Ninth Circuit Finds Adjustment Unavailable to Persons Who Enter the U.S. by Fraudulent Means

Orozco v. Mukasey, (9th Cir. Mar. 25, 2008).

A person who obtains entry into the United States by fraudulent means is statutorily ineligible for adjustment of status under INA §245(a).

On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status under INA §245(a) and a waiver of inadmissibility under INA §212(i). The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry. The BIA affirmed, citing Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).

Under INA §245(a), the status of an alien who was inspected and admitted or paroled into the U.S., may be adjusted to that of a lawful permanent resident in the discretion of the Attorney General if (1) the alien submits an application; (2) the alien is eligible to receive an immigrant visa and is otherwise admissible to the U.S.; and (3) an immigrant visa is immediately available. The term "admitted" is defined as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA §101(a)(13)(A) (emphasis added). The court found the statutory language unambiguous - in order to be eligible for adjustment of status under INA §245(a), an applicant's entry into the U.S. must be lawful. See also Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004) (INA §101(a)(13)(A) "leaves no room for doubt, unambiguously defining admission as the lawful entry of the alien into the United States"). Moreover, the court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i).

The petition for review was denied.