Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
567
Matter of Felix ROTIMI, Respondent
File A73 561 893 – New York
Decided July 30, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien has not “lawfully resided” in the United States for purposes of qualifying for a
waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act,
8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for
asylum or for adjustment of status and lacked any other basis on which to claim lawful
residence.
FOR RESPONDENT: Daniel S. Shabasson, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Barbara Cigarroa, Assistant
Chief Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
This case was last before us on December 21, 2005, when we dismissed the
respondent’s appeal from the Immigration Judge’s February 1, 2005, decision
finding him statutorily ineligible for a waiver of inadmissibility under section
212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).
Defining the term “lawfully resided continuously” as residence during which
the alien has affirmatively been accorded the right or privilege of residing here
and abides by the rules associated with that right or privilege, we concluded
that the respondent failed to demonstrate that he acquired the requisite 7-year
period of continuous lawful residence for purposes of establishing eligibility
for a section 212(h) waiver.
Relying on that definition, we rejected the respondent’s assertion that
his consecutive periods of residence as a nonimmigrant, an asylum seeker, an
adjustment applicant, and a lawful permanent resident should all be
considered lawful in determining his eligibility for a waiver. Subsequently, the
United States Court of Appeals for the Second Circuit remanded the case to
“provide [the Board] with the opportunity to exercise its authority delegatedCite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
1 The asylum application was actually filed with the former Immigration and Naturalization
Service (“INS”). For ease of reference, we will refer to the former INS as the DHS.
568
by Congress and provide a precedential interpretation of the relevant statutory
provision pursuant to that authority.” Rotimi v. Gonzales, 473 F.3d 55, 58 (2d
Cir. 2007). The remand directs us to construe the phrase “lawfully resided
continuously” in section 212(h) of the Act and, in particular, the term “lawful”
as it is used in relation to asylum seekers and applicants for adjustment of
status. The remand also instructs us to explain the source of the definition we
adopt. See also Onwuamaegbu v. Gonzales, 470 F.3d 405 (1st Cir. 2006)
(remanding for the Board to explain its application of section 212(h) in a case
that seemingly raises questions as to the meaning of the phrase “lawfully
resided continuously”).
As explained below, we find the phrase “lawfully resided continuously” to
be ambiguous. Further, we find it unnecessary to adopt a comprehensive
definition of this statutory language in the context of this case. Instead, we
simply determine that the respondent did not “lawfully” reside in the
United States during those periods in which he was an applicant for asylum or
for adjustment of status and lacked any other basis for claiming lawful
residence.
I. FACTUAL AND PROCEDURAL HISTORY
The facts of this case are undisputed. The respondent was admitted to the
United States on June 7, 1995, as a B-2 nonimmigrant visitor with permission
to remain for 6 months. See section 101(a)(15)(B) of the Act, 8 U.S.C.
§ 1101(a)(15)(B) (1994) (requiring, in part, that the visitor have “a residence
in a foreign country which he has no intention of abandoning”). In September
1995, prior to the expiration of his nonimmigrant status, the respondent filed
an asylum application with the Department of Homeland Security (“DHS”).1
On May 17, 1996, the respondent’s asylum application was denied and the
DHS initiated deportation proceedings against the respondent.
During his deportation proceedings in July 1996, the respondent filed an
application for adjustment of status based on his marriage to a United States
citizen and a pending visa petition to classify him as an “immediate relative”
under section 201(b) of the Act, 8 U.S.C. § 1151(b) (1994). The visa petition
was approved on or about November 18, 1996, and on May 1, 1997, the
Immigration Judge terminated the respondent’s deportation proceedings to
allow him to pursue his application for adjustment of status directly with the
DHS. The respondent adjusted his status to that of a lawful permanent resident
on August 13, 1997.Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
2 In some unpublished decisions we have relied on the grammatical structure of section
212(h) to reject the DHS’s contention that an alien can only “lawfully” reside in this country
while in lawful permanent resident status. The placement of the phrase “since the date of
(continued…)
569
On May 22, 2002, the respondent was convicted of the offense of
attempted criminal possession of a forged instrument. In November 2002,
upon his return from foreign travel, he sought admission to this country as a
returning permanent resident. A Notice to Appear (Form I-862) filed with the
Immigration Court on June 13, 2003, charged the respondent with
inadmissibility under section 212(a)(2)(A)(i)(I) of the Act as an alien who has
committed a crime involving moral turpitude. During his hearing before the
Immigration Judge, the respondent admitted the truth of the factual allegations
and conceded that he is removable as charged. He then applied for a waiver
of inadmissibility under section 212(h) of the Act. Concluding that the
respondent had not acquired the requisite 7 years of continuous lawful
residence, the Immigration Judge found him statutorily ineligible for a waiver.
II. SECTION 212(h)
Section 212(h) of the Act permits the Attorney General, in his discretion, to
waive section 212(a)(2)(A)(i)(I), which provides that an alien convicted of a
crime involving moral turpitude is inadmissible. A lawful permanent resident
may properly be charged with inadmissibility under section 212(a)(2)(A)(i)(I)
of the Act but may, if statutorily eligible, seek a waiver of inadmissibility
under section 212(h). See section 101(a)(13) of the Act, 8 U.S.C.
§ 1101(a)(13) (2006); see also Matter of Collado, 21 I&N Dec. 1061, 1064
(BIA 1998). However, section 212(h) limits the eligibility of lawful
permanent residents for a waiver, providing, in pertinent part, as follows:
No waiver shall be granted under this subsection in the case of an alien who has
previously been admitted to the United States as an alien lawfully admitted for
permanent residence if either since the date of such admission the alien has been
convicted of an aggravated felony or the alien has not lawfully resided continuously
in the United States for a period of not less than 7 years immediately preceding the
date of initiation of proceedings to remove the alien from the United States.
We read the statute to permit a waiver for lawful permanent residents who:
(1) have not been convicted of an aggravated felony since the date of
admission as a permanent resident, see Matter of Yeung, 21 I&N Dec. 610
(BIA 1996, 1997); and (2) have lawfully resided continuously in this country
for 7 years immediately preceding the institution of proceedings, irrespective
of whether the period of lawful residence was as a permanent resident.2Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
(…continued)
such admission” permits lawful residence to be accrued outside of permanent resident status.
The phrase appears after the word “either” and before the word “or.” Standard English
grammar requires that “either . . . or” constructions contain parallel elements following the
coordinating conjunctions “either” and “or.” See Bryan A. Garner, A Dictionary of Modern
American Usage 240, 479-80 (1998); American Heritage Book of English Usage (1996),
available at http://www.bartleby.com/64/C002/004.html; Fowler’s Modern English Usage
147 (2d ed. 1965). In order for the phrase “since the date of such admission” to modify both
clauses following the word “either,” the phrase would need to appear before the word
“either,” e.g., “if since the date of such admission either the alien has been convicted of an
aggravated felony or the alien has not lawfully resided continuously in the United States for
a period of not less than 7 years.” In its current position after the word “either,” the phrase
“since the date of such admission” applies exclusively to the “convicted of an aggravated
felony” clause. Simply put, the rules of grammar provide that the second clause should not
be read to require 7 years of continuous residence as a lawful permanent resident.
3 For reasons based in meaningful part on “absurdity” concerns, we have construed an alien’s
adjustment to lawful permanent resident status as an “admission.” See Matter of Shanu,
23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Dep’t of Homeland Security, 450 F.3d 578
(4th Cir. 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). Because the parties have
not raised any challenge to this approach, we have no occasion to consider the impact on this
case of such decisions as Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (finding the
statutory language to be unambiguous in ruling that an alien who adjusted to permanent
resident status was not subject to the section 212(h) bar for conviction of an aggravated
felony after “admission” as a lawful permanent resident).
570
III. ISSUE
To be eligible for a section 212(h) waiver the respondent must demonstrate
that he has “lawfully resided continuously” in the United States for 7 years
before the initiation of removal proceedings. His removal proceedings began
at least as of June 13, 2003, when the Notice to Appear was filed with the
Immigration Court. He must therefore establish that he lawfully resided here
continuously since at least June 1996. The respondent became a lawful
permanent resident on August 13, 1997. However, his failure to accrue 7 years
of continuous residence as a lawful permanent resident is not decisive, but he
does need an additional 14 months of lawful residence. We must therefore
determine whether his 13 months as an applicant for adjustment of status and
his earlier (and overlapping) time as an applicant for asylum count toward
establishing that he has “lawfully resided continuously” for 7 years before his
removal proceedings were initiated.3Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
571
IV. ANALYSIS
We begin by examining the relevant language of section 212(h), which
provides that “[n]o waiver shall be granted . . . [to] an alien lawfully admitted
for permanent residence if . . . the alien has not lawfully resided continuously
in the United States” for the required 7-year period. (Emphasis added.)
Significantly, the precise phrase “lawfully resided” has not been employed
elsewhere in the Act, and we are unaware of its use in a comparable context.
Nor have we addressed the phrase in a precedent decision, although the Ninth
Circuit has spoken to the question. See Yepez-Razo v. Gonzales, 445 F.3d
1216 (9th Cir. 2006) (discussing the term “lawfully resided” in the context of
the Family Unity Program).
We find that the meaning of the phrase “lawfully resided” is not
self-evident, and we consider it to be ambiguous. See Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). The
ambiguity is reflected in the range of possible constructions it may be given.
For example, it could, as the respondent suggests, be interpreted to include
periods of residence during which an alien, despite having no lawful
immigration status, is not subject to removal as a matter of law and may obtain
employment authorization. It could also be construed, as we determined when
the case was last before us, as residence during which the alien has
affirmatively been accorded the right or privilege of residing here and abides
by the rules associated with that right or privilege. It could even be read to
require an entirely law-abiding life, beyond the context of the immigration
laws, during the 7-year period. However, Congress has used the phrase
“lawfully resided” in a technical immigration provision designed to waive
criminal grounds of inadmissibility set forth in the Immigration and
Nationality Act. As such, we believe that the meaning of the phrase needs to
be derived in the context of the immigration laws.
Under the current structure of our nation’s immigration laws and the
implementing regulations, there is a wide array of classifications into which
aliens might fall. Given the breadth of possible issues that might arise in any
particular alien’s situation, we find that it would be imprudent for us to attempt
a comprehensive ruling that would address and resolve the many cases that are
not now before us. Because such an expansive interpretation of the statutory
phrase is not necessary for the resolution of this case, we will simply explain
the reasons that lead us to conclude that the respondent’s 13 months as an
applicant for adjustment of status and his earlier (and overlapping) time as an
applicant for asylum do not count toward establishing that he has “lawfully
resided continuously” for the 7-year period required to establish his eligibility
for a section 212(h) waiver of inadmissibility.Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
4 We have further considered the possibility that the conference report could be construed
to refer to the conviction stop-time rule in section 240A(d)(1) of the Act, but for the reasons
above we do not believe that Congress intended the requirement for “lawful” residence to
refer simply to a law-abiding life. Instead, we find it unlikely that Congress, through the
conference report’s cryptic reference to section 240A, meant to incorporate all the provisions
relating to continuous residence contained in that section of the Act.
572
At the outset, we find that the phrase “lawfully resided” connotes more
than simple presence or residence. The overall statutory scheme for conferring
privileges on aliens reflects that lawful residence in this country is not
something that an alien can achieve through self-action alone. For example,
the status accorded to a nonimmigrant or lawful permanent resident is
conferred and sanctioned only after application and examination. The same
is true for asylee and refugee benefits. Further, as explained below, the basic
principles of immigration law lead us to construe the term “lawfully resided”
in a manner that is in accord with our previous interpretation of the word
“lawful” in the phrase “lawful unrelinquished domicile” in former section
212(c) of the Act, 8 U.S.C. § 1182(c) (1994).
But first we turn to the legislative history pertaining to the phrase “lawfully
resided,” which was added to section 212(h) of the Act by section 348 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-639 (“IIRIRA”).
That history, while not extensive, lends some support to the proposition that
an alien’s application for lawful status or other benefit that might not entail a
“status” must actually be approved before his or her residence in this country
will be considered lawful for section 212(h) purposes.
According to a conference report accompanying the IIRIRA, “The
managers intend that the provisions governing continuous residence set forth
in INA section 240A as enacted by this legislation shall be applied as well for
purposes of waivers under INA section 212(h).” H.R. Rep. 104-828, at 228
(1996) (Conf. Rep.), 1996 WL 563320. Section 240A(a)(2) of the Act,
8 U.S.C. § 1229b(a)(2) (2006), provides relief from removal to certain lawful
permanent residents with criminal convictions if they have “resided in the
United States continuously for 7 years after having been admitted in any
status.” (Emphasis added.) We consider the conference report’s reference to
section 240A to relate to an alien’s residence after admission in an
immigration status has been authorized.4
The requirement that an alien
“lawfully reside” as a prerequisite for relief under section 212(h) strongly
suggests the need for favorable action on a request to be in this country.
However, unlike section 240A, section 212(h) does not specifically require
the residence to be in a “status.”Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
573
We reject the respondent’s suggestion that the legislative history indicates
that the “residence” required under sections 212(h) and 240A(a) of the Act be
treated the same. Section 240A(a) requires only 7 years of continuous
residence after admission to the United States in any status, thereby including
aliens who have fallen out of status during the prescribed period. See Matter
of Blancas, 23 I&N Dec. 458 (2002). Section 212(h) could easily have been
written to require simple residence, lawful or not, following admission in some
status. But its language does not parallel section 240A(a) in this respect. We
are therefore unpersuaded that the conference report’s reference to section
240A overrides the differently worded language of section 212(h), which
requires 7 years of continuous lawful residence. Cf. Matter of Blancas, supra,
at 461 (declining to read section 240A(a)(2) to include maintenance of status
as a prerequisite for relief and finding that the legislative history’s reference
to section 212(c) does not clearly override the plain language of section
240A(a)(2), which allows 7 years of continuous residence after admission in
any status for purposes of cancellation of removal).
We also reject the respondent’s contention that any period of physical
presence in which an alien is not subject to being removed as a matter of law
should be deemed “lawful,”even if the alien has no specific permission to be
here beyond that which is afforded during the adjudication of a claim or a
removal case. As we understand it, the respondent’s argument would allow
lawful residence to arise from any legal impediment to removal. However,
simply acceding to the physical presence of an alien under such circumstances
does not render his or her residence “lawful” for section 212(h) purposes. If
that were the case, the vast majority of aliens in the United States who are
entitled to a removal hearing and the associated appeal rights could claim
lawful residence based on a combination of physical presence and some barrier
to removal. We are unpersuaded that the notion that an alien “lawfully”
resides in the United States within the meaning of the immigration laws should
hinge on the Government’s indulgence of his or her presence until the
completion of proceedings. Being an applicant for asylum or for adjustment
of status is not a defense to removal. It is only after the application is
approved that the alien has authorization to remain in this country beyond the
conclusion of the proceedings.
Moreover, an examination of section 212(h) as it applies to lawful
permanent residents within the statutory scheme supports requiring an
approved application, not merely an application pending review, for lawful
status or other benefit in order for residence in this country to be deemed
lawful. Section 101(a)(20) of the Act states that “[t]he term ‘lawfully admitted
for permanent residence’ means the status of having been lawfully accorded
the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed.”Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
574
(Emphasis added.) Thus, when it comes to lawful permanent residents, despite
an alien’s ultimate eligibility for such status, the language of the statute
indicates that actual approval, not simply the submission, of the application is
required before the alien can claim to have been accorded the privilege of
residing permanently in this country.
Although the word “lawful” is not defined in section 101 of the Act, it is
generally defined as “being in harmony with the law” or “constituted,
authorized, or established by the law.” Merriam-Webster’s Collegiate
Dictionary 658 (10th ed. 2002). Section 101(a)(33) of the Act defines
“residence” as “the place of general abode,” which is further defined as a
person’s “principal, actual dwelling place in fact, without regard to intent.”
For an alien’s residence to be treated as “lawful,” it must be authorized or in
harmony with the law, which requires some formal action beyond a mere
request for authorization or the existence of some impediment to actual
physical removal.
The respondent further contends that “lawfully resid[ing]” should be
considered the equivalent of being “not unlawfully present” for purposes of
inadmissibility under section 212(a)(9) of the Act. Section 212(a)(9)(B)(ii)
provides that “an alien is deemed to be unlawfully present in the United States
if the alien is present in the United States after the expiration of the period of
stay authorized by the Attorney General or is present in the United States
without being admitted or paroled.” Under section 212(a)(9)(B)(iii)(II), a
bona fide asylum applicant is exempt from the consequences of accruing
“unlawful presence.” But simply tolling or exempting an alien from added
sanctions for staying in this country without lawful authority does not
transform the alien’s presence while an applicant for benefits into lawful
residence itself. Congress carved out a special exception for the limited
purpose of section 212(a)(9) inadmissibility, without which an alien’s presence
as an applicant for asylum would be deemed unlawful after the expiration of
any authorized period of presence. Section 212(h) does not contain any
similar exception for asylum applicants, and the special exception confined to
section 212(a)(9) does not warrant a broader application to change the meaning
of “lawful” residence for section 212(h) waiver eligibility.
The lawfulness of an alien’s residence stems from the grant of a specific
privilege to stay in this country, not the mere fact that he or she is an applicant
for such a privilege. Cf. United States v. Ochoa-Colchado, 521 F.3d 1292
(10th Cir. 2008) (recognizing a distinction between an applicant for
adjustment and the grant of adjustment, in that the unlawful status of the
former is not relinquished until the latter occurs, and holding that the alien
was still unlawfully in the United States, despite his pending application
for adjustment of status, which operated to stay his removal during its
adjudication, and his receipt of an employment authorization document). ThisCite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
575
conclusion is consistent with our decision in Matter of Lok, 18 I&N Dec. 101
(BIA 1981), in which we construed the meaning of the term “lawful” in the
context of former section 212(c) of the Act, which required “lawful domicile.”
In Matter of Lok, supra, we concluded that for a domicile to be considered
“lawful,” the alien’s presence in this country
must be lawful within the meaning of this country’s immigration laws. The
Immigration and Nationality Act sanctions the continuing presence in this country of
but one class of aliens other than those lawfully admitted for permanent residence,
namely, nonimmigrants in compliance with the terms and conditions of their
admission.
An alien in breach of his nonimmigrant status . . . has no claim of right under the
Act to remain in this country. The fact that the Government refrains, in an individual
case or as a matter of general policy, from instituting deportation proceedings against
an alien or enforcing his deportation does not legalize the status of the beneficiary of
the Government’s forebearance. He remains in the United States at the sufferance of
the Government, not under any lawful status accorded him by the Act.
Matter of Lok, supra, at 108-09 (citations omitted).
Our view of lawfulness in the context of lawful domicile was endorsed by
the Second Circuit in Lok v. INS, 681 F.2d 107 (2d Cir. 1982), where the court
stated the following:
Lok established lawful domicile only when his intent to remain was legal under the
immigration laws. . . . As a seaman who had overstayed his 29 days, Lok was in the
United States illegally. He could not establish lawful domicile. Nor did his marriage
change his status. The INS halted deportation proceedings against Lok as a matter of
grace, not as a matter of law. The toleration of Lok’s presence clearly did not legalize
his intent to remain, which was still at odds with the statute, as Lok had to leave the
country before he could enter as a legal alien.
The requirement that Lok’s domicile be “lawful” is more than a formality; it is a
commandment installed in the 1952 Immigration and Naturalization Act . . . .
. . . .
. . . The possibility of [ ] discretionary relief led the INS and the Courts to tolerate
Lok’s presence; it did not legalize his intent to remain any more than the Service’s
policy against deporting Lok as the spouse of a citizen.
Lok v. INS, supra, at 109-11 (citations omitted).
Section 212(h) contains no domicile requirement, and the immigration laws
have evolved to recognize that nonimmigrants and lawful permanent residents
are not the only categories of aliens that are lawfully in the United States. For
example, aliens accorded refugee or asylee status are now considered to have
lawful presence. However, based on the long-standing construction of the
term “lawful” in the Lok decisions, we think that there is a distinction to be
drawn between permitting an alien’s presence in this country for a limited
purpose and legalizing his or her stay. It is this distinction that provides the
primary basis for our refusal to count the respondent’s time spent as anCite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
5 On appeal, the respondent asserts that the “rule of lenity” requires us to interpret the term
“lawfully resided” in such a way as to favor an alien in his position. We disagree. As
discussed above, we find that the meaning of the phrase at issue can be discerned, at least
sufficiently enough to resolve this case, by looking to normal precepts of immigration law.
See generally Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198-99 (2d Cir. 2007) (explaining that
the rule of lenity is one of last resort, and that it does not apply whenever there is an
ambiguity in an immigration statute).
6 The court observed that the term “lawfully resided” is “unclear” and that the Board had
declined to define it. The court likewise abstained from providing a definition, finding that
“[w]hatever the proper definition,” the alien in that case was “lawfully residing in the
United States for purposes of 212(h).” Yepez-Razo v. Gonzales, supra, at 1219.
Subsequently, and in the absence of a Board precedent on the issue, the Ninth Circuit treated
enrollment in the Family Unity Program as reflecting that the alien had been “admitted in
any status” so as to qualify for cancellation of removal. See Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1018-20 (9th Cir. 2006).
576
applicant for benefits as periods during which he “lawfully resided” here for
purposes of a section 212(h) waiver.
The Second Circuit has asked us to explain the source of the interpretation
we adopt. We rely on the same fundamental construction of the term “lawful”
that we applied in the past but update it in light of general changes that have
taken place over the years. As explained earlier, we also find support for our
view in the legislative history, which we read to suggest the need for a grant
of a status of some sort, and probably one that is consistent with lawfully
establishing a residence in the United States. Moreover, we rely on the
dictionary definition of the term “lawful” and the language of section
101(a)(20) of the Act, which mandates that the residence of lawful permanent
residents be “in accordance with the immigration laws.” To reside here
lawfully entails more than being an applicant for a benefit, even if the
opportunity for work authorization may arise from pursuit of the benefit. The
temporary reprieve from removal and possibility of work authorization that
can accompany applications for asylum and adjustment of status are simply
that—temporary reprieves and possibilities.5
The respondent urges us to follow the Ninth Circuit’s decision in
Yepez-Razo v. Gonzales, supra, where the court concluded that an eligible
beneficiary for Family Unity benefits was “lawfully” residing because the
statute creating the Family Unity Program provided that eligible beneficiaries
“‘may not be deported’” and “‘shall be granted authorization to engage in
employment.’”6
Id. at 1219 (quoting section 301(a) of the Immigration Act of
1990, Pub. L. No. 101-649, 104 Stat. 4978, 5029). Ordinarily, we would
expect the privilege of residing in this country to be reflected in a recognized
status such as that of nonimmigrant, refugee, or asylee, each of which is set out
in the statute. The unique nature of the Family Unity Program may qualify asCite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
7
To illustrate, under the regulations, an alien appealing to the Board from an initial order
of removal may not be removed while the appeal is pending. 8 C.F.R. § 1003.6(a) (2008).
In our judgment, it would be inconsistent with the overall scheme of section 212(h) to
consider such an alien to be lawfully residing here simply by virtue of the stay that
accompanies the appeal. Further, it is possible for work authorization to be granted in
limited circumstances to aliens in removal proceedings, such as asylum applicants whose
cases are not resolved in a reasonably prompt fashion, or certain aliens whose final removal
orders cannot be implemented. See, e.g.,section 208(d)(2) of the Act, 8 U.S.C. § 1158(d)(2)
(2006) (placing a general 180-day waiting period on employment authorization for asylum
applicants); section 241(a)(7) of the Act, 8 U.S.C. § 1231(a)(7) (2006) (limiting employment
authorization for aliens ordered removed); see also 8 C.F.R. § 1208.7(a)(1) (2008)
(indicating that the statutory work authorization waiting period for asylum applicants
includes those in removal proceedings before Immigration Judges); 8 C.F.R.
§§ 274a.12(c)(18), 274a.14(a) (2008).
577
well, given its statutory foundation in section 301 of the Immigration Act of
1990, and its expectation of long-term presence and ultimate regularization of
status. Notably, benefits under the Family Unity Program require the filing of
an application and a favorable decision on that application. See 8 C.F.R.
§ 236.14 (2008). The issue of lawful residence under the Family Unity
Program, however, is not currently before us, and we reject the respondent’s
reliance on Yepez-Razo v. Gonzales, supra, at least to the extent it finds that
“lawful” residence arises simply from the inability to deport an alien coupled
with the alien’s eligibility for work authorization.7
Importantly, we need now only resolve whether an applicant for privileges
or benefits is deemed to have “lawfully resided” here for purposes of section
212(h) prior to a favorable action on the application, when the applicant enjoys
no other status or privilege that prevents the initiation and completion of
removal proceedings. As indicated above, we resolve this question against the
respondent.
The respondent was admitted to the United States in June 1995 as a
nonimmigrant visitor for a period of 6 months. However, he did not abide by
the rules associated with that privilege, as he remained beyond his authorized
6-month period of stay. Consequently, any lawfulness associated with his
presence or residence ended when his nonimmigrant visa expired. The
respondent’s submission of asylum and adjustment applications did not change
the fact that his status as a nonimmigrant visitor had ended. Nor did filing
such applications give the respondent lawful residence here, as he was merely
an applicant for benefits with, at best, a temporary reprieve while his
applications were adjudicated. Specifically, the respondent was requestingCite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616
8 The timing of the respondent’s applications in relation to the initial deportation
proceedings parallels the facts in Matter of L-K-, 23 I&N Dec. 677 (BIA 2004), in which we
determined that the alien had failed to maintain lawful status and that the failure was not “for
technical reasons” within the contemplation of section 245(c)(2) of the Act, 8 U.S.C.
§ 1255(c)(2) (2000).
578
forms of relief that would allow him to remain in this country. Indeed, the
respondent was put into deportation proceedings during this very period of
time.8
We likewise reject the respondent’s assertion that his ability to obtain work
authorization during the pendency of his asylum and adjustment applications
demonstrates lawful residence. An alien who is merely provided employment
authorization, and who is allowed to remain here while awaiting a ruling on his
applications for relief, is not in the same position as an alien who has been
granted a valid immigration status or some other specific authorization to be
here, such as Family Unity benefits (regardless of whether it amounts to a
recognized “status”). See Matter of Lok, supra; see also United States
v. Ochoa-Colchado, supra. Thus, work authorization is not equivalent to a
lawful status; nor is it necessarily reflective of a right to lawfully be or remain
in this country. Rather, it can equally be an indication of other things, such as
an alien’s need for employment while applications for relief are pending. The
respondent was in an unlawful immigration status between the time his visitor
status had expired and the time he adjusted his status. He did not “lawfully
reside” here for section 212(h) purposes pending the DHS’s ruling on his
applications for relief.
V. CONCLUSION
Based on the above, we find that the respondent has not lawfully resided
continuously in this country for a period of not less than 7 years immediately
preceding the initiation of proceedings in June 2003. Therefore, we find that
the Immigration Judge correctly concluded that the respondent is statutorily
ineligible for a section 212(h) waiver. Accordingly, the respondent’s appeal
will be dismissed.
ORDER: The appeal is dismissed.