APPLYING FOR ADJUSTMENT OF STATUS AFTER REENTERING THE UNITED STATES WITHOUT BEING ADMITTED: I-212s, 245(i) and VAWA 2005

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1 The American Immigration Law Foundation th Street Des Moines, IA PRACTICE ADVISORY APPLYING FOR ADJUSTMENT OF STATUS AFTER REENTERING THE UNITED STATES WITHOUT BEING ADMITTED: I-212s, 245(i) and VAWA 2005 I. Introduction June 5, 2006 By Matt Adams, Stephen Manning and Beth Werlin Individuals who reentered the United States without being admitted and now are eligible for adjustment of status face various obstacles to obtaining relief. Not only are they subject to inadmissibility for entering without admission, but some would-be-applicants may be subject to permanent inadmissibility bars for having been deported or for previously having accrued more than one year of unlawful presence. Furthermore, individuals with prior removal or deportation orders may be subject to reinstatement of removal. The availability of an I-212 waiver and/or eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act (INA) or the Violence Against Women Act (VAWA) may cure these problems. However, the Board of Immigration Appeals recently hampered efforts to cure inadmissibility problems in Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006). As this Practice Advisory explains, the Board s decision conflicts with congressional intent as expressed in VAWA 2005 and is an incorrect interpretation of the law. The decision also conflicts with positive case law from the Ninth Circuit. Attorneys with clients who are eligible for adjustment of status but for their illegal reentry are encouraged to challenge Matter of Torres-Garcia. This Advisory is intended to assist attorneys representing individuals with defensive applications (applications they file while in proceedings). Until the law is developed further, advocates are not advised to file affirmative applications for adjustment of status for clients who illegally Matt Adams is Impact Litigation Unit Director at the Northwest Immigrants Rights Project. Stephen Manning is in private practice at the Immigrant Law Group, LLP in Portland, Oregon. Beth Werlin is the Litigation Clearinghouse Attorney at the American Immigration Law Foundation.

2 reentered. Furthermore, this Advisory is accurate as of the issue date. The caselaw is still developing and two of the cases discussed below have pending petitions for rehearing. II. Background A. Section 212(a)(9)(A), Section 212(a)(9)(C), Section 241(a)(5), Section 212(a)(9)(C)(i)(I) Matter of Torres-Garcia interprets two related sections of the Immigration and Nationality Act, sections 212(a)(9)(A) and 212(a)(9)(C)(i)(II). Although Matter of Torres-Garcia does not specifically address section 241(a)(5) (reinstatement of removal), the Board s decision implicates this provision as well. Section 212(a)(9) regulates the admissibility of individuals who have made illegal entries or had status violations. Section 212(a)(9)(A) makes individuals who were removed (or deported) inadmissible for many years after the removal. The inadmissibility period may be waived if DHS grants consent or permission to the admission. This request for permission is filed on form I-212 and is commonly referred to as I-212 consent to admission relief. The regulations at 8 C.F.R implement the consent to admission provisions. Section 212(a)(9)(C)(i)(II) makes permanently inadmissible individuals who were removed from the United States and then, post-removal, made an illegal entry. After ten years, an individual may seek to waive the permanent inadmissibility by asking DHS for consent for admission. It is unclear at this time how an individual can seek this consent for admission. Section 241(a)(5) is the reinstatement provision. It permits the government to reinstate a prior removal order if the person reenters the United States. It also makes the individual ineligible for any relief under the immigration laws. Although Matter of Torres-Garcia (discussed below) involved a person who had previously been ordered removed, individuals who illegally reenter the United States, but who never were ordered removed or deported also face bars to adjustment of status. Section 212(a)(9)(C)(i)(I) makes inadmissible any person who was unlawfully present in the United States for more than one year, departs, and then illegally reenters or attempts to reenter the United States. In Torres- Garcia, the Board noted this related issue but did not address it because it had not been briefed by the parties. Matter of Torres-Garcia, 23 I&N Dec. at 870 n4. B. Circuit Court Decisions Addressing Adjustment for Individuals Who Illegally Reentered Prior to the BIA s decision in Matter of Torres-Garcia, three circuit courts the Fifth, Ninth and Tenth already had issued decisions interpreting the provisions described above and deciding when and if individuals who illegally reentered can apply for an I-212 waiver and adjustment of status. i. Previously Removed Individuals 2

3 The Ninth Circuit found that under 8 C.F.R (e) and (i), a person may cure a prior unlawful reentry if he or she receives permission to reapply that is an approval of an I-212. Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). The Perez-Gonzalez court pointed out that the regulations contain explicit language that the relief will be given retroactive effect, thus curing nunc pro tunc the unlawful reentry. The court found that such consent (the approved I- 212) would overcome a finding of inadmissibility under section 212(a)(9)(C) of the INA, even if ten years had not passed prior to the person seeking consent to reapply. Consequently, the Court ruled that the government may not reinstate a prior order of removal under section 241(a)(5) if a person has already applied for adjustment of status along with consent to reapply on form I-212 (at least, not until any such application is properly adjudicated and denied). Importantly, to avoid section 241(a)(5) s reinstatement bar, the I-212 application must have been filed before the government initiates reinstatement proceedings. Cf. Padilla v. Ashcroft, 334 F.3d 921 (9th Cir. 2003) (Note: this is a different case than the Tenth Circuit Padilla decision discussed below.). The Tenth Circuit rejected Perez Gonzalez s reasoning in Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004). The Tenth Circuit held that individuals are not permitted to submit an I- 212 after unlawfully reentering the United States. In a related case, Mortera Cruz v. Gonzales, 409 F.3d 246 (5th Cir. 2005) (discussed below), the Fifth Circuit indicated that it would follow Berrum-Garcia if presented with the same facts. ii. Individuals Who Departed Without a Removal Order Persons who have been unlawfully present in the United States for more than one year and unlawfully reenter are subject to the bar at section 212(a)(9)(C)(i)(I) of the Act. However, if they never have been ordered removed, they do not qualify to apply for consent to reapply (I- 212). Nonetheless, the Ninth Circuit expanded the reasoning of Perez-Gonzalez so that individuals who have never been ordered deported or removed may adjust their status if they are eligible for adjustment of status under section 245(i). 1 Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) (pet. for reh g filed May 24, 2006). The court held that section 245(i) trumps section 212(a)(9)(C)(i)(I). The Tenth Circuit reached the same result in Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir 2005) (pet. for reh g en banc filed Jan. 4, 2006). The circuit court distinguished Berrum on the ground that Petitioner Berrum had reentered the United States in defiance of a prior removal order and thus was subject to the reinstatement provision, section 241(a)(5), which bars relief. The Fifth Circuit, however, rejected the argument that individuals who attempt to reenter after having been physically present for more than one year are eligible to adjust under section 245(i). Mortera Cruz v. Gonzales, 409 F.3d 246 (5th Cir. 2005). 1 Although this cases involves adjustment of status under INA 245(i), the court s reasoning may help individuals who are eligible for VAWA adjustment. 3

4 **The government has petitioned for rehearing en banc in Padilla-Caldera in the Tenth Circuit and panel rehearing in Acosta in the Ninth Circuit.** C. Matter of Torres-Garcia On January 26, 2006, the BIA held that an individual who illegally reentered after previously being removed was inadmissible under section 212(a)(9)(C)(i)(II) and could not benefit from an I-212 waiver from within the United States. Matter of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006). Consequently, the Board found that the respondent was ineligible for adjustment of status. The Board rejected the reasoning of Perez-Gonzalez and held that the Ninth Circuit erred in relying on the regulatory language found at 8 C.F.R [W]e conclude that 8 C.F.R , which implements statutory provisions that were repealed by the IIRIRA, cannot reasonably be construed as implementing the provision for consent to reapply for admission at section 212(a)(9)(C)(ii). Torres-Garcia, 23 I. & N. Dec. at The BIA reasoned that the statutory language at section 212(a)(9)(C)(ii) of the INA makes clear that any consent to reapply may not be obtained until at least ten years after the date of departure from the United States. The Board thought it dispositive that the regulations at issue, 8 C.F.R , were issued prior to the 1996 changes and, in the Board s view, did not purport to implement anything in section 212(a)(9), which was introduced to the INA in 1996 by IRRIRA. Torres-Garcia, 23 I. & N. Dec. at Given that the regulatory language at 8 C.F.R did not appear to encompass the new statutory language implemented by IIRIRA, the Board rejected the explicit language of the regulation. III. Challenges to Torres-Garcia A. Legal Arguments Matter of Torres-Garcia is fundamentally flawed because its reasoning is based on the erroneous premise that the section 212 regulations are inapposite to determining the meaning of section 212(a)(9) of the INA or Congressional intent. As Congress recently said, the regulations remain intact and continue to govern the adjudication of consent for admission claims. On January 5, 2006, Congress enacted the VAWA 2005 reauthorization bill. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No , 119 Stat (VAWA 2005). Section 813(b) of VAWA 2005 states: 2 Despite the Board's rejection of Perez-Gonzalez, the holding of Perez-Gonzalez should continue to govern in the Ninth Circuit until overruled or modified by the circuit court. Mesa Verde Construction Co. v. No. Cal. District Council of Laborers, 861 F.2d 1124, 1136 (9th Cir. 1988) (en banc) (prior judicial construction of unambiguous statute controls over contrary agency interpretation). 4

5 813(b) DISCRETION TO CONSENT TO AN ALIEN S REAPPLICATION FOR ADMISSION. (1) IN GENERAL. The Secretary of Homeland Security, the Attorney General, and the Secretary of State shall continue to have discretion to consent to an alien s reapplication for admission after a previous order of removal, deportation, or exclusion. (2) SENSE OF CONGRESS. It is the sense of Congress that the officials described in paragraph (1) should particularly consider exercising this authority in cases under the Violence Against Women Act of 1994, cases involving nonimmigrants described in subparagraph (T) or (U) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), and relief under section 240A(b)(2) or 244(a)(3) of such Act (as in effect on March 31, 1997) pursuant to regulations under section of title 8, Code of Federal Regulations. 119 Stat. at Importantly, the Board in Matter of Torres-Garcia makes no mention of VAWA 2005, Congress most recent understanding of the INA. 3 As such, to the extent Matter of Torres- Garcia does not address nor conform to this statutory language, the Board s decision must be reconsidered and rejected. In challenging the BIA s holding in Matter of Torres-Garcia, advocates should focus on the language of section 813(b) of VAWA, including the following: The statute s command that various immigration officials shall continue to have authority to decide I-212 consent cases underscores the continuing vitality of 8 C.F.R It confirms that 8 C.F.R is not an outdated regulation that fails to adequately implement the changes brought about by IIRIRA. The central rationale of Matter of Torres-Garcia, i.e., that the regulations do not implement the consent to reapply for admission under section 212(a)(9)(C)(ii) of the INA, is completely undermined by section 813(b) of VAWA (Indeed, 8 C.F.R was modified on two separate occasions after IIRIRA in order to implement other statutory changes.) With VAWA 2005, the statute explicitly confirms that 8 C.F.R continues to be good law. The language specifies that not only the Secretaries of Homeland Security and State have authority to grant consent, but that the Attorney General also has authority to grant consent. This necessarily demonstrates that persons can obtain an I-212 if they are seeking admission by consular processing (Department of State), affirmative adjustment applications (Department of Homeland Security), and in removal proceedings (Attorney General). This provides support for the argument that consent may be obtained inside the 3 The Board issued Matter of Torres-Garcia on January 26, VAWA 2005 was enacted three weeks earlier on January 5, Given the proximity of the enactment Act and the issuance of the decision, it is unlikely that either party submitted briefs addressing VAWA

6 United States. Matter of Torres-Garcia, contrary to 8 C.F.R , indicates that consent must be obtained outside the country. The language states that immigration officials shall continue to have authority to grant such applications. This makes clear that such authority is nothing new, and thus, prior court decisions which did not recognize such authority were utilizing too narrow of an interpretation. Therefore, the adverse decisions in the Fifth and Tenth Circuits should not be afforded authoritative weight and may be reconsidered and overruled. B. Strategic Considerations i. Defensive Applications In defensive applications, those applications filed in removal proceedings, advocates should make all available arguments and preserve the record for appeal. As case law develops, these arguments may need to be modified. If you have a case which raises these legal issues and is presently before the Board or a Circuit Court, please let us know by ing clearinghouse@ailf.org. If the client is in removal proceedings: Advocates should make all available arguments and preserve the record for appeal. Given that the BIA failed to address section 813(b) of VAWA 2005, the Board s decision in Matter of Torres-Garcia is vulnerable to attack. However, advocates should be aware that unless and until the BIA reconsiders and reverses its decision, most immigration judges and the BIA likely will follow Matter of Torres-Garcia. Individuals may need to prepare for challenging the Board s decision in a petition for review in the court appeals. If the client is in the court of appeals: The arguments described above may be presented directly to the court of appeals in a petition for review of the BIA s decision. Petitioners in the Fifth and Tenth circuits, where there is adverse caselaw, may ask the court to reconsider their decisions in light of VAWA Contact clearinghouse@ailf.org if you have such a case. ii. Affirmative Applications As this Practice Advisory suggests, this area of the law is fluid and evolving. Once the law has stabilized and the national organizations coordinating this effort have communicated with DHS about amending its policies to reflect Congressional intent, affirmative applications may be recommended. Attempting to file for I-212s before this area is settled may result in your client s swift removal. For those persons who are contemplating filing affirmative applications for adjustment of status along with applications for permission to reapply on I-212, it is important to note that the U.S. Supreme Court has heard arguments in a case challenging the retroactivity of the reinstatement provision at section 241(a)(5) of INA. Fernandez-Vargas v. Gonzales, Case No It is likely that the decision will have an impact on any analysis. The decision should be issued by 6

7 the end of June As a result, advocates should wait to determine the impact of such a decision. 7