In a precedent decision on March 27, 2014, the Board has held in Matter of C-J-H- that a person whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012). The three-member decision was written by Board Member Garry Malphrus.
A person can get asylum even if they were not formally admitted. When an Ashlee adjusts his status, he becomes a permanent resident, but he doesn’t leave and get re-admitted. So when that person thereafter commits a crime that makes him removable, some have tried to use the adjustment of status statute for Ashlee’s as a cure, arguing that if he can adjust his status again, he won’t be removable any longer.
The issue turns on whether an immigrant who has adjusted his status has been “admitted.”
Although the holding on whether 209(b) allows re-adjustment of status is not controversial (the Board says it doesn’t), commentary from the Board about whether adjustment of status is an “admission” offers a telling contradiction with dicta from the Board’s recent decision in Matter of Chavez Alvarez, 26 I&N Dec. 274 (BIA 2014).
As we wrote at the time Matter of Chavez-Alvarez was published, the Board there openly acknowledged that the Circuit Courts had disagreed with the BIA’s view that adjustment of status is an “admission.”
However, in Matter of Chavez-Alvarez, the Board justified its position that adjustment is an “admission” by pointing out that of all the Circuit Court decisions that have rejected the Board’s view “only one” was “in the context of an alien’s removability under section 237(a) of the Act, rather than eligibility for relief from removal.” And the Board said that at least in the context of removability, as compared to eligibility for removal, it would be “absurd” if adjustment of status were not considered an admission.
Matter of C-J-H- provides the perfect counter-point. Less than a month after Matter of Chavez-Alvarez, the Board has published a decision reaffirming its view that even in the context of eligibility for relief (adjustment of status), the Board believes adjustment of status is an admission. Id. p. 287 (“The respondent does not dispute that he was ‘admitted’ to the United States when he adjusted his status to that of a lawful permanent resident in 2007.”).
This calls into question the limitation announced in Matter of Chavez-Alvarez. The Board there said that while courts had disagreed with its view on “admission,” only one case was about removability (which was the issue in Chavez). Well, here the Board is back to holding that adjustment is an “admission” even outside the context removability.