Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
In re Alonzo BRIONES, Respondent
File A75 907 909 – Dallas
Decided November 29, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Section 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(9)(C)(i)(I) (2000), covers recidivist immigration violators, so to be inadmissible
under that section, an alien must depart the United States after accruing an aggregate period
of “unlawful presence” of more than 1 year and thereafter reenter, or attempt to reenter, the
United States without being admitted.
(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is not
available to an alien who is inadmissible under section 212(a)(9)(C)(i)(I) of the Act.
FOR RESPONDENT: J. Joseph Reina, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ronald Lapid, Appellate
Counsel; Paul B. Hunker III, Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
The respondent appeals from an Immigration Judge’s March 31, 2005,
decision pretermitting his application for adjustment of status under section
245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000).1
The Department of Homeland Security (“DHS”) opposes the appeal. The
appeal will be dismissed.
The Immigration Judge’s original oral decision contains transcription errors that he
corrected, both by handwritten interlineation and by issuance of the March 31, 2005, written
decision from which the present appeal was taken. We conclude, and the parties do not
argue otherwise, that the Immigration Judge’s decision, as corrected, provides a meaningful
basis for appellate review.
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States without inspection in 1992. In March 1993, the respondent’s
father, who was then a lawful permanent resident of the United States, filed a
Petition for Alien Relative (Form I-130) on the respondent’s behalf, seeking to
classify him as a family-sponsored immigrant in the second-preference category,
i.e., as the unmarried son of a lawful permanent resident. See section 203(a)(2)
of the Act, 8 U.S.C. § 1153(a)(2) (1988). The former Immigration and
Naturalization Service (“INS”) approved the petition in January 1994, but no
visa number was then available to the respondent because his preference
category was oversubscribed.2
Nonetheless, the respondent remained in the
United States without permission until December 1998, when he departed to
Mexico.
On March 3, 1999, the respondent’s father became a naturalized citizen of
the United States. As a result, the respondent’s approved second-preference
visa petition was automatically converted to an approved first-preference
petition. 8 C.F.R. § 204.2(i)(3) (1999). On March 18, 1999, the respondent
reentered the United States without being admitted or paroled by an
immigration officer, and he has remained in the United States ever since. In
July 1999, the respondent filed an Application to Register Permanent
Residence or Adjust Status (Form I-485) with the DHS pursuant to section
245(i) of the Act on the basis of his approved visa petition.
In 2004, the DHS denied the respondent’s adjustment of status
application and initiated the present removal proceedings, in which the
respondent is charged with inadmissibility as an alien who reentered the
United States without admission after having previously been
unlawfully present in the United States for an aggregate period of
more than 1 year. See section 212(a)(9)(C)(i)(I) of the Act, 8 U.S.C.
§ 1182(a)(9)(C)(i)(I) (2000). The respondent denied the charge but also
sought to renew his application for adjustment of status, arguing that
inadmissibility under section 212(a)(9)(C)(i)(I) of the Act was no impediment
to section 245(i) adjustment, which is available by its terms to aliens who are
present in the United States after having entered without inspection. The
Immigration Judge pretermitted the application, however, concluding that the
respondent’s inadmissibility under section 212(a)(9)(C)(i)(I) of
2 On March 1, 2003, the functions of the former INS were transferred to the DHS pursuant
to Title IV of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135,
2177. To avoid confusion, the former INS shall be referred to in this order as the DHS
unless context dictates otherwise.
356 Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
the Act rendered him ineligible for adjustment of status.3 The respondent
appealed, and at our request the parties have filed supplemental briefs and
appeared for oral argument.
II. ISSUE
The principal issue on appeal is whether adjustment of status under section
245(i) of the Act is available to an alien who is inadmissible to the United States
under section 212(a)(9)(C)(i)(I) of the Act.
III. ANALYSIS
A. Inadmissibility Under Section 212(a)(9)(C)(i)(I) of the Act
The Immigration Judge determined that the respondent is inadmissible to the
United States under section 212(a)(9)(C)(i)(I) of the Act. In 2004, when the
DHS initiated these proceedings, the statute provided as follows, in pertinent
part:
§ 1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are inadmissible under
the following paragraphs are ineligible to receive visas and ineligible to be admitted
to the United States:
. . . .
(9) Aliens previously removed
. . . .
(C) Aliens unlawfully present after previous immigration violations
(i) In general
Any alien who—
(I) has been unlawfully present in the United States for an
aggregate period of more than 1 year, or
(II) has been ordered removed under section 1225(b)(1) of this
At the time of the Immigration Judge’s decision in March 2005, visa numbers were
available to first-preference family-sponsored immigrants from Mexico whose visa
petitions had been filed before October 22, 1994. See Bureau of Consular Affairs,
U.S. Dep’t of State, Visa Bulletin, Vol. VIII, No. 79 (Mar. 2005), available at
http://travel.state.gov/visa/frvi/bulletin/bulletin_2111.html. Because the respondent had a
current priority date when he submitted his adjustment application to the Immigration Judge,
he is not rendered ineligible for such relief by virtue of the subsequent retrogression of his
priority date, although final approval of the application would have to be held in abeyance.
See United States Citizenship and Immigration Services Operations Instructions 245.4(a)(6);
cf. also Matter of Ho, 15 I&N Dec. 692, 693-94 (BIA 1976).
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title, section 1229a of this title, or any other provision of law,
and who enters or attempts to reenter the United States without being
admitted is inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking admission more than
10 years after the date of the alien’s last departure from the United States
if, prior to the alien’s reembarkation at a place outside the United States
or attempt to be readmitted from a foreign contiguous territory, the
Attorney General has consented to the alien’s reapplying for admission.
Section 212(a)(9)(C) was enacted pursuant to section 301(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of
Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-577 (effective Apr. 1, 1997)
(“IIRIRA”). The purpose of the statute was to single out recidivist
immigration violators and make it more difficult for them to be admitted to the
United States after having departed. See generally Matter of Rodarte, 23 I&N
Dec. 905, 909 (BIA 2006); Matter of Torres-Garcia, 23 I&N Dec. 866, 868
(BIA 2006).
It is undisputed that the respondent was unlawfully present in the
United States for more than 1 year between April 1, 1997, the date when
section 212(a)(9)(C) of the Act went into effect, and December 1998 when he
returned to Mexico.4 It is also undisputed that he reentered the United States
in March 1999 without being inspected, admitted, or paroled. Because the
respondent entered the United States without admission or parole after a prior
period of unlawful presence in this country of more than 1 year, he is
inadmissible pursuant to the plain language of section 212(a)(9)(C)(i)(I).
Furthermore, he cannot presently be granted permission to reapply for
admission under section 212(a)(9)(C)(ii), either prospectively or retroactively,
because his last departure from the United States occurred less than 10 years
The respondent’s presence during this period was unlawful within the meaning of section
212(a)(9)(C) despite his status as a “grandfathered alien,” i.e., as the beneficiary of a visa
petition that was filed before April 30, 2001. See 8 C.F.R. § 1245.10(m) (2007) (“If the alien
is not in a period of stay authorized by the Attorney General, the fact that he or she is a
grandfathered alien does not prevent the alien from accruing unlawful presence under section
212(a)(9)(B) and (C) of the Act.”); see also Adjustment of Status to That of Person Admitted
for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 66 Fed.
Reg. 16,383, 16,386 (Mar. 26, 2001), 2001 WL 284947 (“The mere filing of a visa petition . . .
that has the effect of grandfathering the alien has no effect on an alien’s unlawful presence in
the United States . . . .”).
358
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ago. Matter of Torres-Garcia, supra, at 873-76.5 Having established that the
respondent is inadmissible and removable as charged, we now turn to the
question whether he is eligible for adjustment of status under section 245(i) of
the Act despite his inadmissibility.
B. Section 245(i) Adjustment
1. Background and Text of Section 245(i)
Congress has generally limited the availability of adjustment of status to
aliens who have been “inspected and admitted or paroled into the
United States.” Section 245(a) of the Act. The purpose of this “inspection and
admission” requirement is to discourage intending immigrants from moving
to the United States before becoming fully eligible for permanent residence
and to encourage them to follow the orderly consular process for the issuance
of immigrant visas. By the early 1990s, however, Congress had determined
that the inspection and admission requirement had become an undesirable
impediment to the acquisition of permanent resident status by many close
relatives of the more than 2.5 million aliens whose immigration status had been
“legalized” pursuant to section 201(a) of the Immigration Reform and Control
Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3394 (codified at section
245A of the Act, 8 U.S.C. § 1225a). Because of the inspection and admission
requirement, many close family members of these legalized aliens were
obliged to leave the United States so that they could apply for an immigrant
visa at a consulate or embassy abroad, placing a significant administrative
burden on the resources of the State Department and exposing the aliens
themselves to considerable personal expense. See Adjustment of Status to That
of Person Admitted for Permanent Residence; Temporary Removal of Certain
Restrictions of Eligibility, 59 Fed. Reg. 51,091, 51,092 (Oct. 7, 1994), 1994
WL 543334.
During the pendency of this appeal, Congress transferred authority to adjudicate waiver
applications under section 212(a)(9)(C)(ii) of the Act from the Attorney General to the
Secretary of Homeland Security. See Violence Against Women and Department of Justice
Reauthorization Act–Technical Corrections, Pub. L. No. 109-271, § 6(b),120 Stat. 750, 762
(2006). Consequently, even if the respondent’s last departure from the United States had
occurred more than 10 years ago, it is not clear that the Immigration Judge would have
jurisdiction to entertain his request for such a waiver.
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In 1994, Congress responded to this state of affairs by creating a new
section 245(i) of the Act, which authorized a limited departure from the
general “inspection and admission” requirement by permitting the Attorney
General to grant adjustment of status upon the payment of a surcharge to
certain aliens who had entered the United States without inspection or failed
to maintain lawful status after having been admitted as nonimmigrants. See
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1995, Pub. L. No. 103-317, § 506(b), 108 Stat.
1724, 1765-66 (effective Oct. 1, 1994) (“1995 Appropriations Act”); see also
H.R. Rep. No. 103-708, at 25, 83-84 (1994) (Conf. Rep.), 1994 WL 444749
(explaining the contours of section 506 of the 1995 Appropriations Act). To
encourage qualifying aliens to seek this new form of adjustment, moreover,
Congress erected barriers to consular processing by requiring most aliens who
had been physically present in the United States to remain abroad at their own
expense for at least 90 days before they could receive an immigrant visa. See
1995 Appropriations Act § 506(a), 108 Stat. at 1765 (enacting former section
212(o) of the Act, 8 U.S.C. § 1182(o), which would “sunset” on October 1,
1997).
As originally enacted, section 245(i) permitted an alien who had entered the
United States without inspection to apply for adjustment of status between
October 1, 1994, and October 1, 1997, at which time the provision would
“sunset.” See 1995 Appropriations Act § 506(c), 108 Stat. at 1766. Congress
subsequently repealed this October 1, 1997, sunset date, but substituted a new
requirement that any application for section 245(i) adjustment had to be based
on an approved visa petition that had been filed before January 14, 1998. See
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1998, Pub. L. No. 105-119, §111(a)-(b), 111 Stat.
2440, 2458 (enacted Nov. 26, 1997) (“1998 Appropriations Act”). This
January 14, 1998, deadline for the filing of qualifying visa petitions was later
extended to April 30, 2001. See LIFE Act Amendments of 2000, Div. B, tit.
XV, Pub. L. No. 106-554, § 1502(a)(1), 114 Stat. 2763 (enacted Dec. 21,
2000) (“LIFE Act Amendments”) (effective as if included in the enactment
of the Legal Immigration Family Equity Act, tit. XI, Pub. L. No. 106-553, 114
Stat. 2762 (2000) (“LIFE Act”)). In 2004, when these proceedings began, the
statute provided as follows, in pertinent part:
§ 1255. Adjustment of status of nonimmigrant to that of person admitted for
permanent residence
. . . .
(i) Adjustment of status of certain aliens physically present in United States
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an
alien physically present in the United States—
(A) who—
(i) entered the United States without inspection; . . .
360 Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
. . . ; and
(B) who is the beneficiary . . . of—
(i) a petition for classification . . . that was filed with the Attorney General on
or before April 30, 2001; . . .
. . . and
(C) who, in the case of a beneficiary of a petition for classification . . . that was
filed after January 14, 1998, is physically present in the United States on
December 21, 2000;
may apply to the Attorney General for the adjustment of his or her status to that of an
alien lawfully admitted for permanent residence. The Attorney General may accept
such application only if the alien remits with such application a sum equaling $1,000
as of the date of receipt of the application . . . .
(2) Upon receipt of such an application and the sum hereby required, the Attorney
General may adjust the status of the alien to that of an alien lawfully admitted for
permanent residence if—
(A) the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence; and
(B) an immigrant visa is immediately available to the alien at the time the
application is filed.
The reference to the Attorney General in section 245(i) now refers to the
Secretary of Homeland Security as well. See Homeland Security Act of 2002,
tit. XV, Pub. L. No. 107-296, § 1517, 116 Stat. 2135, 2311 (codified at
6 U.S.C. § 557 (Supp. IV 2004)).
2. Interplay Between Sections 245(i) and 212(a) of the Act
The fundamental issue before us is one of statutory construction,
pertaining to the interplay between sections 212(a)(9)(C) and 245(i) of the Act.
We review issues of pure statutory interpretation de novo. 8 C.F.R.
§ 1003.1(d)(3)(i) (2007). In conducting such a review, the touchstone of our
analysis is the plain language of the statute. Lamie v. U.S. Trustee, 540 U.S.
526, 534 (2004) (citing Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438
(1999)). It is presumed that Congress “‘says in a statute what it means and
means in a statute what it says there.’” Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (quoting Connecticut Nat’l
Bank v. Germain, 503 U.S. 249, 254 (1992)); see also Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Thus,
we do not look past the unambiguous meaning of statutory language except in
those rare circumstances where strict adherence to the text would lead to an
absurd or bizarre result that is “‘demonstrably at odds with the intentions of its
drafters.’” Demarest v. Manspeaker, 498 U.S. 184, 190-91 (1991) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see also
Johnson v. Sawyer, 120 F.3d 1307, 1319 (5th Cir. 1997).
361Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
With these principles of statutory construction in mind, we note as a
threshold matter that section 245(i)(2)(A) of the Act unambiguously requires
an applicant for adjustment of status to prove that he is “admissible to the
United States for permanent residence.” To satisfy this admissibility
requirement, which is echoed in many other provisions of the Act touching
upon adjustment of status, the applicant must prove either that he or she is “not
inadmissible” under any of the various paragraphs of section 212(a) of the Act,
or that any applicable ground of inadmissibility has been waived. 8 C.F.R.
§ 1245.10(b)(3) (2007). The Immigration Judge concluded that the respondent
could not satisfy the admissibility requirement because he is inadmissible
under section 212(a)(9)(C)(i)(I) of the Act and is ineligible for any waiver of
that ground of inadmissibility.6
The respondent counters the Immigration Judge’s decision by identifying
a contradiction in the language of section 245(i). Specifically, although the
respondent acknowledges the admissibility requirement of section
245(i)(2)(A), he points out that section 245(i)(1)(A) affirmatively grants “an
alien physically present in the United States . . . who . . . entered the
United States without inspection” the right to apply for adjustment of status.
As the respondent explains, aliens who have “entered the United States
without inspection” can almost never satisfy the admissibility requirement of
section 245(i)(2)(A) because their unlawful entry makes them inadmissible
under section 212(a)(6)(A)(i) of the Act (pertaining to aliens who are present
in the United States without having been admitted or paroled) or section
212(a)(9)(C)(i) of the Act, at issue in this case. In other words, the plain
language of the statute seems to make “entry without inspection” both a
qualifying and a disqualifying condition for adjustment of status.
The contradiction identified by the respondent certainly does exist, but it
has not always existed. In 1994, when section 245(i) was first enacted, “an
alien physically present in the United States who . . . entered the United States
without inspection” was not considered to be inadmissible (or “excludable,” to
use the parlance of the time) under section 212(a) of the Act. Instead, such an
alien was considered to be “deportable” under former section 241(a)(1)(B) of
The United States Court of Appeals for the Fifth Circuit, in whose jurisdiction this
proceeding arises, has extended administrative deference to an unpublished decision of this
Board that embodied much the same rationale as that announced by the Immigration Judge in
this case. Mortera-Cruz v. Gonzales, 409 F.3d 246, 254-56 (5th Cir.), cert. denied, 546 U.S.
1031 (2005).
362
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the Act, 8 U.S.C. § 1251(a)(1)(B) (1994), a classification that did not prevent
the alien from satisfying the “admissibility” requirement of section
245(i)(2)(A). Moreover, in 1994 the immigration law drew no formal
distinction between an alien who had “entered without inspection” once and
one who had done so repeatedly; both the first-time offender and the recidivist
would have been deportable under former section 241(a)(1)(B) only. The only
exception to this rule pertained to aliens who had reentered the United States
without inspection after having previously been deported. Depending on the
circumstances surrounding the original deportation or the amount of time that
had elapsed between the deportation and the reentry, such an alien would have
been inadmissible even in 1994. See former sections 212(a)(6)(A), (B) of the
Act, 8 U.S.C. §§ 1182(a)(6)(A), (B) (1994).
This legal landscape was fundamentally altered upon enactment of the
IIRIRA, which became effective for present purposes on April 1, 1997. See
IIRIRA § 309(a), 110 Stat. at 3009-625. Among many other things, the
IIRIRA did away with the “entered without inspection” deportability ground
and recharacterized aliens who had previously been “deportable” under that
ground as being “inadmissible.” Specifically, section 301(c) of the IIRIRA, 110
Stat. at 3009-578, created a general ground of inadmissibility applicable to all
aliens who are present in the United States without having been admitted or
paroled (i.e., the section 212(a)(6)(A)(i) ground), while section 301(b) of the
IIRIRA, 110 Stat. at 3009-575 to 3009-578, created the section 212(a)(9)
grounds of inadmissibility at issue in the present case, which apply more
narrowly to aliens who seek admission or evade inspection after having
committed prior immigration violations. It is these amendments that gave rise
to the present tension between sections 245(i)(1)(A) and (2)(A) of the Act.
Shortly before the IIRIRA went into effect, the General Counsel of the
former INS sought to forestall the potential consequences of this contradiction
by issuing a policy memorandum that expressed the view that section 245(i)
adjustment would remain available to the large class of aliens who were about
to become inadmissible under section 212(a)(6)(A)(i) of the Act. See
Memorandum from David Martin, INS General Counsel, to Michael L. Aytes,
Ass’t Comm’r, Office of Benefits (Feb. 19, 1997), reprinted in 74 Interpreter
Releases, No. 11, March 24, 1997, app. II at 516-22. According to this
memorandum, section 245(i)(1)(A), which made adjustment available to aliens
who had “entered without inspection,” falls within “the ambit of the ‘otherwise
provided’ savings clause of section 212(a) of the Act,” and essentially
constitutes an implicit waiver for aliens who are inadmissible under section
212(a)(6)(A)(i). Id. at 518-19. This “savings clause,” which is included in the
prefatory language of section 212(a) of the Act, states that “[e]xcept as
otherwise provided in this Act, aliens who are inadmissible under the following
363Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
paragraphs are ineligible to receive visas and ineligible to be admitted to the
United States.” Section 212(a) of the Act (emphasis added).
On appeal, the respondent relies on this same “savings clause” to argue that
inadmissibility under section 212(a)(9)(C)(i)(I) of the Act should not be an
obstacle to section 245(i) adjustment. According to the respondent, even if his
surreptitious reentry into the United States after a prior period of unlawful
presence of more than 1 year would ordinarily render him “ineligible to be
admitted to the United States” for permanent residence, section 245(i)(1)(A)
“otherwise provide[s]” within the meaning of the savings clause because it
makes adjustment of status available to aliens, such as himself, who have
“entered the United States without inspection.” Indeed, the respondent
contends that inadmissibility under section 212(a)(9)(C) arises from the precise
circumstance that section 245(i) was intended to forgive, that is, unlawful
presence in the United States. Thus, according to his argument, if aliens who
are inadmissible under section 212(a)(9)(C) were disqualified from adjustment,
section 245(i) would be rendered superfluous, because virtually all aliens who
have “entered the United States without inspection” have also accrued the
1 year of “unlawful presence” sufficient to make them inadmissible under
section 212(a)(9)(C)(i)(I).
Shortly after the IIRIRA went into effect, the former INS issued additional
policy guidance that espoused a position directly contrary to that presently
advanced by the respondent. See Memorandum from Louis D. Crocetti, Jr.,
INS Assoc. Comm’r, Office of Examinations, to INS Officials (May 1, 1997),
reprinted in 2 Bender’s Immigr. Bull. 450, 452 (June 1, 1997) (reiterating that
inadmissibility under section 212(a)(6)(A)(i) does not disqualify aliens from
seeking adjustment of status, but also providing that aliens subject to sections
212(a)(9)(B) and (C) of the Act “will be deemed inadmissible under that
section of the Act for purposes of adjustment of status”). This additional
memorandum contains no substantial analysis of the statutory language of
section 245(i), however, and several courts have therefore found it
unpersuasive when compared with the lengthier discussion set forth in the
February 1997 General Counsel’s Memorandum. Acosta v. Gonzales, 439
F.3d 550, 554 (9th Cir. 2006) (citing Perez-Gonzalez v. Ashcroft, 379 F.3d 783,
792-93 & n.8 (9th Cir. 2004)); Padilla-Caldera v. Gonzales, 426 F.3d 1294,
1300-01 (10th Cir.), amended and superseded on reh’g, 453 F.3d 1237, 1244
(10th Cir. 2005).
For a number of reasons, we find the respondent’s position with respect to
the “savings clause” to be untenable. Indeed, we disagree with the analysis
embodied in the former INS’ February 1997 Memorandum relating to the
364Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
interplay between section 245(i) and section 212(a)(6)(A)(i).7 In our view,
section 245(i) adjustment remains available to aliens inadmissible under
section 212(a)(6)(A)(i) only because a contrary interpretation would render the
language of section 245(i) so internally contradictory as to effectively vitiate
the statute, an absurd result that Congress is presumed not to have intended.
See Demarest v. Manspeaker, supra. However, the fact that a statute’s plain
language may lead to absurd results in some cases does not permit us to
disregard that language in other contexts where no such absurd consequence
would follow. And as we shall explain, applying the admissibility requirement
of section 245(i)(2)(A) to aliens who are inadmissible under section
212(a)(9)(C)(i)(I) does not have absurd consequences.
The so-called savings clause on which the respondent relies erects a default
presumption of inadmissibility for any alien described in the various
paragraphs of section 212(a), but it allows that presumption to be overcome
where the Act “provides” otherwise. In the context of statutory drafting, the
phrase “except as provided otherwise in this Act” most naturally denotes an
explicit proviso or stipulation that supplies a condition, exception, or limitation
on other statutory language. Yet the respondent has identified no actual
provision of “this Act” that can be construed as annulling or waiving the
admissibility requirement of section 245(i)(2)(A) as it relates to aliens
described in section 212(a)(9)(C). Instead, the respondent wants us to infer
that section 212(a)(9)(C) is inapplicable because, in his view, a contrary
interpretation would defeat the remedial purposes of section 245(i) adjustment.
We find no justification for drawing such an inference.
The respondent contends that the language of section 245(i)(1)(A) of the Act,
which makes adjustment of status available to aliens who have “entered the
United States without inspection,” would be rendered superfluous if such relief
were denied to the class of aliens described in section 212(a)(9)(C)(i)(I).
However, this argument proceeds from the mistaken premise that the classes
of aliens described in sections 245(i)(1)(A) and 212(a)(9)(C)(i)(I) are coextensive.
They are not. Section 212(a)(9)(C)(i)(I) does not apply to any alien who has
“entered the United States without inspection,” or even to any alien who has been
unlawfully present in the United States for more than 1 year. Instead, it applies
only to that subset of such aliens who are recidivists, that is, those who have
departed the United States after accruing an aggregate period of “unlawful
presence” of more than 1 year and who thereafter entered or attempted to reenter
7
DHS policy memoranda that have not been embodied in regulations are not binding on the
Immigration Judges or this Board, although the policies contained in such memoranda can
be adopted by the Board when appropriate. Matter of M/V Saru Meru, 20 I&N Dec. 592,
595-96 (BIA 1992) (citing Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980)).
365Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
the United States unlawfully. See Matter of Rodarte, supra, at 909 (explaining
that the various subparagraphs of section 212(a)(9) are concerned with punishing
and preventing recidivist immigration violations, and not mere unlawful
presence).
This interpretation of section 212(a)(9)(C)(i)(I) springs from the statutory
language taken in context and is amply supported by both the title of the statute
and its legislative history. Section 212(a)(9)(C) is entitled “Aliens unlawfully
present after previous immigration violations.” (Emphasis added.) This
language clearly reflects that Congress was concerned with recidivists,
not first-time immigration violators. INS v. Nat’l Center for Immigrants’
Rights, 502 U.S. 183, 189 (1991) (stating that “the title of a statute or section
can aid in resolving an ambiguity in the legislation’s text” and citing Mead
Corp. v. Tilley, 490 U.S. 714, 723 (1989), and FTC v. Mandel Bros., Inc.,
359 U.S. 385, 388-89 (1959)). Moreover, with respect to the language that
would subsequently be codified at section 212(a)(9)(C), the Conference
Committee Report issued at the time of the IIRIRA’s enactment provides as
follows:
[A]n alien who has been present unlawfully in the United States for more than 1 year
or has been ordered removed from the United States, and who subsequently enters or
attempts to enter the United States without being lawfully admitted, is permanently
barred from admission. Such an alien may be admitted not earlier than 10 years after
the alien’s last departure from the United States, but only if the Attorney General gives
prior consent to the alien’s reapplying for admission.
H.R. Rep. No. 104-828, at 208 (1996) (Conf. Rep.), 1996 WL 563320 (emphasis
added). It is the entry or attempted entry of an alien subsequent to his accrual of
more than 1 year of unlawful presence that triggers inadmissibility under section
212(a)(9)(C)(i)(I), and not mere unlawful presence for more than 1 year.
Hence, from the perspective of section 245(i), no easy correlation exists
between the section 212(a)(9)(C) inadmissibility grounds at issue here and the
section 212(a)(6)(A)(i) ground that was the subject of the February 1997
Memorandum of the former INS’ General Counsel. Although no alien who is
inadmissible under section 212(a)(6)(A)(i) alone would have been excludable
prior to the effective date of the IIRIRA, the same cannot be said for many
aliens who are currently inadmissible under section 212(a)(9)(C). Specifically,
prior to the IIRIRA many aliens who are presently inadmissible under section
212(a)(9)(C) by virtue of having reentered the United States after removal
would have been excludable under former section 212(a)(6)(B) of the Act and
therefore, by extension, ineligible for section 245(i) adjustment. Thus, were
we to declare the section 212(a)(9)(C) grounds of inadmissibility “waived” by
operation of the savings clause, we would in effect be making section 245(i)
adjustment available to a whole new class of aliens who had never been
366Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
eligible for it. We decline to take such an unwarranted leap. And while we
recognize that the respondent did not reenter the United States after a prior
removal, the fact is that Congress drafted section 301(b) of the IIRIRA, 110
Stat. at 3009-577, to define a unitary ground of inadmissibility that may be
predicated on various types of conduct. The provision draws no substantive
distinction between aliens who have reentered the United States illegally after
removal and those who, like the respondent, have done so after committing a
prior immigration violation for which they managed to avoid removal. The
provision makes both groups inadmissible permanently, and it precludes either
group from procuring permission to be readmitted for at least 10 years after
their last departure from the United States. Where Congress has not seen fit to
distinguish between these two groups for purposes of inadmissibility, we see
no justification for distinguishing between them as candidates for section
245(i) adjustment.
Furthermore, we deem it of crucial importance that in every other case where
Congress has extended eligibility for adjustment of status to inadmissible aliens
(in other words, where Congress has “otherwise provide[d]” within the meaning
of the savings clause) it has done so unambiguously, either by negating certain
grounds of inadmissibility outright or by providing for discretionary waivers of
inadmissibility, or both. See sections 209(c), 210(a)(1)(C), (c)(2)(A),
245(h)(2)(A), 245A(b)(1)(C)(i), (d)(2)(A) of the Act, 8 U.S.C. §§ 1159(c),
1160(a)(1)(C), (c)(2)(A), 1255(h)(2)(A), 1255a(b)(1)(C)(i), (d)(2)(A) (2000).
Indeed, even in those other instances where Congress has enacted special
remedial legislation extending adjustment of status to aliens who are unlawfully
present in the United States, it has seen the necessity of expressly negating the
applicability of section 212(a)(9)(C).
In 1997 and 1998, for instance, Congress made adjustment of status
available to certain Cuban, Central American, and Haitian aliens who were
physically present in the United States but not otherwise eligible to normalize
their status, usually because their presence in this country was unlawful. See
Nicaraguan Adjustment and Central American Relief Act, Pub. L. No.
105-100, § 202, 111 Stat. 2193, 2193 (1997) (“NACARA”); Haitian Refugee
Immigration Fairness Act of 1998, tit. IX, Pub. L. No. 105-277, § 902,
112 Stat. 2681-538, 2681-538 (“HRIFA”). As originally enacted, the
NACARA and HRIFA contained provisions expressly nullifying a number of
inadmissibility grounds related to unlawful presence and unlawful employment
because it was evident that such grounds would prevent most potential
applicants from proving that they were “otherwise admissible to the
United States for permanent residence.” NACARA § 202(a)(1)(B), 111 Stat.
at 2193; HRIFA § 902(a)(1)(B), 112 Stat. at 2681-538. Yet section
212(a)(9)(C) was not initially included among the waivable inadmissibility
grounds.
367Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
As the Government began to implement the NACARA and HRIFA
adjustment programs, however, it became clear that a number of potential
applicants were unable to qualify for relief, either because they were
inadmissible under section 212(a)(9)(C) or because they were subject to having
prior removal orders reinstated against them, or both. Congress addressed this
perceived problem in December 2000 by promulgating sections 1505(a) and
(b) of the LIFE Act Amendments, which provided the Attorney General with
discretionary authority to waive the section 212(a)(9)(C) grounds of
inadmissibility for NACARA and HRIFA adjustment applicants. NACARA
§ 202(a)(2), 111 Stat. at 2193-94; HRIFA § 902(a)(2), 112 Stat. at 2681-538;
see also 8 C.F.R. §§ 1245.13(c)(2), 1245.15(e)(3) (2007).
That Congress deemed it necessary to provide for such waivers in the
NACARA and HRIFA contexts is strong evidence that Congress understood
an alien’s inadmissibility under section 212(a)(9)(C) to be a barrier even to
those forms of adjustment that were reserved for aliens unlawfully present in
the United States. Furthermore, the enactment of section 1505 of the LIFE
Act Amendments demonstrates that when Congress wants to make adjustment
of status available to aliens despite their inadmissibility under section
212(a)(9)(C), it knows how to do so. Indeed, it is particularly significant that
Congress chose the LIFE Act Amendments as its vehicle for promulgating
these discretionary waivers of section 212(a)(9)(C). Section 1505 of those
amendments, discussed above, shows that Congress was attentive to the fact
that inadmissibility under section 212(a)(9)(C) was an impediment to
adjustment that needed to be overcome, if at all, by means of affirmative
legislation. Yet section 1502 of those very same amendments, which
materially modified section 245(i) by extending the filing deadline for
qualifying visa petitions, contains no comparable language removing section
212(a)(9)(C) as an obstacle to section 245(i) adjustment. See also H.R. Rep.
No. 106-1048, at 230 (2001), 2001 WL 67919; Berrum-Garcia v. Comfort, 390
F.3d 1158, 1167-68 (10th Cir. 2004). As the Supreme Court has explained,
“‘“[W]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.”’” INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (quoting
Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v.
Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). We see no reason why this
presumption should not apply here.
The respondent makes much of the fact that section 245(i)(1)(C) requires
that any principal beneficiary of a visa petition filed after January 14, 1998,
must prove that he was physically present in the United States on
368Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
December 21, 2000, in order to qualify for section 245(i) adjustment.8
According to the respondent, this presence requirement (which was added by
the LIFE Act Amendments), gives rise to a negative inference that Congress
intended to permit aliens whose visa petitions were filed on or before
January 14, 1998, to adjust status even if they had been outside
the United States on December 21, 2000. And therefore, the respondent
asserts, since any alien absent from the United States on December 21, 2000,
must necessarily reenter the country in order to adjust status under section
245(i), it follows that Congress must necessarily have intended to permit such
an alien to do so.
We acknowledge that this argument has some force, but in the final analysis
we remain unpersuaded. First, the legislative purpose of the December 21,
2000, physical presence requirement was not to draw distinctions between
existing beneficiaries of qualifying visa petitions, but to prevent aliens who had
never been beneficiaries of such petitions from viewing the renewed
availability of section 245(i) adjustment as an invitation to enter the United
States unlawfully. See 146 Cong. Rec. S11850, S11851-52 (daily ed. Dec. 15,
2000), 2000 WL 1847188 (Joint Memorandum Concerning the Legal
Immigration Family Equity Act of 2000 and the LIFE Act Amendments of
2000 submitted by Senators Kennedy and Abraham) (“The function of this
[physical presence] requirement is to make sure that the renewed availability
of section 245(i) does not operate to encourage anyone to violate our
immigration laws.”). We cannot reasonably interpret statutory language that
was expressly designed to prohibit one class of aliens from violating the
immigration law as somehow countenancing such violations by a different
class of aliens.
Moreover, any suggestion that Congress assumed section 245(i) adjustment
to apply to recidivist immigration violators is belied by its enactment of former
section 212(o) of the Act, which was created by means of the same 1994
legislation that created section 245(i). See 1995 Appropriations Act § 506(a),
108 Stat. at 1765. Former section 212(o) made most aliens who had been
physically present in the United States inadmissible for 90 days if they
departed, and it was aimed quite specifically at discouraging potential
beneficiaries of section 245(i) adjustment from leaving the United States.
Indeed, the whole purpose of section 245(i) adjustment was to keep families
together by permitting aliens then inside the United States to remain here,
rather than having to travel abroad to acquire immigrant visas. Thus, it would
Pursuant to section 111(a) of the 1998 Appropriations Act, 111 Stat. at 2458, section
245(i) adjustment was available to any alien whose qualifying visa petition had been filed
on or before January 14, 1998. The LIFE Act Amendments extended this deadline to
April 30, 2001.
369
8Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
be strange indeed to suppose that Congress would have been indifferent to
immigration violations undertaken in defiance of that purpose.
Furthermore, to the extent that the December 21, 2000, physical presence
requirement creates tension in the language of section 245(i), that tension does
not lead to any absurd contradiction that would allow us to discount the
ordinary meaning of the admissibility requirement. Specifically, although it
may be true that section 245(i) only makes sense if some aliens who were
outside the United States on December 21, 2000, are permitted to apply for
adjustment, it does not logically follow that such permission must be granted
to all aliens who were outside the United States on that date. After all, even
if the aliens described by section 212(a)(9)(C) are disqualified from section
245(i) adjustment, several other classes of aliens who were outside the
United States on December 21, 2000, can still qualify for such relief if they are
the beneficiaries of visa petitions filed before January 14, 1998. These classes
include aliens who entered the United States without admission after December
21, 2000, but who had no prior period of unlawful presence, as well as aliens
who entered the United States unlawfully on numerous occasions but who
never accrued the requisite prior period of unlawful presence, typically because
their last departure from the United States occurred less than 1 year after the
effective date of the IIRIRA. The point is that to give life to the December 21,
2000, physical presence requirement, one need not do violence to the plain
language of the admissibility requirement of section 245(i)(2)(A), e.g., by
simply declaring it inapplicable to the class of aliens described in section
212(a)(9)(C)(i)(I).
IV. CONCLUSION
In view of the fact that section 212(a)(9)(C)(i)(I) of the Act pertains only
to recidivist immigration violators, we find little merit in the respondent’s
argument–which seems to have been accepted by the Ninth and Tenth Circuits
in Acosta v. Gonzales, supra, and Padilla-Caldera v. Gonzales, supra,
respectively–that it would be incompatible with the remedial purpose of section
245(i) to make adjustment of status unavailable to such aliens. This emphasis
on the remedial purpose of section 245(i) unduly discounts both the clear
preclusive language of the admissibility requirement of section
245(i)(2)(A)–language which Congress has notably declined to mitigate despite
having done so in analogous contexts–and the countervailing purpose
underlying section 212(a)(9)(C), which is “to compound the adverse
consequences of immigration violations by making it more difficult
for individuals who have left the United States after committing such violations
to be lawfully readmitted thereafter.” Matter of Rodarte, supra, at 909.
Indeed, one of the chief purposes of the IIRIRA amendments of 1996 was to
370Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
overcome the problem of recidivist immigration violations by increasing
resources for border enforcement while escalating the punitive consequences,
both civil and criminal, of illegal reentry. See IIRIRA §§ 105(a)(2), 301(b)(1),
303(a), 305(a)(3), (b)(3), 324(a), 326, 332, 353(b), 110 Stat. at 3009-556,
3009-576, 3009-585, 3009-598, 3009-606, 3009-629, 3009-630, 3009-634,
3009-641; see also H.R. Rep. No. 104-828, at 199-200, 208, 216, 219, 225.
The enactment of these multifarious provisions to expedite the detection,
deterrence, and punishment of recidivist immigration violators reflects a clear
congressional judgment that such repeat offenses are a matter of special
concern and that recidivist immigration violators are more culpable, and less
deserving of leniency, than first-time offenders. Mortera-Cruz v. Gonzales,
409 F.3d 246, 255-56 (5th Cir.), cert. denied, 546 U.S. 1031 (2005). Thus,
although implementing the admissibility requirement of section 245(i)(2)(A)
of the Act in accordance with its plain language does have the effect of making
adjustment of status unavailable to those repeat immigration violators who are
inadmissible under section 212(a)(9)(C)(i)(I), we perceive nothing “bizarre”
or “absurd” in this result. On the contrary, such an outcome seems perfectly
consonant with the language, structure, and purpose of the Act, taken as a
whole. Accordingly, we hold that aliens who are inadmissible under section
212(a)(9)(C)(i)(I) of the Act cannot qualify for section 245(i) adjustment,
absent a waiver of inadmissibility.9
In conclusion, we find no reversible error in the Immigration Judge’s
determinations that the respondent is inadmissible to the United States under
section 212(a)(9)(C)(i)(I) of the Act and that his inadmissibility under that
section makes him ineligible for adjustment of status under section 245(i) of
the Act by precluding him from demonstrating that he is “admissible to the
United States for permanent residence.” Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart from the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by the
9 We need not decide here whether to apply our holding in the Ninth and Tenth Circuits. See
Nat’l Cable & Telecommc’n. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 982 (2005)
(holding that “[a] court’s prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if the prior court decision holds
that its construction follows from the unambiguous terms of the statute and thus leaves no
room for agency discretion”).
371 Cite as 24 I&N Dec. 355 (BIA 2007) Interim Decision #3590
Department of Homeland Security. See section 240B(b) of the Act, 8 U.S.C.
§ 1229c(b) (2000); 8 C.F.R. §§ 1240.26(c), (f) (2007). In the event the
respondent fails to so depart, the respondent shall be removed as provided in
the Immigration Judge’s order.
NOTICE: If the respondent fails to depart the United States within the
time period specified, or any extensions granted by the DHS, the respondent
shall be subject to a civil penalty of not less than $1,000 and not more than
$5,000, and shall be ineligible for a period of 10 years for any further relief
under section 240B and sections 240A, 245, 248, and 249 of the Act, 8 U.S.C.
§§ 1229b, 1255, 1258, and 1259 (2000). See section 240B(d) of the Act.
372