NINTH CIRCUIT SAYS NO ADJUSTMENT IF ENTRY IS FRAUDULENT

By Robert L. Reeves and Nancy E. Miller

In a very disappointing decision, the Ninth Circuit Court of Appeals held this week that aliens who entered the United States fraudulently are not eligible to adjust their status under section 245(a) of the Immigration & Nationality Act. That is the section of law under which most people adjust status to that of green card holder. The court held that these immigrants are ineligible to adjust even if they qualify for a waiver of the misrepresentation.

Fraud is defined as a willful misrepresentation of a material fact in order to procure an immigration benefit.

The case is called Orozco v. Mukasey. Mr. Orozco entered the United States in 1996 using someone else’s green card. Although he married a United States citizen prior to the sunset of section 245(i) of the Act, she did not file a petition for him until after that section of law had expired. When he was placed in proceedings in 2005, Mr. Orozco claimed that he was eligible for adjustment because he had been inspected and admitted, albeit with a fraudulent document, and so he met the requirements of 245(a). The immigration judge, the BIA and now the Ninth Circuit said he was wrong.

Under 245(a), an alien can apply for adjustment of status to that of green card holder if he was inspected and admitted or paroled into the United States, is admissible for permanent residence and an immigrant visa is immediately available to him at the time of application. (Unless they are an immediate relative, he must also be in status at the time of application and not have violated his non-immigrant status). While the term “admitted” is not defined in section 245(a), it is defined elsewhere in the Act as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” After concluding that 245(a) requires a lawful entry, the court stated that a fraudulent entry is not lawful. The court pointed out that “it is a federal crime for an individual knowingly and willfully to make any materially false, fictitious or fraudulent statement or representation or make or use any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry”. The court then held that an entry can not be criminal and lawful at the same time.

Orozco had said that he had been inspected and admitted as those terms were applied in a BIA case called Matter of Areguillin. The court disagreed with that argument. Areguillin had said that an alien who presents himself for inspection and makes no knowing false claim to citizenship applies for inspection and admission. It further said that admission occurs when the inspecting officer permits the alien to pass through the port of entry. The Orozco court said that the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) superceded Areguillin. According to the Ninth Circuit, prior to IIRIRA, the Act did not define admission and did not specify whether entry needed to be lawful. However, in IIRIRA, Congress defined admission as the lawful entry into the United States. The logical sequence as applied in Orozco is that the entry needs to be lawful, a fraudulent entry is a criminal entry, a criminal entry can not be lawful, therefore, a fraudulent entry is not lawful.

Orozco had claimed that the misrepresentation waiver under 212(i) of the Act would solve his inadmissibility problem. The court disagreed. While the court conceded that he might be eligible for the waiver of the ground of inadmissibility caused by the misrepresentation (because he does have a USC spouse and she might be able to show extreme hardship to herself if he had to leave the U.S.), it held that such waiver does not cure the fact that he was not admitted and so did not qualify for adjustment of status under 245(a).

It would appear that aliens who are 245(i) grandfathered (those who either had approvable-when-filed family or employment-based petitions filed for them prior to January 14, 1998 or who were physically present in the United States on December 21, 2000 and had approvable-when-filed family or employment-based petitions filed for them prior to April 30, 2001) may be still able to adjust even if they entered fraudulently provided they can qualify for the misrepresentation waiver.

This is a drastic change in law. Those who entered fraudulently and already have adjustment cases pending with either CIS or immigration court should contact their immigration attorneys immediately. Those who entered with any misrepresentation and are considering filing for any benefits should make sure they contact a knowledgeable immigration attorney before they do anything else.