JoseW. Vega Jose W. Vega Law Firm, PLLC 440 Louisiana St., Ste. 500 Houston, TX 77002

Name: CRUZ, JOSE ARMANDO Riders: 087-241-022

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

A 087-241-021

Date of this notice: 4/9/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Wendtland, Linda S. Greer, Anne J. Pauley, Roger

Sincerely,

DCrutL c tVVtJ

Donna Carr Chief Clerk

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Jose Armando Cruz, A087 241 021 (BIA Apr. 9, 2014)

U.S. Department ot:Justice Executiye Offic� for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

Files: A087 241 021 - Houston, TX A087 241 022

In re: JOSE ARMANDO CRUZ EVELIA DON GONZALEZ CRUZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS: Jose W. Vega, Esquire

ON BEHALF OF DHS: April Silva Assistant Chief Counsel

CHARGE:

Date:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1l82(a)(6)(A)(i)] -

APR - 9 2014

Present without being admitted or paroled (both respondents-conceded)

APPLICATION: Adjustment of status

The Department of Homeland Security (OHS) appeals from the Immigration Judge's October 12, 2011, decision granting the respondents adjustment of status under section 245(i) of the Immigration and Nationality Act (Act), 8 U .S.C. § l 255(i), based on an approved Alien Relative Petition (Form I-130) filed on the lead respondent's behalf by his United States citizen sister.1 The DHS's request for oral argument is denied. See 8 C.F.R. § 1003.l(e)(7). The agency's appeal will be dismissed, and the record will be remanded for security and background investigations or examinations.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R. § 1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-, 23 l&N Dec. 462, 465-66 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues de novo. See 8 C.F.R. § 1003.l(d)(3){ii).

The following facts are not in dispute. The lead respondent, a native and citizen of Mexico, first arrived in the United States in 1992 (l.J. at 2; Tr. at 60). Thereafter, in October 1997, he was arrested by United States immigration authorities in conjunction with a worksite enforcement action, and as a result, he returned to Mexico the same month (l.J. at 2; Tr. at 60-61;

1 Jose Armando Cruz (A 087 241 021) will be referred to hereinafter as the lead respondent. The rider respondent, Evelia Don Gonzalez Cruz (A 087 241 022), is married to Mr. Cruz (l.J. at 2; Tr. at 63, 66; Exhs. 2E, 4E).

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Exh. 6). He then returned to the United States illegally in May 1999 and never departed from the United States thereafter (l.J. at 2; Tr. at 62).

In granting the respondents' adjustment applications, the Immigration Judge did not identify any statutory grounds of inadmissibility; nor did he find any basis for denying relief in the exercise of discretion (1.J. at 3-5). On appeal, the DHS does not challenge the respondents' general ability to seek adjustment of status under section 245(i) of the Act or identify any error in the Immigration Judge's discretionary determination. Instead, the agency only contends that the Immigration Judge erred in finding the respondents statutorily eligible to adjust their statuses as the lead respondent allegedly is inadmissible under section 212 of the Act, 8 U.S.C. § 1182 (DHS Brief at 3). See Matter of Naulu, 19 l&N Dec. 351 (BIA 1986) (requiring the principal adjustment applicant to adjust before any derivative beneficiaries are able to derive a benefit under the visa petition). Specifically, the agency contends that the lead respondent triggered section 212(a)(9)(B)(i)(I) of the Act by virtue of the fact that he accrued more than 180 days, but less than 1 year, of unlawful presence in the United States between the provision's effective date of April I, 1997, and his October 1997 departure, and then he again sought admission in 1999 when he returned to the United States without first being inspected and admitted or paroled (DHS Brief at 5, 9-10).2

We agree with the Immigration Judge's conclusion that the lead respondent is not now inadmissible under section 212(a)(9)(B) of the Act, as he is now applying to be assimilated to the position of one seeking admission through his adjustment application, and this application is being pursued more than 3 years after he last departed from the United States (l.J. at 3-5). See, e.g., Matter of Alyazji, 25 I&N Dec. 397, 399-404 (BIA 2011) (explaining that we treat certain aliens as assimilated to the position of one seeking admission or having been admitted where they are pursuing or have been granted adjustment of status rather than being admitted at a port of entry with an immigrant visa); see also Matter of Alarcon, 20 I&N Dec. 557 {BIA 1992). Were we to adopt the position set forth by the DHS, we would transform the ground of inadmissibility at section 212(a)(9)(B)(i)(I) of the Act into a permanent ground of inadmissibility for all of the lead respondent's applications for admission after the expiration of the 3-year period set forth in the statute (DHS Brief at 9-10). Instead, for the reasons outlined below, we conclude that, although the statutory language at section 212(a)(9)(B) is ambiguous, the DHS position is not consistent with our understanding of the Congressional intent for this provision as ascertained through a review of the statutory structure, legislative history, and pertinent interpreting authorities.

First, section 212(a)(9)(B) of the Act has always been understood in our precedents as creating temporary 3- and 10-year bars (in sections 212(a)(9)(B)(i)(I) and (II) of the Act, respectively) to an alien's admissibility following his departure from the United States after

2 The DHS does not contend that the lead respondent comes within section 212(a)(9)(C)(i)(I) of the Act, creating permanent inadmissibility for an alien who has been unlawfully present in the United States for an aggregate period of more than I year, and who then reenters or attempts to reenter the United States without being admitted.

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having been unlawfully present for (respectively) more than 180 days, or 1 year or more. See, e.g., Matter of Lemus, 24 I&N Dec. 373, 377 (BIA 2007) (citing with approval Cervantes­Ascencio v. INS, 326 F.3d 83, 85-86 (2d Cir. 2003), in which the United States Court of Appeals for the Second Circuit construed section 212(a)(9)(B)(i)(II) of the Act as imposing a "IO-year bar to readmission" for certain aliens), pet. for review granted on other grounds, Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009), on remand, Matter of Lemus, 25 I&N Dec. 734 (BIA 2012); Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006) (characterizing section 212(a)(9)(B) of the Act as "providing for the temporary inadmissibility of aliens who have been unlawfully present in the United States for certain continuous periods and who are seeking admission after having departed," in contrast with the "permanent inadmissibility" that was created by section 212(a)(9)(C) of the Act for aliens who enter or attempt to reenter unlawfully after previous immigration violations (emphasis added)).

Likewise, Congress acknowledged in the iegislative history for section 212(a)(9)(B) of the Act that "[a]n alien unlawfully present in the United States for a period of more than 180 days but less than 1 year who voluntarily departed the United States is barred from admission for 3 years." See id. at 910 (quoting the Conference Committee Report for the Illegal Immigration Reform and Immigrant Responsibility Act, H.R. Rep. No. I 04-828, at 207-08 (1996)); see also Memorandum, D. Neufeld, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Section 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(/) of the Act (May 6, 2009) at 2 (discussing "[t]he three- and ten-year bars to admissibility of section 212(a)(9)(B)(i) of the Act and the permanent bar to admissibility of section 212(a)(9)(C)(i)(I) [of the Act]"). Based on the foregoing, we conclude that Congress intended to penalize an alien's unlawful presence by, upon his subsequent departure, temporarily prohibiting his readmission into the United States, unless a waiver supported by a showing of extreme hardship to a qualifying relative is obtained under section 212(a)(9)(B)(v) of the Act. However, we do not construe these comments as reflecting any intent to create a permanent bar to an alien's readmission where the alien did not remain abroad or successfully obtain a waiver of inadmissibility during the time period in which the bar applies. It is the alien's unlawful presence followed by his departure from the United States that gives rise to the (temporary) ground of inadmissibility and not the very act of returning to the United States during the period in which the bar applies.

Second, we note parallels in the language of section 212(a)(9)(B) of the Act with the longstanding application of section 212(a)(9)(A) of the Act, which similarly provides for inadmissibility for certain aliens who "seek ... admission" within specified time periods after a pertinent event. In the case of section 212(a)(9)(A) of the Act, the pertinent event is a previous removal. We are aware of no case involving a previously removed alien who sought readmission during the ''time bar" period (and who did not come within the exception for aliens who have obtained the Attorney General's consent to reapply for admission) where that alien was deemed permanently inadmissible under section 212(a)(9)(A) of the Act. by this Board or a court of competent jurisdiction. Indeed, as with section 212(a)(9)(B) of the Act itself, our precedent strongly suggests the contrary. See Matter of Torres-Garcia, 23 I&N Dec. 866, 872-73 (BIA 2006) (stating that "[a]:fter the relevant inadmissibility period [under section 212(a)(9)(A)(ii) of the Act] has elapsed, an alien's prior removal no longer stands as a bar to reapplication for admission," and that "[s]ection 212(a)(9)(C)(i) [of the Act] differs significantly from section 212(a)(9)(A)(ii) [of the Act] in that it incorporates no temporal limitations on inadmissibility ... "). We do not see how section 212(a)(9)(B) of the Act, presenting very

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similar "seeks admission" language to that used in section 212(a)(9)(A) of the Act, can be meaningfully distinguished. 3

Third, a "plain language" reading of the statute does not support the DHS's proffered construction. We agree with the DHS that the lead respondent "sought admission" when he reentered without inspection in 1999 (DHS Brief at 5). See section 235(a)(l) of the Act, 8 U.S.C. § 1225(a)(l) (an alien who is present in the United States without having been admitted shall be deemed an applicant for admission). Nevertheless, we disagree with the agency's assertion that this action renders the lead respondent permanently inadmissible under section 212(a)(9)(B) of the Act, even after the 3-year period referenced by that provision has expired. Specifically, if section 212(a)(9)(B) of the Act created inadmissibility for an alien who seeks or has sought admission to the United States (similar to section 212(a)(6)(C)(i) of the Act's provision for the inadmissibility of an alien who "seeks" or "has sought" to procure admission or another immigration benefit by fraud or willful misrepresentation of a material fact), we might construe the statute as creating permanent rather than temporary inadmissibility. However, the statute simply states that an alien is inadmissible if he "seeks" admission within the pertinent period,

· which is ambiguous language.

In view of that ambiguous language, together with the light cast on the meaning of this language by the authorities and legislative history cited herein, we conclude that section 212(a)(9)(B) of the Act creates a temporary bar to admissibility. Although the lead respondent would have been inadmissible under section 212(a)(9)(B) of the Act if he had applied for adjustment of status when he returned to the United States in 1999, which was within the applicable 3-year period, that temporary ground of inadmissibility has now expired. Thus, in the absence of any other identified statutory bars to relief, the respondents are eligible for adjustment of status under section 245(i) of the Act. Moreover, because the Immigration Judge granted the respondents' applications and did not identify any negative discretionary basis for denying them, we conclude that, on this record, the respondents are deserving of adjustment of status to that of lawful permanent residents.

Accordingly, the following orders shall be entered.

ORDER: The DHS's appeal is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the DHS the opportunity to complete or update

3 Although a significant number of aliens who are found inadmissible under section 212(a)(9)(B) of the Act may qualify for a discretionary waiver under section 212(a)(9)(B)(v) of the Act, the fact remains that a waiver is unavailable if the alien does not have a United States citizen or lawful permanent resident spouse or parent who would suffer extreme hardship resulting from the refusal of the alien's admission.

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identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

r/)nA. J �ck11J / RTHEBOARD

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U. S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

File A 87 241 021 A 87 241 022

In the Ma tter of

JOSE ARMANDO CRUZ

Houston, Texa s

Da te: October 12, 2011

IN REMOVAL PROCEEDINGS EVELIA DON GONZALEZ CRUZ

) ) ) )

) Respondents

CHARGE:

APPLICATION:

APPEARANCES:

Section 212 (a ) (6) (A) (i) of the Immigra tion a nd Na tiona lity Act, a s a mended -.present without a dmission or pa role

Adjus tment of sta tus under Section 245(i) of the Immigra tion a nd Na tiona lity Act, a s a mended

ON BEHALF OF RESPONDENTS: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:

Jose W. Vega , Esquire 440 Louisia na Avenue Suite 500 Houston, Texa s 77002

April Silva , Esquire Assista nt Chief Counsel Houston, Texa s

ORAL DECISION OF THE IMMIGRATION JUDGE

The Government filed two Notices to Appea r da ted Ma rch

19, 2009. The Respondents a ppea red with counsel on October 1,

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2009, a dmitted the a llega tions on the Notices to Appea r a nd

conceded the remova l cha rges. The remova l cha rges a re not in

controversy.

The sole issue before this Court is the Respondents'

eligibility for relief from remova l.

FINDINGS OF FACT

The lea d Respondent, Jose Arma ndo Cruz, a nd his spouse,

a re deemed to be credible a s witnesses. They were responsive to

questions. The uncerta inty a bout da tes is a ttributed to the

pa ssa ge of time. Aside from tha t, both Respondents' testimony is

consistent a nd pla usible, a nd their ca ndor a nd demea nor wa rra nt

belief tha t the informa tion they provided is true.

The following findings of fa ct rela te to the

Respondents' relief a pplica tions.

The lea d Respondent first entered the United Sta tes some

time in 1992. He wa s a rrested a t a worksite during a n enforcement

a ction some time in October 1997. After a period of detention

la sting a number of hours, the Respondent wa s returned to Mexico

in the sa me month, October 1997. The lea d Respondent returned to

the United Sta tes illega lly in Ma y of 1999. Subsequent to tha t

a rriva l, the Respondent did not depa rt .

. Neither of the Respondents ha s ever been a rrested, other

than the lea d Respondent, by irmnigra tion a uthorities.

The Respondents a re ma rried to ea ch other, a nd they ha ve

two children born in the United Sta tes. The petitioner for the

A 87 241 021/A 87 241 022 2 October 12, 2011

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lea d Respondent is his U. S. citizen sister. His mother f iled a

visa petition ea rlier in 1994.

LAW AND ANALYSIS

An a pplica nt f or a djustment of sta tus under Section

245(i) of the Act must (1) be physica lly present in the United

Sta tes, (2) ha ve entered the United Sta tes without inspection, or

f a ll within the ca tegories of Aliens described under Section

245 (c) of the Act, (3) be eligible to receive a n immigra nt visa ,

a nd be a dmissible to the United Sta tes (not excluda ble under

Section 212(a ) of the Act), (4) pa y a required filing fee, (5)

ha ve a n immigra nt visa immedia tely a va ila ble, a nd (6) a n immigra nt

visa petition or la bor certif ica tion must ha ve been f iled on

beha lf of the a pplica nt on or bef ore April 30, 2001.

The pa rties a re in a greement tha t the Respondents a re

both eligible for a djustment of sta tus, except the Government

a sserts tha t the Respondent rema ins subject to exclusion under

Section 212 (a ) (9) (B) (i) of the Act, beca use he a ccumula ted

unla wf ul presence in the United Sta tes, a nd returned within either

ten yea rs or three yea rs of the a ccumula tion of this unla wful

presence.

The Respondent, for his pa rt, a rgues tha t, a fter he wa s

given some type of return to Mexico in October 1997, a lthough he

re-entered illega lly, he did not ma ke a ny subsequent depa rtures,

a nd he is now a pplying for la wful a dmission to the United Sta tes

more tha n three yea rs a f ter his depa rture in October 1997.

A 87 241 021/A 87 241 022 3 October 12, 2011

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Section 212(a) (9) (B) (i) of the Act provides an exclusion

ground that applies to any Alien who was unlawfully present in the

United States for a period of more than 180 days but less than a

year, and who seeks readmission within three years of the date of

the Alien's departure, or under a second paragraph, an Alien who

has been unlawfully in the United States for one year or more, and

who again seeks admission within ten years of the date of such

Alien's departure or removal from the United States.

It is well-settled in precedent Board decisions, with

some exceptions in the Fifth Circuit relating 212(h) waivers, that

an applicant for adjustment of status is assimilated to the status

of an applicant for entry. See, for example, Matter of Connelly,

19 I&N Dec. 156, 159 (BIA 1984), Matter of Rainford, 20 I&N Dec.

5 9 8 ( BIA 19 9 2 ) .

There is a Board decision that addresses the 212(9)

exclusion ground where the adjustment applicant applied for

adjustment within ten years of the applicant's departure from the

United States. This is distinct from the fact pattern in the

instant record, where the Respondent is clearly applying for

adjustment of status, that is, lawful admission to the United

States, more than ten years after his departure from the United

States. Regardless of which bar is considered, whether it be the

three-year bar or the ten-year bar, the Respondent is applying for

lawful admission outside of those time periods.

Since the Respondent is applying for admission more than

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,,.

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ten year� and more than three years after his last departure from

the United States, the bar under Section 212 (a) (9) (B) {i) does not

attach. Based on this understanding of the statute asserted as an

exclusion ground, the Respondents are both deemed to be eligible

for adjustment of status, that is, specifically, not subject to

exclusion under Section 212 (a) (9) (B) (i) of the Act, or any other

part of Section 212(a) (9).

The Respondents are deemed to be eligible for adjustment

of status as a matter of law. Also, since adjustment of status is

also an exercise of discretion, the Respondents, based on this

record, are deemed to be eligible for adjustment of status in the

exercise of discretion as well, since there is no adverse

information in this record other than the lead Respondent's and

the co-Respondent's illegally entries to the United States. This

is a negative factor; however, it is outweighed by two U. S.

citizen children, and the absence of any pattern of antisocial

behavior on the part of either Respondent.

In summary, the Respondents are eligible for adjustment

of status, both as a matter of law and in the exercise of

discretion, and the applications will be gr anted.

ORDER

IT IS HEREBY ORDERED that the Respondents are GRANTED

adjustment of status under Section 245 (i) of the Immigration and

Nationality Act, as amended.

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IT IS FURTHER ORDERED that the Government issue all

necessa ry documents to give effect to this Order.

WILLIAM K. ZIMMER Immigration Judge

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(

CERTIFICATE PAGE

I hereby certify that the attached proceeding before

WILLIAM K. ZIMMER, in the matter of:

JOSE ARMANDO CRUZ

A 87 241 021

EVELIA DON GONZALEZ CRUZ

A 87 241 022

Houston, Texas

was held as herein appears, and that this is the original

transcript thereof for the file of the Executive Office for

Immigration Review.

nad/seh

Nicola Delph, Transcriber

YORK STENOGRAPHIC SERVICES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077

December 6, 2011 Completion Date

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