In a published decision on December 6, the BIA held that an immigrant who adjusts her status to permanent residence under the Cuban Adjustment Act has been “admitted” to the United States. Matter of Javier Jesus ESPINOSA GUILLOT, 25 I&N Dec. 653 (BIA 2011).  That doesn’t sound like a controversial result, but it makes little sense.

The confusion arises from two competing definitions.  The term “admitted” is defined by statute to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA § 101(a)(13)(A). The term “lawfully admitted for permanent residence” is defined as “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.” INA § 101(a)(20). Cubans who are “paroled” into the United States can adjust their status to permanent residence under the Cuban Adjustment Act. But “parole” is not an admission. INA 101(a)(13)(B).
Of course, none of this makes any sense. How can a Cuban who was paroled into the United States (not admitted) and then had their status adjusted to permanent residence be considered to have been admitted? When did the admission occur? “Admitted” and “lawfully admitted for permanent residence,” remember, have been defined by Congress to mean two different things. The Eleventh Circuit held in Lanier v. U.S. Attorney General, 631 F.3d 1363, 1366 (11th Cir. 2011) that the term “‘admitted’…does not encompass a post-entry adjustment of status.”

In Matter of Alyazji, 25 I&N Dec. 397, 399 (BIA 2011), the BIA explained that “adjustment of status” must mean “admission” or else the results would be absurd. It invoked that argument again in this case.  But the BIA is not in the business of deciding whether the results of Congress’s decisions would be absurd – it is tasked with applying the law.  If the current immigration law is absurd (and, for other reasons, we would agree that it is), Congress should change the law.  The agency cannot create solutions to textual problems by pretending the Statute says something other than what it says.