In a new precedential decision, Matter of Chavez Alvarez, the Board considers whether an immigrant who was not formally “admitted” when he first entered but then adjusted his status to become a permanent resident could be found removable under INA 237(a)(2)(A)(iii).
The problem is that the plain language of INA 237(a)(2)(A)(iii) requires commission of a certain crime after the immigrant has been “admitted.” So how can this ground of removability apply when an immigrant originally entered without being formally “admitted”?
The Board concluded in Matter of Chavez Alvarez, as it has in a number of past decisions, that adjustment of status is itself an admission, even if the person “has never been ‘admitted’ within the meaning of section 101(a)(13)(A) of the Act.” So you can be admitted without being admitted? Why the word play?
Unfortunately, the Board’s explanation seems to reveal this has more to do with the result the Board wants to reach and not so much with how the law should be applied.
First, the Board acknowledged that “this position has not generally been well received by the courts of appeals.” However, the Board says it believes it to be significant that “in only one case has the lack of acceptance been in the context of an alien’s removability under section 237(a) of the Act, rather than eligibility for relief from removal.”
The Board doesn’t say why on earth that would matter. Either adjustment of status is an admission or it’s not an admission. The Board bases its decision on its view that it would be “absurd to find that an alien who adjusted status within the United States and was thereafter convicted of an aggravated felony was not removable because his adjustment was not an ‘admission’ under the literal definition of that term in section 101(a)(13)(A) of the Act.”
That wouldn’t be the first time someone has called the immigration statute absurd. But that reality doesn’t give the BIA the power to change the statute itself, or to pretend the statute says something it doesn’t.
The words of the statute should be applied based on their plain meaning, not on the result the agency is hoping to achieve. And if the statute isn’t sufficient, it should be changed by Congress, not explained away by the Executive.