugees and Asylees; Processing
Under Direct Mail Program, 63 Fed. Reg. 30,105, 30,109 (June 3, 1998).
Consequently, we are not persuaded bythe respondent’s arguments that Matter
of Garcia-Alzugaray is determinative here.2
Furthermore, neither section 209 of the Act nor the regulations explicitly
state that termination of refugee status is necessary before an alien is placed
in removal proceedings under section 240 of the Act. In Matter of Smriko,
23 I&N Dec. 836, 837 (BIA 2005), we ruled that a refugee who had adjusted
status could be placed in removal proceedings even though his status
as a refugee was never terminated. Specifically, we found that 8 C.F.R.
§ 209.1(e) (2005) did not require termination of refugee status before the
commencement of removal proceedings under section 240 of the Act.
Id. at 839-40. Thus, interpreting the language of the Act and the regulations,
we concluded in Matter of Smriko that Congress did not consider termination
of refugee status to be a prerequisite to the initiation of removal proceedings
against refugees. 23 I&N Dec. at 838. Moreover, in Kaganovich v. Gonzales,
470 F.3d 894, 898 (9th Cir. 2006), the United States Court of Appeals for theCite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
3 The requirement that an alien be “admitted” to the United States in order to be subject
to the deportability grounds was added to the statute by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546 (“IIRIRA”), for proceedings commenced on or after April 1, 1997. Prior
to enactment of the IIRIRA, the deportation grounds, which then appeared at former section
241 of the Act, 8 U.S.C. § 1251 (1994), provided only for applicability to aliens “in” the
United States.
765
Ninth Circuit, which has jurisdiction over the respondent’s case, deferred
to our interpretation of the Act and regulations in Matter of Smriko.
On appeal, the respondent does not dispute that an alien who is a refugee
may be placed in removal proceedings without the prior termination of his
or her refugee status. Instead, he argues that because Smriko and Kaganovich
were refugees who had adjusted status, which he has not, their removal
proceedings were proper since the DHS had previously found them admissible
to the United States in granting them permanent resident status. However,
neither Smriko nor Kaganovich holds that an admissibility determination
by the DHS is a preliminary step to the initiation of removal proceedings.
Furthermore, we observed in Matter of Smriko that section 239 of the Act,
8 U.S.C. § 1229 (2000), which governs the commencement of removal
proceedings, refers to “the alien” and does not distinguish between aliens who
are refugees and other aliens. 23 I&N Dec. at 838.
Accordingly, we conclude that removal proceedings were properlyinitiated
against the respondent without a prior determination by the DHS that he was
inadmissible to the United States and that the Immigration Judge therefore had
jurisdiction to adjudicate these proceedings. The respondent’s appeal in this
regard will be dismissed.
B. Removal Charges Under Section 212 of the Act
Although it was appropriate for the DHS to initiate removal proceedings,
we agree with the respondent that he was improperly charged in the notice
to appear with inadmissibility under section 212 of the Act. We hold that
because the respondent was “admitted” to the United States as a refugee, any
charges should have been brought under the grounds of deportabilityin section
237.
Section 237(a) of the Act states that any alien in and “admitted” to the
United States shall be removed if the alien falls within one or more specific
enumerated classes of deportable aliens.3 Under section 101(a)(13)(A), the
terms “admission” and “admitted” are defined as “the lawful entry of the alien
into the United States after inspection and authorization by an immigration
officer.” The burden is on the DHS to show by clear and convincing evidenceCite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
766
that an alien who has been admitted to the United States is deportable. Section
240(c)(3)(A) of the Act.
With regard to refugees, the language of both the Act and the regulations
states that they are “admitted” to the United States. Section 207(a) of the Act
addresses the annual “admission” of refugees into the United States. Section
207(c)(1) indicates that the Attorney General may “admit” refugees to the
United States in his discretion, and section 207(c)(3) provides for a waiver
of inadmissibility for aliens seeking “admission” to the United States
as refugees. Moreover, section 212(d)(5)(A) of the Act discusses parole
of aliens into the United States and states that it “shall not be regarded
as an admission,” and section 212(d)(5)(B) provides that an alien who
is a refugee may not be paroled unless there are compelling reasons in the
public interest requiring that he or she be paroled, rather than “admitted”
as a refugee under section 207 of the Act.
Under the regulations, an alien who believes he or she is a refugee may
apply for “admission” to the United States by filing a Form I-590 (Registration
for Classification as Refugee) with the DHS or consular office in the area
where he or she is located. See 8 C.F.R. §§ 207.1(a), 207.2(a) (2011). The
overseas office is then delegated authority to determine the alien’s
admissibility as an immigrant. See 8 C.F.R. § 207.3 (2011). Although
an initial admissibility determination may be more lenient for refugees than
it is for other aliens because some of the inadmissibility provisions are not
applicable to refugees and others may be waived under section 207(c)(3), the
Act and the regulations still contemplate that refugees are “admitted” to the
United States, albeit in the Attorney General’s discretion. Thereafter,
an approved Form I-590 allows the alien to be “admitted” conditionally
as a refugee at a port of entry in the United States within 4 months of the date
the form is approved. See 8 C.F.R. § 207.4 (2011). Finally, an alien who
is “admitted” as a refugee must accrue 1 year of physical presence within the
United States from the date he or she entered before applying for adjustment
of status under section 209(a)(1) of the Act. See 8 C.F.R. § 207.8 (2011).
Prior to 1997, the regulations stated that upon termination of an alien’s
refugee status or a determination that he or she is inadmissible, the alien was
subject to exclusion proceedings under former sections 235, 236, and 237
of the Act, 8 U.S.C. §§ 1225, 1226, and 1227 (1994). See 8 C.F.R. §§ 207.8,
209.1(a) (1997); see also Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10,312, 10,337, 10,346 (Mar. 6, 1997). However,
in their current form, the regulations provide that upon termination of refugee
status, the alien is to be placed in removal proceedings under section
240 of the Act, without regard to whether the alien should be charged under
section 212 or section 237 of the Act. See 8 C.F.R. §§ 207.9, 209.1(e).Cite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
4 As the Attorney General’s opinion observed, Jean did not contest her inadmissibility
as charged under section 212(a)(2)(A)(i)(I) of the Act, as an alien convicted of a crime
involving moral turpitude. See Matter of Jean, 23 I&N Dec. at 375-76. Thus, there was
no occasion in Jean’s case to consider the question whether the charge against her was
properly brought under the inadmissibility rather than the deportability provisions of the
Act.
767
In Matter of Jean, 23 I&N Dec. 373, 374 n.4 (A.G. 2002), the
Attorney General stated in a footnote that the alien, who was a refugee, was
not paroled or permanently admitted into the United States and that she was
conditionally admitted as a refugee, thereby deferring her admissibility
inspection and examination by Federal immigration officials. See 8 C.F.R.
§ 207.4. As support for this footnote, the Attorney General cited Matter
of Garcia-Alzugaray, 19 I&N Dec. at 408-10. There, we had noted that under
prior versions of the Act, refugees had “conditional entrant” status but that
in enacting the Refugee Act of 1980, Congress replaced this with refugee
status, thus allowing refugees conditional admission for later adjustment
to permanent residence, and it specifically rejected prior proposed Senate
language that would have admitted refugees as lawful permanent residents
upon entry. Id. at 408. As a result, while Jean’s inspection and examination
for lawful permanent resident status may have been deferred for 1 year,
we do not read the Attorney General’s footnote or Matter of Garcia-Alzugaray
as a pronouncement that inspection and authorization by an immigration
officer did not precede the respondent’s initial admission as a refugee under
section 207(c)(1) of the Act.4
We acknowledge the conditional nature of a refugee’s status. However,
the fact that a refugee admission is impermanent and subject to contingencies
does not resolve the question whether it nevertheless qualifies as a kind
of “admission” for purposes of the applicability of the deportability grounds
at section 237(a) of the Act. That question was not resolved in either Matter
of Jean—in which the applicability of the inadmissibility grounds was not
contested, see supra note 4—or Matter of Garcia-Alzugaray—which applied
previous statutory and regulatory provisions that did not yet focus on the
concept of “admission” and that (in the case of the regulations) expressly
provided that aliens whose refugee status had been terminated were subject
to exclusion proceedings.
We also recognize that the concept of a “conditional admission” is not
without ambiguity. The proposition that such a status does not qualify
as a “true” admission, which can require the bringing of charges
on deportabilityrather than inadmissibilitygrounds, has some persuasive force.
But if a refugee has not been “admitted,” and also has not been paroled in viewCite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
5
Indeed, we reaffirmed that the statutory scheme warranted treatment of an adjustment
of status as an admission, even though an adjustment does not come within the literal
definition of the term “admission” at section 101(a)(13)(A) of the Act. See Matter
of Alyazji, 25 I&N Dec. at 399-404. In this case, the justification for treating a conditional
refugee admission as an “admission” is even stronger because such an admission comes
within the statutory definition’s reference to a lawful entry into the United States after
inspection and authorization by an immigration officer, as discussed above.
768
of the restrictive language at section 212(d)(5) of the Act as discussed above,
then the nature of his or her status becomes unclear. Section 212(a)(6)(A)(i)
of the Act, as amended by the IIRIRA, provides that aliens who are present
in the United States without having been either admitted or paroled are
inadmissible, thereby presumably possessing no legal status. That provision
does not appear to contemplate a third possible category, consisting of aliens
who, despite having been neither admitted nor paroled, are authorized
to be present in the United States as refugees. And if this conundrum
is to be resolved by construing the word “admitted” in section 212(a)(6)(A)(i)
to encompass conditional refugee admissions, then it is difficult to fathom why
the same construction would not be afforded to the same word as used in the
language describing the applicability of the deportability provisions at section
237(a). “As a rule, a single statutory term should be interpreted consistently.”
Matter of Alyazji, 25 I&N Dec. 397, 404 (BIA 2011) (citing Clark v. Martinez,
543 U.S. 371, 382 (2005)). To the extent that the pertinent language
is ambiguous, we believe that a construction recognizing that a “conditional
admission” is nevertheless a form of “admission” for purposes of section
237(a) of the Act would best comport with the overall structure of the statute.
To be sure, our construction effectively envisions that a refugee who
ultimately becomes a lawful permanent resident will have been “admitted”
twice—first, upon conditional admission under section 207 of the Act, and
second, upon reinspection and adjustment to permanent resident status under
section 209(a) of the Act—and that after each of those admissions, he or she
will have been subject to charges under only the deportability grounds, and not
the grounds of inadmissibility. But this notion of multiple admissions, with the
deportability grounds applying after each admission, is consistent with the
approach we have taken in other immigration contexts.
In Matter of Alyazji, we reaffirmed our prior case law to the extent it held
that aliens who enter the United States as nonimmigrants and then adjust their
status to that of a lawful permanent resident have two admissions—first at the
border on their nonimmigrant visas, and then again during the adjustment
process.5 Similarly, in Matter of Sesay, 25 I&N Dec. 431 (BIA 2011),
we addressed the situation of an alien who is admitted as a fiancé(e)
of a United States citizen under section 101(a)(15)(K) of the Act and thenCite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
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(after marriage to the citizen) adjusts status to that of a lawful permanent
resident on a conditional basis under section 216 of the Act, 8 U.S.C. § 1186a
(2006). In each of these contexts, we treated the alien, at least implicitly,
as being subject to the deportation grounds after the first admission, as well
as the second (if it occurs at all). See Matter of Sesay, 25 I&N Dec. at 432
(noting that an alien who had been admitted as a fiancé visa holder, but who
subsequently had been denied adjustment of status, was charged with
deportability under section 237(a)(1)(B) of the Act); Matter of Alyazji, 25 I&N
Dec. at 406-07 (stating that a second admission through adjustment of status
“merely extends an existing period of presence that was sufficient in and
of itself to support the alien’s susceptibility to the grounds of deportability.”).
Furthermore, we agree with the respondent that despite the DHS’s
assertions to the Immigration Judge,Kaganovich v. Gonzales does not give the
DHS authority to charge him under section 212 of the Act. In that case,
Kaganovich, a refugee who had obtained permanent resident status, was
stopped at a port of entry as he tried to drive from Mexico back into the
United States with another alien who presented false documentation.
Kaganovich v. Gonzales, 470 F.3d at 896. Thereafter, Kaganovich was placed
in removal proceedings and was charged with alien smuggling under section
212(a)(6)(E)(i) of the Act. See section 101(a)(13)(C) of the Act. Here, the
respondent was not outside the United States attempting to reenter.
Thus, we conclude that under the language of the Act and regulations,
and also in view of the context and structure of the provisions at issue, an alien
admitted to the United States as a refugee has been “admitted” for
purposes of section 101(a)(13)(A) of the Act. Specifically, the alien has
made a lawful entry into the United States after inspection and authorization
by an immigration officer. Although after 1 year the alien must be reinspected
for admission in a different status, that of a lawful permanent resident, this
requirement does not undermine his or her initial admission as a refugee under
section 207 of the Act. Consequently, the respondent is present in the
United States pursuant to a prior admission as a refugee, and any charges in the
notice to appear must be based on the grounds of deportability under section
237 of the Act.
Initially, the notice to appear charged that the respondent was “admitted”
but removable under section 237(a)(2)(A)(iii) of the Act. However, the DHS
subsequently withdrew that charge and filed two Forms I-261 lodging charges
of inadmissibility under section 212. The Immigration Judge made alternative
findings, concluding not only that the respondent was inadmissible as charged,
but also that he was deportable under section 237 of the Act because
his conviction was categorically for an aggravated felony under section
101(a)(43)(B). However, since the respondent was not properlycharged under
section 237 at the time of the Immigration Judge’s decision, the alternativeCite as 25 I&N Dec. 761 (BIA 2012) Interim Decision #3747
770
analysis under that section was hypothetical in nature. Therefore, upon our
de novo review, we conclude that the Immigration Judge’s removability
determinations were improper, and we will sustain the respondent’s appeal
in this regard. See 8 C.F.R. § 1003.1(d)(3)(ii) (2011).
Furthermore, we recognize the Immigration Judge’s extensive analysis
regarding the respondent’s eligibility for relief from removal. However, the
respondent has not been properly charged, and his removability is a threshold
determination. As a result, we find that a remand is warranted for the DHS
to have an opportunity to amend the notice to appear and for the Immigration
Judge to further address the issues of the respondent’s removability and his
eligibility for relief. Accordingly, the respondent’s appeal will be sustained
in part and dismissed in part, and the record will be remanded for further
proceedings.
ORDER: The appeal is sustained in part and dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.