U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

Lisa Seifert Seifert Law Offices 112 E. Fourth Ave., 200A Olympia, WA 98501

OHS/ICE Office of Chief Counsel - SEA 1000 Second Avenue, Suite 2900 Seattle, WA 98104

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Name: DAMOUNI, SUNIPHA

A 029-235-328

Date of this notice: 1/10/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger Greer, Anne J. Cole, Patricia A.

lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

U.S. Department

of Justice

Decision of the Board of Imm igration Appeals

Executive Office for Imm igration Review Falls Church, Virginia 22041

File: In re:

A029 235 328 - Seattle, WA

Date:

JAN 10 2013

SUNIPHA DAMOUNI a.k.a. Sunipha Gluaymai Na Ayudhaya

IN REMOVAL PROCEEDINGS APPEAL

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ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Lisa Seifert, Esquire

Hana A. Sato Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)( l)(A), l&N Act [8 U.S.C. 1227(a)(l )(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(6)(C)(i), l&N Act [8 U.S.C. l 182(a)(6)(C)(i)] Fraud or willful misrepresentation of a material fact APPLICATION: Waiver under section 237(a)(l )(H)

In a decision dated November 30, 2009, an Immigration Judge denied the respondent's request for a waiver of removal under section 237(a)(l )(H) of the Immigration and Nationality Act (Act), 8 U.S.C. 1227(a)(l )(H). The respondent has appealed from that decision. Her request for oral argument is denied.

See 8 C.F.R. 1003.l(e)(7) (20 12). Her appeal will be sustained.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Thailand who was previously admitted to the United States as a nonimmigrant on or about January 22, 1 986, married a United States Citizen in July 1988, and adjusted her status to that ofa lawful permanent resident based on that marriage on November 17, 1 988 (I.J. at 1; Tr. at 3-4; Exhs. 1, 3B). In June 2008, the Department ofHomeland Security (DHS) filed a Notice to Appear (NTA) with the Immigration Court, charging the respondent with removability under section237(a)(l )(A) ofthe Act, as an alien who at the time of her entry or adjustment of status was inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 1l82(a)(6)(C)(i), for engaging in fraud or willful misrepresentation of a material fact in the procuring a visa, other documentation, or admission into the United States or other benefit under the Act (I.J. at 1-2; Exh. I). Specifically, the DHS alleged thatat the time of the respondent's marriage in July 1988, she was already married to another, was not divorced or widowed, and adjusted her status based on a bigamous marriage, such that she

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

{,'

A029 235 328

entered her second marriage fraudulently and solely for the purpose ofobtaining lawful immigration status (I.J. at 1, 7; Tr. at 44-50; Exhs. 1, 3A). The respondent admitted the allegations in the NTA, conceded her removability as charged, and sought a waiver under section 237(a)(J)(H) of the Act (I.J. at 2; Tr. at 3-5). The Immigration Judge found that the respondent ( 1) was not statutorily eligible for the waiver and (2) had not demonstrated that she merited the waiver in the exercise of discretion (I.J. at 3-8). II. ISSUE

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The issue in this case is whether a section 237(a)( l )(H) waiver is available to aliens who adjust their status within the United States. Here, the respondent seeks to waive the fraud she committed at the time ofher adjustment of status to that ofa lawful permanent resident, fraud that occurred after her initial entry into the United States as a nonimmigrant. In this decision we will examine the scope of the 237(a)(l )(H) fraud waiver in light of the 1996 amendments to the Act in determining whether the phrase "at the time of admission" as used at section 237(a)(l )(H) of the Act includes fraud or misrepresentation at the time of an alien's adjustment of status. We conclude that an alien's adjustment of status within the United States can constitute an admission for purposes of a waiver under section 237(a)(l )(H) of the Act. Therefore, an alien may be granted this waiver for fraud or misrepresentation committed at the time of her adjustment of status.
III. STANDARD OF REVIEW

We review an Immigration Judge's findings of fact for clear error. 8 C.F.R. 1003.l (d)(3)(i). We review questions of law, discretion, or judgment, and all other issues 1003. 1(d)(3)(ii).
IV. THE IMMIGRATION JUDGE'S DECISION AND THE PARTIES' POSITIONS

de nova. 8 C.F.R.

The Immigration Judge found that the respondent was not statutorily eligible for a waiver under section 237(a)(l )(H) of the Act because prior, comparable waivers under former sections 24l(a)(l )(H) ( 1990) and24l(f) ofthe Act ( l 961), 8 U.S.C. 125l(a)(l )(H), (f), were only available for fraud or misrepresentation at the time of an alien's "entry" into the United States (I.J. at 3).

Matter of Connelly, 19 I&N Dec. 156, 159 (BIA 1984), citing Khacijenouri v. INS, 460 F.2d 461
(9th Cir. 1972). In Matter of Connelly, supra, this Board held that a fraud waiver pursuant to section 24l(f) of the Act only waives excludability grounds that existed at the time of an alien's entry into the United States and, because an alien's adjustment of status under section 245 of the Act was not an entry into the United States, fraud or misrepresentation committed at the time of adjustment of status was not within the scope of the waiver. The Immigration Judge also found

Shivaraman v. Ashcroft, 360 F.3d 1 142 (9th Cir. 2004), to be persuasive (I.J. at 4). In that case, the United States

Court ofAppeals for the Ninth Circuit, which has jurisdiction here, addressed section 237(a)(2)(A)(i) ofthe Act to determine whether an alien was removable as one convicted ofa crime involving moral turpitude (CIMT) committed within 5 years "after the date ofadmission." Similar to this respondent, Shivaraman entered the United States as a nonimmigrant and adjusted status 7 years later (I.J. at 7). 2

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

"

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A029 235 328

The Ninth Circuit ruled in Shivaraman' s case that the relevant date of admission to the United States was Shivaraman's admission as a nonimmigrant, not the date of his adjustment. Based on this reasoning, the Immigration Judge found that the "time of admission" under section 237(a)(l )(H) of the Act refers to the respondent's initial entry into the United States as a nonimmigrant after inspection and authorization in 1986 and not her later adjustment of status (I.J. at 7). The respondent has maintained throughout these proceedings that because the language and structure of section 237(a)(l)(H) of the Act is distinct from the prior, comparable versions of the waiver, Matter of Connelly, supra, is not controlling (Resp. Briefat 6-10, 13). Instead, she maintains that the statutory language of the current provision and related sections indicate that the section 237(a)(l)(H) waiver is available to those aliens who adjust status within the United States, along with those who enter on immigrant visas (Resp. Brief at 8- 10). Specifically, she argues that the Board has not always found the definition at section 10 1(a)(13)(A) of the Act, 8 U.S.C. 1 1 Ol(a)(l3)(A), adequate to address the intended scope of the term "admission" as used in other parts of the statute (Resp. Brief at 8- 10, 12-13). Additionally, she contends that section 10l(a)(20) of the Act, which defines "lawfully admitted for permanent residence," refers to both entry into the United States with an immigrant visa and adjustment of status from within the United States such that the respondent's adjustment can be construed as an admission for purposes of the waiver (Resp. Brief at 8- 10). The DHS argues that the waiver has only ever applied to fraud or misrepresentation at the time ofentry and that Congress did not indicate an intent to broaden the waiver's scope when it amended and redesignated section 237(a)(l )(H) of the Act (DHS Brief at 4-5).

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See Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA), 305(a)(2), Pub. L. 104-208, 1 10 Stat. 3009 ( 1996). The DHS also notes that section 101(a)(l3)(A) of the Act provides a definition for the terms "admission" and "admitted" as the "lawful entry of the alien into the United States after inspection and authorization by an immigration officer" (DHS Brief at 4-5) The DHS maintains that this definition of admission would include the respondent's initial entry into the United States as a nonimmigrant, but not her subsequent adjustment of status (DHS Brief at 6-7). The DHS further asserts that although the Board has held adjustment to be an admission in some contexts, the circuit courts have not always agreed (DHS Brief at 5-6). (5th Cir. 2008); see also Lanier

See Martinez v. Mukasey, 5 19 F.3d 532 v. United States Attorney General, 631 F.3d 1363 (1 1th Cir. 20 11 );

Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 20 12).

V. ANALYSIS This case is a matter of first impression, as the Board has not previously published a decision regarding whether a section 237(a)(l )(H) waiver is available to aliens who adjust their status within the United States.

See e. g. , Matter of Federiso, 24 I&N Dec. 66 1 (BIA 2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th Cir. 20 10); Matter of Fu, 23 I&N Dec. 985

(BIA 2006). Additionally, none of the circuit courts of appeals, including the United States Court ofAppeals for the Ninth Circuit (the jurisdiction in which this case arises) have addressed this issue in a precedent decision. With questions of statutory interpretation, we look first to the plain and sensible meaning of the statute and give effect to that meaning when possible. 3

See, e.g., Robinson v. Shell Oil Co.,

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

A029 235 328 519 U.S. 337, 340-41 ( I 997);Singh v.

Holder, 649 F.3d 1161, 1166 (9th Cir. 2011); Matter of A-M-, 25 I&N Dec. 66, 74-75 (BIA 2009); see also Nat'! Cable & Telecomms. Ass'n v. BrandX Internet Servs., 545 U.S. 967, 986 (2005) (stating that in interpreting a statute, the first step is to determine whether its plain terms address the question at issue); Chevron, US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). In ascertaining the plain
meaning of a statute, we consider the particular statutory language at issue, the provision in context of the whole statute and case law, and its legislative purpose and intent. A. Statutory Framework and Development .

See id

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1.

Text of Subsection 237(a)(l)(H) of the Act and Related Provisions

The waiver at subsection 237(a)(l)(H) of the Act 1 relates to section 237(a) of the Act (General Classes ofDeportable Aliens). Section 237(a) of the Act includes among the classes of deportable aliens those individuals who were inadmissible at time of entry or adjustment of status as set forth 2 at section 237(a)(l)(A) of the Act. The section 237(a)(l)(H) waiver extends to aliens inadmissible under section 212(a)(6)(C)(i) of the Act, 3 who commit fraud in their entry whether willful or

Subsection 237(a)(l)(H) of the Act reads as follows:

Waiver authorized for certain misrepresentations: The provisions ofthis paragraph relating
to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212( a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien . . . who(i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation. (ii) is a VAWA self-petitioner. A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation. 2 Subsection 237(a)(l )(A) reads as follows: existing at such time is deportable." 3 Section 212(a)(6)(C)(i) reads as follows: (continued. . .) 4

"(A)Inadmissible aliens: Any alien who at the time

of entry or adjustment of status was within one or mor.e classes of aliens inadmissible by the law

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

A029 235 328

innocent, such that section 237(a)( l ) (H) section 237(a) ( l)(H) of the Act.

of the Act 1s a fraud waiver.

See generally

Here, the respondent was charged with removability under section 237(a)(l)(A) ofthe Act based on fraud that she admits to having committed in the course of adjusting her status. As a result, the type of fraud at issue falls within the scope of the section 237(a)( l ) (H) waiver so long as the waiver covers the manner in which she was accorded lawful permanent resident status.

In analyzing this

question, we note that section 237(a)(l )(A) of the Act bases removal on an alien's inadmissibility

and in order to understand their relationship, we review their statutory progression.4 2. Legislative History of the Sections 237(a) ( l )(A) and 237(a)(l)(H) of the Act

at the time of entry or adjustment of status. Yet, section 237(a)(l )(H) ofthe Act waives deportation for inadmissibility at the time of admission. The language of these two provisions is not the same,

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a. The former ground of deportability under section 24 l(a)(l) of the Act and the related fraud waiver under section 241(f) In a parallel to the current section 237(a)( l ) of the Act, former section 241(a)(l) of the Act referred to classes of aliens excludable by law at time of entry as listed under former section 212(a) the Act, Pub. L. 82- 414, 66 Stat. 163, 204 (1 952).5 In tum, of the Act. See section 24l(a)(l)

;J

(...continued)

(C) Misrepresentation (i) In General

Any alien who, by fraud or wilfully misrepresenting a material fa ct, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible. 4 In comparing sections 237(a)(l)(A) and 237(a)(l)(H) of the Act, we do not suggest that section 237(a)(l)(A) of the Act is the sole ground of deportability that may be waived under section 237(a)(l )(H) of the Act, or that the deportability charge under section 237(a)(l)(A) of the Act must be based on section 212(a)(6)(C)(i) of the Act, as the respondent's was.
v.

Compare Gourche Holder, 663 F.3d 882, 886- 87 (7th Cir. 2011 ) (finding that the key phrase in section 237(a)(l )(H) with Vasquez v. Holder, 602 F.3d 1 003, 1 011 (9th Cir. 2010) ("the fraud

of the Act is "provisions of this paragraph" which refers only to grounds of deportability under section 237(a) ( l ) the Act) waiver provision does not limit its coverage to the ground of removal contained in subparagraph 237(a)(l )(A)" ofthe Act); see also Matter of Fu, supra (interpreting section237(a) ( l ) (H) ofthe Act to authorize a waiver under section 237(a) ( l ) (A) of the Act based on charges of inadmissibility at the time of entry under section 212(a)(7)(A)(i)(I) of the Act). 5 Former section 241(a) ( l ) of the Act reads as follows: (a) Any alien in the United States (including an alien crewman) shall, upon the order of the (continued...) 5

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

A029 235 328 section 212(a) of the Act generally referenced classes of aliens ineligible to receive visas and excluded from admission (emphasis added). See generally section 212(a) of the Act, 66 Stat. 163, 182 (1952). Although the term admission was used at section 2 l 2(a) and in other parts of the 1952 Act, the term was not then defined in the statute. In 1957, Congress created an exception (section 7) for the deportation of aliens under section 241 (a)(l) based on their excludability at time of entry as described under former section 212(a)(l 9) of the Act on account of fraud or misrepresentation at the time of entry.6 Section 7, Pub. L. 85-316, 71 Stat. 639, 640-41 (1957).7 The waiver was available to a qualifying alien who was the spouse, parent, or child of a United States citizen or lawful permanent resident. Id. Congress stated that such an alien would be granted a visa and "admitted to the United States for permanent residence," if otherwise admissible, so long as the Attorney General consented to his applying or reapplying for a visa and admission to the United States as a matter of discretion. Id. In INS v. Errico, supra, the Supreme Court noted that the purpose of section 7 was to unite families and preserve family ties. Id. at 219-20, citingH.R. Rep. No. 1199 (1957); S. Rep. No. 1057 (1957). In comparing the language of the deportability ground at former section 241(a)( l ) of the Act and at the section 7 exception, the provisions contained corresponding language, acknowledging that an alien was deportable ifhe was "excludable at time of entry" and this deportability was waivable if the excludability at time of entry was on account of fraud or misrepresentation.

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( ... continued) Attorney General, be deported who(1) at the time of entry was within one or more classes of aliens excludable by the law existing at the time of such entry.

Section 24l(a)(l ) of the Act, 66 Stat. 163, 204 (1952).

6

A parallel to current section 212(a)(6)(C)(i) of the Act, former section 212(a)(19) of the Act provides as follows: "Any alien who seeks to procure, or has sought to procure, or has procured any immigrant visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact." Section 212(a)(l 9) of the Act, 66 Stat. 163, 183 (1952). 7 The legislative history of the exception actually begins with the Displaced Persons Act of 1948, Pub. L. 80-774, 62 Stat. 1009 (1948), which allowed for the admission of war refugees from Communist countries. The Supreme Court noted that some of these refugees misrepresented their nationality to avoid repatriation and in doing so became inadmissible to the United States under section 10 of the Displaced Persons Act based on their willful misrepresentations for the purpose of gaining admission. See INS v. Errico, 385 U.S. 214, 218 (1966). As a result, when the Act was enacted in 1952, committee conferees stated that it should not be interpreted to exclude or deport bona fide refugees who.made misrepresentations to gain admission. H.R. Rep. No. 82-1365, at 18 (1952); see also INS v. Errico, supra, at 218-19. However, because in practice section 10 was not so applied, Congress created section 7. 6
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

A029 235 328

Congress codified the section 7 exception at former section 24 l (f) of the Act in 1961. Section 16, Pub. L. 87-301, 75 Stat. 650, 655-56 (1961). Congress made further amendments to the provision in 1981. Section 8, Pub. L. 97-116, 95 Stat. 1612, 16 16 (1981); see also H.R. Rep. 97-264. These amendments (1) reinstated the discretionary nature of the waiver, (2) provided that the fraud or misrepresentation could be waived "whether willful or innocent," and (3) clarified that section 241(f) of the Act was only intended to apply to lawful permanent residents. Id. b. The 1990 Amendments

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In 1990, Congress amended the language ofboth former sections 241(a)(l ) and 241(f) ofthe Act. Immigration Act of 1990, 602, Pub. L. 101-649, 104 Stat. 4978, 5077 (1990). First, Congress created headings under section 241 of the Act for "(a) Classes ofdeportable aliens," "(1) Excludable at the time of entry or of alijustment of status or [who] violates status," and "(A) Excludable aliens" (emphasis added). In addition, the text of section 241 of the Act was amended so that under section 24l (a)(l )(A) of the Act an alien was deportable if"at the time of entry or alijustment of status [the alien] was within one or more of the classes of aliens excludable by the law existing at such time" (emphasis added). The Immigration Act ofl 990 also repealed the former section 241(f) waiver, and replaced it with section 241(a)(l )(H) of the Act, entitled "Waiver authorized for certain misrepresentations." 104 Stat. at 5079, 5081. The waiver applied to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 212(a)(6)(C)(i) of the Act." Furthermore, sons and daughters, not just children, of United States citizens or lawful permanent residents became eligible to seek this waiver. Although the amendments expanded the ground of deportability for aliens excludable for fraud at time ofentry to include those aliens who were excludable at the time of their adjustment of status, the related fraud waiver remained limited to aliens excludable "at time of entry." As a result, after the Immigration Act of 1990, certain aliens found deportable for being excludable at time of entry as a result of fraud or misrepresentation could continue to apply for waivers under former section 241(a)(l )(H) of the Act, while aliens found excludable at the time of adjustment of status for fraud or misrepresentation could not. c. The 1996 Amendments In 1996, IIRIRA replaced the definition of the term "entry" at section 101(a)(13)(A) of the Act with the terms admission and admitted.8 Section 101(a)(l3) of the Act;' IIRIRA Section 301(a), 110

The term entry was defined under former section 10 1(a)(13) of the Act (1952) as the coming of an alien into the United States from a foreign port or place or from any outlying possession. Although not defined, the term admitted was used under the former statuto1y scheme, including former sections 101(a)(20) using the term "lawfully admitted" for permanent residence), 2 12 (referring to being excluded from "admission"), 214 (referencing the "admission" of (continued... ) 7
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

A029 235 328 Stat. 3009-575. IIRIRA also redesignated section 241 as section 237 ofthe Act and amended the language ofthat section in rendering removable any alien "in and admitted to" the United States that fell within one or more ofthe classes ofdeportability. Section 23 7(a)(l) ofthe Act, IIRIRA sections 30l(d)(2), (3), 110 Stat. 3009-579 (1996). Consequently, the classes ofdeportable aliens in and admitted to the United States under section 237(a) ofthe Act now includes those aliens described at section 237(a)(l )(A) ofthe Act, or "inadmissible aliens," who "at the time ofentry or adjustment ofstatus" were inadmissible by the law existing at such time. As a result, the plain text ofthe Act explicitly recognizes that an alien who was inadmissible at the time of adjustment is "in and admitted" to the United States and removable for purposes ofsection 237(a) ofthe Act, just like an alien "in and admitted" to the United States through entry on an immigrant visa. See also Matter of Rosas, 22 I&N Dec. 616, 621-23 (BIA 1999). With regard to the section 237(a)(l)(H) waiver, IIRIRA modified its language through conforming amendments by striking the words "excludable" and "entry" and replacing them with "inadmissible" and "admission." IIRIRA Sections 308(d)(2)(A), (f)(l )(M), 110 Stat. 3009-617, 621; H. Rpt. 104-828. However, Congress left the language basing removal on inadmissibility at time ofentry or adjustment ofstatus at section 237(a)(l) ofthe Act, notwithstanding the fact that the waiver continues to waive removability for certain aliens inadmissible at time of admission. A

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(...continued) non-immigrants), 245 (referring to the adjustment ofstatus ofa non-immigrant to that ofa person "admitted" for permanent residence) ofthe Act, 8 U.S.C. l 10l (a)(20), 1182, 1184, 1255 (1952). Section 10l(a)(l3) ofthe Act provides as follows:

(A) The terms "admission" and "admitted" mean, with respect to an alien, the lawful entry ofthe alien into the United States after inspection and authorization by an immigration officer. (B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted. (C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes ofthe immigration laws unless the alien(i) has abandoned or relinquished that status, (ii) has been absent from the United States for a continuous period in excess of180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States while under legal process seeking removal ofthe alien from the United States, including removal proceedings under this Act and extradition proceedings, (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted reliefunder section 212(h) or 240A(a), or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer. 8
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

A029 235 328 tension exists in the language between these two provisions, as an alien remains removable for being inadmissible at time of entry or adjustment of status whereas the waiver covers an alien's inadmissibility at the time of admission. B. Relevant Case Law Regarding the Section 237(a)(l )(H) Waiver and the Use of the Terms Entry and Admission. Because we do not derive statutory meaning in a vacuum, we disagree with the DHS's assertion that we are constrained by the language of section 101(a)(l3)(A) of the Act alone in ascertaining the meaning of the phrase "at the time of admission" as used in section 237(a)(l)(H) of the Act. We have stated in numerous cases that an alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or by adjustment of status ifthe alien is already in the United States. Matter of Koljenovic, 25 I&N Dec. 219, 221 (BIA 2010) (concluding that " [a]djustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace"). Furthermore, in both our pre- and post-IIRIRA cases we have repeatedly held, that "adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States." Matter of Alyazji, 25 I&N Dec. 397, 399 (BIA 2011). It "is the functional equivalent of inspection and authorization to enter at the border." Matter of Rainford, 20 I&N Dec. 598, 601 (BIA 1992) (citing Matter of Connelly, supra, at 159, and Matter of Smith, 11 I&N Dec. 325, 326-27 (BIA 1965)). It is not necessary that section 101 (a)(13)(A) ofthe Act specifically include adjustment ofstatus in the definition ofan "admission." Instead, as we held in Matter of Rosas, supra, aliens who are lawfully admitted for permanent residence through the adjustment of status process, are considered to have effectuated an "admission" to the United States.
In light of the case law discussed in the following sections and the language of the current and former statutory provisions outlined above, we conclude that aliens charged with removal based on their inadmissibility at the time of adjustment of status are among the classes of aliens "in and admitted" to the United States under section 237(a)(l ) of the Act. Thus, the waiver at section 237(a)(! )(H) ofthe Act waives the ground ofremoval for misrepresentation at the time of adjustment of status, just as it serves to waive the same grounds ofremoval linked to inadmissibility arising at the time of entry on an immigrant visa.

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1.

Our finding is consistent with the use of the term "admission," in the place of "entry,"as used in section 237(a)(l )(H) of the Act.

In Matter of Connelly, supra, and Khadjenouri v. INS, supra, decided in 1984 and 1972, respectively, this Board and the Ninth Circuit held that the section 241(f) waiver was limited and could only be used where fraud was committed at the time of entry. However, the former fraud waiver specifically applied to fraud at the time of "entry," and as we described above in Section V.A.2.a., supra, Congress has since amended the language of section 237(a)(l ) of the Act to concentrate on those aliens "in and admitted to" the United States rather than those who have only

9
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A029 235 328 entered, therefore, shifting the focus ofthe waiver to apply to misrepresentation and fraud at the time of "admission."10 While the legislative history of IIRIRA is not specific as to why Congress replaced the word entry with admission at section 237(a)(l )(H) ofthe Act, it is clear that IIRIRA amended the removal provisions as a whole to focus on "admissions" rather than "entries,"and the plain language of section 237(a) of the Act contemplates that aliens who were inadmissible at the time of adjustment of status are "in and admitted" to the United States and therefore subject to removal under section 237(a)(l)(A) of the Act.

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Furthermore, section 101(a)(l 3)(A) of the Act was created in 1996 under section 301 ofIIRIRA entitled "treating persons present in the United States without authorization as not admitted." Aliens who have adjusted status from within the United States are not persons present in the United States without authorization, suggesting that Congress did not intend for section 101(a)(13)(A) of the Act to preclude a finding that aliens who have adjusted from within the United States have been admitted. The conference report states that in creating section 10l(a)(l3)(A) of the Act, Congress was "replacing the definition of entry with a definition for 'admission' and 'admitted,"' rather than providing the exclusive definition. H. Rpt. 104-828. Moreover, under section 10l(a)(13)(B) of the Act, Congress listed those aliens who shall not be considered to have been admitted and did not include aliens who adjusted from within the United States. Finally, section 101(a)( l 3)(C) ofthe Act states that an alien "lawfully admitted for permanent residence" (defined under section 101(a)(20) of the Act) shall not be regarded as seeking an admission to the United States unless certain criteria are met. Since section 101(a)(20) of the Act includes both aliens who entered with immigrant visas and those who adjusted subsequent to entry, section 101(a)(l3)(C) ofthe Act implies that aliens who adjusted from within in the United States have already been admitted.11 Additionally, as previously indicated, Congress' purpose in enacting the waiver was to keep families united, so much so that the class of aliens qualifying for the waiver has been expanded to

entry under former section 10 1( a)(l3) ofthe Act did not necessarily require an admission. For example, former section 24l(a)(l)(B) of the Act made an alien deportable for "entry" without inspection. However, former section 24l(a)( l )(B) of the Act was removed from the deportability grounds, placed under the inadmissibility grounds at section 212(a)(6)(A)(i) ofthe Act, and amended to state that an alien present in the United States without being admitted or paroled is inadmissible. See IIRIRA section 30l(c)(l), 110 Stat. 3009-578; H. Rpt. 104-828.

10 An

Martinez v. Mukasey, supra, at 545, the Fifth Circuit noted that the Immigration Technical Corrections Act of 1997 sought to amend section 101(a)( l3) of the Act to add aliens who adjusted subsequent to entering the United States, which the Court stated demonstrated that some members of Congress felt an admission did not include post-entry adjustment. See H.R. 2413, 105th Cong. 4 (1997) (proposing section 10 l(a)(l 3)(D) ofthe Act, which provided that "[i]n the case ofan alien adjusted to the status of an alien lawfully admitted for permanent residence, such alien shall be regarded as having been admitted on the date of such adjustment"). However, H.R. 2413 was not enacted, and the record does not otherwise indicate the intent of the representative proposing the correction such that we are not persuaded the bill cuts against our determination.
10
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In

A029 235 328 include the sons and daughters ofUnited States citizens and lawful permanent residents. See, e.g., Matter of Federiso, supra, at 663-64. Construing inadmissibility "at the time of admission" under the amended language of section 237(a)(! )(H) of the Act to include adjustment gives meaning to the statute in keeping with its humanitarian purpose to prevent the separation of families. Cf Judulang v. Holder, 132 S. Ct. 476, 485 (2011) (stating that agency action must be based on "relevant factors," meaning that the Board's approach must be tied to the purposes of the immigration law or appropriate operation of the immigration system and that a method for disfavoring deportable aliens bearing no relation to an alien's fitness to remain in the country is arbitrary and capricious). Finally, limiting the waiver to the time of an alien's entry leads to incongruous application of section 237(a) ofthe Act if aliens inadmissible at the time ofentry or adjustment ofstatus are subject to removal as aliens in and admitted to the United States but the waiver for fraud or misrepresentation at the time of admission applies to entry alone, when the statutory language no longer explicitly states as much. Although section 10 I (a)( l 3)(A) of the Act defines "admission" and "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer," the definition does not adequately address the scope of the waiver at section 237(a)(l)(H) of the Act within the whole of section 237(a) of the Act. Accordingly, we construe the phrase "at the time of admission" under section 237(a)(l )(H) of the Act to also include adjustment of status from within the United States. 2. Our finding is consistent with other interpretations of adjustment of status as an admission. Our holding comports with the well-established understanding that adjustment of status constitutes an admission as the term is used in certain other parts of the Act. Both this Board and the Ninth Circuit have recognized in certain instances that an alien who has adjusted status to that of a lawful permanent resident has been admitted to the United States. Specifically, we rely on decisions discussed irifra as underscoring the fact that an admission may include adjustment ofstatus in the United States depending on the context in which the term is used, as many of the Board and the Ninth Circuit cases cited have found that section !Ol(a)(l3)(A) of the Act does not provide the exclusive definition for the term. a. Section 237(a)(2)(A)(iii) of the Act In Matter of Rosas, supra, the Board held that an alien who was convicted of an aggravated felony after he adjusted to lawful permanent resident status was subject to removal under section 237(a)(2)(A)(iii) of the Act,12 as having been convicted of an aggravated felony "at any time after admission." There, the respondent initially entered the United States without inspection and later adjusted status under section 245A of the Act, 8 U.S.C. 1255a. The Board noted that adjustment of status does not meet the literal definition of admission or admitted under section 10l(a)(13)(A) of the Act, because it is unclear that a change in status can be characterized as an "entry" into the United States. Id at 617-18. However, the Board found that section 101(a)(13)(A) of the Act does not adequately address the intended scope ofthe term "admitted" as used at section 237(a)(2)(A)(iii) of the Act and that the respondent had accomplished an admission after entry as an alien lawfully 12 Section 237(a)(2)(A)(iii) reads as follows: "Aggravated felony-Any alien who is convicted of an aggravated felony at any time after admission is deportable." 11
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

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A029 235 328 admitted for permanent residence under section 10l(a)(20) of the Act. Id at 619, 623. In reaching this conclusion, we relied on language in the adjustment provisions and section 101(a)(l3)(C) of the Act, which, as noted above, discusses the circumstances under which a permanent resident shall be regarded as seeking admission to the United States.13 Id at 618-20. Similarly, in Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001), the Ninth Circuit ruled that an alien who entered without inspection but later adjusted status and was thereafter convicted of an aggravated felony has been admitted for purposes of removal under section 237(a)(2)(A)(iii) of the Act. There, the Ninth Circuit found that the alien had been lawfully admitted as a permanent resident pursuant to section 101(a)(20) of the Act before he was convicted of an aggravated felony and that he was unable otherwise to explain why Congress would create a loophole for him as an alien who entered without inspection and then adjusted status. 14 Id b. Section 237(a)(2)(A)(i) of the Act

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13 We also observed that if we did not read the term "admitted" more broadly to include aliens who adjusted status after having entered without inspection, such aliens would be inadmissible under section 212(a)(6)(A)(i) ofthe Act, which IIRIRA does not appear to have intended, as such a reading renders these aliens ineligible for certain forms of relief generally available to lawful permanent residents. Id. at 621, 623. However, Matter of Rosas, supra, does not stand for the proposition that adjustment of status should only be considered an admission when it would otherwise lead to unreasonable results. The potential for absurd results was cited in support of our statutory interpretation in Matter of Rosas, supra; however, it was the language of the Act upon which our analysis was based.

Ocampo-Duran v. Ashcroft, supra, did not address Matter of Rosas, supra, but the Ninth Circuit has cited favorably to our decision in other cases. See e. g. , Guevara v. Holder, 649 F.3d 1086, 1090 (9th Cir. 2011); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101 (9th Cir. 2011); see also Lemus-Losa v. Holder, 576 F.3d 752, 757 (7th Cir. 2009) (stating that despite section 101(a)(l3)(A) of the Act, the United States Court of Appeals for the Seventh Circuit does not disagree with the Board's position that admission may mean different things depending on the part ofthe Act at issue).
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A029 235 328 With regard to section 237(a)(2)(A)(i) of the Act, 15 in Matter of Alyazji, supra, we stated that there are two groups of aliens "in and admitted" to the United States under section 237(a) of the Act: (I) aliens who entered the United States with permission after inspection and (2) aliens who entered the United States without inspection or were paroled but who subsequently became lawful permanent residents. Id at 399. We acknowledged that members of the second group may never have been admitted within the meaning of section 101(a)(13)(A) of the Act, but that an alien who obtains permanent resident status from within the United States is assimilated to the same status as an alien admitted at the border with an immigrant visa. Id
,

As for which date of admission should be applied in calculating whether the conviction in question occurred within the relevant 5-year period, we overruled Matter ofShanu, 23 I&N Dec. 754 (BIA 2005), vacated sub nom. Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006), in part which held that the date resets each time an alien is admitted to the United States. Id. at 397-98. Instead, in Matter of Alyazji, supra, we concluded that the relevant date comes from the admission "by virtue of which the alien was then in the United States" when the CIMT offense was committed. Id We determined that Matter of Shanu, supra, focused too much on historical practice and that the grammatical structure of section 237(a)(2)(A)(i) of the Act had changed. Id. at 404-05. Specifically, we found that the phrase "within five years after the date of admission" was one specific time "after entry," such that the current text had been narrowed to connote a single date tethered to a pertinent offense. Id. at 405. Consequently, we reasoned that the date the 5-year period begins depends on whether the alien was already admitted and had not left the country prior to adjustment before commission of the CIMT, and that the alien in Matter of Alyazji, supra, was not deportable because although he adjusted status in 2006 and committed his CIMT offense in 2007, he was admitted to the United States as a nonimmigrant in 2001 without leaving. Id. at 405-07. Here, the Immigration Judge reasoned that because Shivaraman v. Ashcroft, supra, states there can be only one date of admission under section 237(a)(2)(A)(i), there can be only one time of admission under section 237(a)(l)(H) of the Act, which is the time of entry. In Matter of Alyazji,

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15

Section 237(a)(2)(A)(i) reads as follows:

(2) Criminal offenses(A) General crimes(i) Crimes of moral turpitude--Any alien who(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful pe1manent resident status under section 245(j)) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. 13
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A029 235 328

supra, we found that there was one relevant date of admission for purposes of section 237(a)(2)(A)(i)(I) of the Act and agreed with the holding ofShivaraman v. Ashcroft, supra, on its face, in that Shivaraman was admitted to the United States as a nonimmigrant and maintained that status before adjusting. Id. at 398. However, we observed that the Ninth Circuit had not addressed a case wherein an alien violated nonimmigrant status. Matter of Alyazji, supra, at 407, n.8. Furthermore, Shivaraman v. Ashcroft, supra, does not challenge the holdings of Matter ofRosas, supra, or Ocampo-Duran v. Ashcroft, supra, that aliens who adjusted from within the United States after entering without inspection are "admitted" for purposes of section 237(a) of the Act.
Consequently, when applying these principles here, we disagree with the Immigration Judge that parsing of the statutory language in Shivaraman v. Ashcroft, supra, is dispositive for purposes of interpreting the term admission as used in section 237(a)( 1 )(H) of the Act. Accordingly, while we recognize that the language of section 23 7(a)(l )(H) of Act is subtly different from that of section 237(a)(2)(A)(i) of the Act, we also find that the parallel use of the term admission in both provisions offers support for the conclusion that an adjustment qualifies as an admission for purposes of section 237(a)(l)(H) of the Act. c. Section 212(h) of the Act In Matter ofKoljenovic, supra, the Board held that an alien who entered without inspection and later adjusted status has "previously been admitted to the United States as an alien lawfully admitted for permanent residence," and therefore, must satisfy the 7-year residency requirement of section 212(h) of the Act. We took note of Matter of Rosas, supra, and its discussion of section 101(a)(13)(A) of the Act in finding that adjustment of status after having entered without inspection was an admission. Otherwise the alien in Matter of Koljenovic, supra, would be a permanent resident subject to inadmissibility under section 212(a)(6)(A)(i) of the Act. Furthermore, we observed that the legislative purpose of section 212(h) of the Act was to create congruity with the continuous residence requirements for cancellation ofremoval under section 240A(a)(2) of the Act, 8 U.S.C. 1229b(a)(2), and that Congress presumably did not intend for an alien who entered illegally and adjusted status to avoid the restrictions of section 2l2(h) of the Act when an alien who was admitted with an immigrant visa could not. Id. at 222-23. The Fourth, Fifth, and Eleventh Circuit Courts of Appeals have construed section 212(h) of the Act differently, finding that by the statute's clear and unambiguous terms an admission, as used in that context, does not include adjustment of status. Bracamontes v. Holder, supra; Martinez v. Mukasey, supra; Lanier v. United States Attorney General, supra. However, as we explained in Matter of E. W Rodriguez, 25 I&N Dec. 784 (BIA 2012), we do not agree with the formulation adopted by in the foregoing circuits. Id. at 788-89. We are not compelled to apply the analysis used in Bracamontes v. Holder, supra; Martinez v. Mukasey, supra, and Lanier See v. United States Attorney General, supra, outside of their respective circuits. Matter of E. W Rodriguez, supra, at 788-89. Nor are we bound by those decisions within those circuits when addressing eligibility for relief other than section 212(h) waivers. Matter of Guillot, 25 I&N Dec. 653 (BIA 2011). Accordingly, we are not persuaded that the analysis in the Fourth, Fifth, and Eleventh Circuit cases involving 2 l 2(h) waivers undercuts our conclusion here that the

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'

. A029 235 328 term admission as used in section 23 7(a)(l )(H) of the Act extends to aliens who adjusted their status in addition to those who entered on immigrant visas. 16 We reach the foregoing conclusion, in part, because, as the respective circuit courts have explained, they endeavored to address the term "admitted" as used at section 212(h) of the Act, which they found to be clear and unambiguous. Specifically, the Fifth Circuit acknowledged that unlike in Matter of Rosas, supra, where we addressed the use of the term "admission" in section 237(a) of the Act, the Fifth Circuit was asked to look at the use of the term in a wholly different context, suggesting that it was not attempting to supplant our decision in Matter of Rosas, supra, as applied to section 237(a) of the Act. Martinez v. Mukasey, supra, at 542. Similarly, the Eleventh Circuit in Lanier v. United States Attorney General, supra, recognized that the critical question with respect to statutory eligibility for a waiver under section 212(h) of the Act is whether the "alien... [had] previously been admitted to the United States as an alien lawfully admitted for permanent residence," suggesting that the specific, and seemingly repetitive yet distinct, language was designed to exclude only a sub-set of lawful permanent residents from being able to use the waiver. Id. at 1366; see also Matter of Guillot, supra, at 655. Finally, the Fourth Circuit acknowledged that it has only addressed the meaning ofthe term "admission" as it pertains to section 212(h) of the Act and as used at section 237(a)(2)(A)(i) of the Act, which references "the date of admission," both distinct uses of the term at other portions of the Act. Bracamontes v. Holder, supra, at 388-89; Aremu v. Department of Homeland Security, supra, at 582-83. Moreover, the Fourth Circuit has left open the possibility that the term may be ascribed other meanings in other contexts. Id. at 583 (acknowledging, for instance, that where an alien has no prior admission, an adjustment of status may so qualify as the date of admission for purposes of section 237(a)(2)(A)(i) of the Act, although noting that the question was not before the Fourth Circuit in that case. C. Other Eligibility Considerations Where an alien establishes that she was inadmissible at the time of admission for fraud falling within the scope of a 237(a)(l )(H) waiver, she must also establish that she is the spouse, parent, son, or daughter of a United States citizen or lawful permanent resident. Section 237(a)(l )(H)(i)(I). The applicant must also have been in possession of an immigrant visa or equivalent document at the time the inadmissibility arose and, but for the fraud or misrepresentation, be otherwise admissible, Section 237(a)(l )(H)(i)(Il). Finally, the applicant must demonstrate that she merits relief in the exercise of discretion. Section 237(a)(l )(H). Here, we have determined that the respondent's adjustment of status qualifies as an admission for purposes of a 237(a)( I )(H) waiver. Moreover, there is no indication in the record of proceedings that the parties contest the nature of the fraud or misrepresentation (i.e. the respondent's failure to disclose her bigamous marriage at the time of adjustment) or that this act would not fall within the scope of the waiver had the respondent entered on an immigrant visa (I.I. at 6-8). Additionally, the respondent has a United States citizen husband and child (I.J. at 7; Exhs. 3C-D, 3F). Accordingly,

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Although not before us, our analysis supports the conclusion that even within the Fourth, Fifth, and Eleventh Circuits, an alien who seeks a 237(a)(l )(H) waiver to address fraud or misrepresentation at the time of adjustment would be statutorily eligible for this form of relief. 15
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

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A029 235 328 we will focus on the remaining issues: whether she (1) was in possession of an immigrant visa or equivalent document at the time of her admission and (2) merits relief in the exercise of discretion. 1. The Respondent Is in Possession of an Immigrant Visa or Equivalent Document. We agree with the respondent's assertion on appeal that she is in possession of a document equivalent to an immigrant visa (Resp. Brief at 10-11). In so doing, we note that the Immigration Judge did not find and the DHS did not argue that the respondent was ineligible on this basis. Here, the respondent adjusted her status as the wife of a United States citizen, she was eligible to receive an immigrant visa and had an immigrant visa immediately available to her when she applied for this benefit. Accordingly, we conclude that upon her adjustment of status, because she was issued a Permanent Resident Card (Form I-551) reflecting her class of admission as the spouse of a United States citizen, she was in possession of a document equivalent to an immigrant visa (Exh. 3B). 2. The Respondent Merits Relief in the Exercise of Discretion. Exercising discretion requires a balancing of the respondent's undesirability as a permanent resident with social and humane considerations to determine whether a grant of relief is in the best interests of the country. Matter o f Tijam, 22 I&N Dec. 408, 412-13 (BIA 1998) (discussing the negative and positive factors to be balanced in evaluating discretion under section 237(a)(l)(H) of the Act); see also Virk v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002). In the instant case, the Immigration Judge found that the respondent's equities include (!) more than 20 years of permanent residence in the United States, (2) close family ties including a United States citizen child and husband, (3) home and business ownership, and (4) participation in her child's school activities (I.J. at 7). The Immigration Judge then weighed these equities against the respondent's underlying fraud and the fact that, prior to her adjustment and while present in the United States as a nonimmigrant visitor, the respondent worked without authorization (I.J. at 7-8). While the Immigration Judge determined that the respondent's immigration violations outweigh her equities we conclude that the positive considerations here are more weighty. In so doing, we do not mean to diminish the seriousness of the respondent's immigration law violations, and in particular her bigamous marriage entered into for immigration purposes in obtaining lawful permanent residence. However, given the length of time that has passed since she committed the underlying fraud, her lack of a criminal record, and the strength of the equities she has acquired over the last 20 years, we are persuaded that, on balance, the respondent has demonstrated that she is merits a favorable exercise of discretion. Accordingly, upon our de nova review, we reverse the Immigration Judge's discretionary determination. See 8 C.F.R. 1003.l (d)(3)(ii). VI. CONCLUSION We conclude that an alien's adjustment of status from within the United States after entry is an admission for purposes of section 23 7(a)(l )(H) of the Act. As a result, the phrase "inadmissible at time of admission," refers to an alien's inadmissibility at the time lawful permanent resident status is accorded, regardless of whether such status is conferred by entry with an immigrant visa or by 16

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Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

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A029 235 328 adjustment of status from within the United States. Therefore, the respondent is eligible to waive her removal under section 237(a)(l)(A) of the Act as an alien inadmissible for fraud or misrepresentation at the time of her adjustment of status by use of a section 237(a)(l)(H) waiver. Furthermore, the respondent has demonstrated that she is otherwise statutorily eligible for the waiver and deserving of relief in the exercise of discretion. Accordingly, the following orders shall be entered. ORDER: The respondent's appeal is sustained.

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FURTHER ORDER: Pursuant to 8 C.F.R. 1003. l (d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the DHS the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. 1003 .47(h).

FOR THE BOARD

17
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:
In re:

A029 235 328 SUNIPHA DAMOUNI

JAN I 0 2013

DISSENTING OPINION: Roger A. Pauley

As will be explained below, by departing from the principle that a statute' s plain language should be applied unless it gives rise to absurd or bizarre consequences, the majority's conclusion is unsupportable. As the ma jority opinion observes, it was settled law, both under federal court of appeals decisions and Board precedent, that the predecessor statute to section 237(a)(l)(H)of the Act, justment of status but namely section 24 l (f), did not allow a waiver for fraud committed during ad only applied to waive fraud at tbe time of entry. E.g., Khad jenouri v. IN S, 460 F.2d 461 (9th Cir. 1 972); Pereira-Barbeira v. IN S, 523 F.2d 503 (2d Cir. 1975); Matter ofConnelly, 1 9 I&N Dec. 1 5 6 ected b y the Immigration and Nationality Act (BIA 1 984). Nothing i n the amendments eff Amendments of 1 9 8 1 and the Immigration Act of 1990, that recodified section 241 (f) as section 237(a)(l)(H) with certain changes, discussed inMatter a /Fu, 23 I&N Dec. 985, 987-8 (BIA2006), reflects an intent by Congress to broaden the scope of tbe waiver at issue here. 1 Nor does the majority contend otherwise. The majority seize upon the change in language from "entry" to "admission" in the introductory language in section 237(a)(l ), which applies to all the subparagraphs thereof, and then rely on some ofourrecentprecedent decisions to find that an adjustment ofstatus is an "admission" and therefore that the section 237(a)(l )(H) waiver has been transformed and broadened to embrace not only fraud at the time of entry but fraud at the time of adjustment. I cannot agree. Whatever the policy arguments for such an expansion, the result lacks any legal support. The change in language from "entry" to "admission" appears to be merely a conforming jority. See amendment, not one intended by Congress to have the substantive effect found by the ma IIRIRA, Pub. L. No. 1 04-208, 305(f)(l )(M), 1 1 0 Stat. 3009-6 14-21 (inserting "admission" in place of "entry" in section 24l (a)(l)(H) under a section entitled, in part, "additional conforming amendments");

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see also Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010)(similarly rejecting a

claim that changes wrought by IIRIRA were intended to or had the effect of altering the Board's longstanding view that "admission" required only procedural not substantive regularity). The definition of "admission" and "admitted" wrought by IIRIRA in section ! O l (a)( 13)(A) requires, first and foremost, that an alien has effected a "lawful

entry." The majority' s reading of

tbe language in section 237(a)(l)(H) permitting a fraud waiver "on the ground that [an alien was]

Indeed in Matter ofFu we reviewed the legislative history attendant to the 1 9 8 1 amendments to

former section 241 (f) of the Act. There, we stated that "section 237(a)(l)(H) is best interpreted as authorizing a waiver ofremovability under section 23 7(a)(l )(A) based on charges of inadmissibility

at the time ofentry . . . . " Matter o fFu, supra, at 988 (emphasis added).
Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013) (Pauley, dissenting)

A029 235 328 inadmissible at the time of admission" is supportable only if the phrase "time of admission" is construed to include adjustment of status. But we have never interpreted the definition in section 1 0 l(a)(13)(A) to

always and for all purposes encompass adjustment of status. Rather, the proper e.g., Matter of Briones, 24 I&N

touchstone of statutory analysis, and one that we have consistently employed, is that plain language will apply unless it leads to absurd or bizarre consequences. See, Dec. 355, 3 6 1 (BIA 2007)(citing Demarest v. While Matter

Manspeaker, 498 U.S. 1 84 (199 1)).

of Alyazji, 25 I&N Dec. 397 (BIA 20 1 1), and other of our precedent decisions form of admission, albeit nowhere expressed dicta and represent an

relied on by the majority contain broad language purporting to find that the Board has consistently deemed an adjustment of status to constitute another by Congress in the definition of "admission," such past expressions are

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unfortunate departure from established principles of statutory interpretation. Our actual holding in

Matter of Alyazji, supra, is in fact consistent with the view that the language chosen by Congress
to define "admission" in section 1 0 1 (a)(13) of the Act can be disregarded only where absurd consequences would follow from a literal application; we observed in that case, in connection with the phrase "the date of admission" in section 237(a)(2)(A)(i)(I)(relating to aliens who are convicted of a crime of moral turpitude within five years after "the date of admission"), that unless "admission" were construed to include adjustment of status an alien not previously admitted who became a lawful permanent resident (LPR) via adjustment of status would be deemed to be a LPR even though he or she had never been admitted, an outcome we regarded as absurd. We advanced the same rationale in Matter of Espinosa

Guillot, 25 I&N Dec. 653 (BIA 201 1 ). But see note 3, infra

(noting that some courts of appeals disagree with our absurdity conclusion even in this context). By contrast, there is clearly no absurdity that results from giving the definition of "admission" its plain and natural meaning (i.e. requiring an

entry after inspection) if section 237(a)(l)(H) is still

interpreted to permit a fraud waiver only for fraud committed at the time of entry rather than adjustment of status, at least where, as here, the alien was previously admitted in some status. 2 Such a limitation was indeed the law under Matter violate due process. Congress could easily have included within the definition of "admission" in section 1 0 1 (a)(13)(A) a reference to adjustment of status. The absence of any such reference, together with the absence of any absurdity resulting from application ofthe actual definition Congress did employ in the context of section 237(a)(l )(H), should dictate an affirmance of the Immigration Judge's justment of decision. Indeed, another instance where Congress has noted that admission and ad status are not the same can be found in section 2 12(h)(2) of the Act, where Congress provided for a waiver where the Attorney General has "consented to the alien's applying or reapplying ... for admission to the United States,

of Connelly and like cases for many years and was

never found to result in bizarre or absurd consequences or to produce results so inequitable as to

or adjustment of status."

As an alien "in and admitted" to the United States by virtue ofher admission as a visitor, I would not conclude that the respondent' s later adjustment of status in 1 988 constituted a second "admission" rendering her eligible for the waiver in section 237(a)(l)(H), where Congress has not signaled any intent to upset the longstanding limitation on that relief reflected in both federal comt

There is no occasion to opine on the proper result in a case where an alien had never been admitted

prior to obtaining adjustment of status. 2

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013) (Pauley, dissenting)

A02 9 235 328 (including the circuit in which this case arises) and Board precedents. 3 Moreover, even assuming that the respondent' s adjustment of status in 1 988 following her admission as a noninunigrant in 1986 was a further "admission,"the ma jority's holding seems in tension with

Matter of Alyazji, supra.

In that decision, we construed the language in section

237(a)(2)(A)(i) of the Act, relating to crimes of moral turpitude conunitted within five years after

"the date of admission" to refer to only one date, namely the date pursuant to which the alien was ln the United Srates. Tlie-languageln section 237(a)(l)(Pf), inissuehere;-is conrparab1e;referring to waivers of certain grounds of inadmissibility for aliens who "were inadmissible at the time of admission." In light of Alyazji, the majority need to explain why it is appropriate to treat this
language as encompassing multiple dates of admission where, prior to her adjustment of status, the 4 respondent was already admitted, and remained in the country pursuant thereto. I therefore respectfully dissent.

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LJ.,.g
3

'

I recognize that, as the majority's decision favors the alien, no direct review of this order by way

of a petition for review is possible. But the decision will in,evitably be considered by courts of appeals as they review other decisions of the Board equating adjustment of status with admission in situations where the results are adverse to the petitioner. As we have recognized recently, three circuits have rendered decisions that will be difficult if not impossible to square with the reasoning in the majority opinion in this case.

See Matter of E. W Rodriguez, 25 I&N Dec. 784 (BIA

2 0 12)(acquiescing in decisions from the Fourth, Fifth, and Eleventh Circuits holding that, due to the plain language ofthe phrase "in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence," the aggravated felony bar in section 2 12(h) applies only if the applicant was admitted as a lawful permanent resident at the time of entry at the border, not ifhe was merely adjusted thereafter to lawful permanent resident status). To these three "dissenting" circuits another has recently been added, see Hanifv. A ttorney

General of U.S. ,

694 F.3d 479 (3d Cir. 2012), while to my knowledge no court of appeals has to date affirmed or deferred to our understanding of the scope of the section 2 12(h) bar as extending to all LPRs convicted of an aggravated felony. The court inHanifalso rejected the "absurdity" rationale for our interpretation by joining the Fifth Circuit in finding it not absurd, and within the contemplation of Congress, that an alien who was never admitted can be a lawful permanent resident. Thus, the instant decision, apart from being erroneous, appears likely to result in uneven enforcement throughout the nation.
4

A reading that the waiver provision contemplates only a single instance of admission does not

render the language in section 237(a)(l)(H) regarding "the" time of admission superfluous because while adjustment of status ordinarily requires a prior admission, there are statutory exceptions such as former section 245(i), as well as NACARA and HRIFA, where Congress has extended eligibility for adjustment of status to significant classes of inadmissible aliens. See Matter of Lemus, 24 l&N 373, 378 (BIA 2007). 3

Cite as: Sunipha Damouni, A029 235 328 (BIA Jan. 10, 2013) (Pauley, dissenting)