Aggravated Felonies

 

Since an aggravated felony conviction does not constitute a ground of inadmissibility, it does not directly bar a noncitizen from obtaining lawful permanent resident status through “adjustment of status.”  This type of conviction, however, will often also fit within a different ground of inadmissibility and thereby bar a noncitizen from adjusting status.  For example, a sexual abuse of a minor conviction does not bar inadmissibility because it is an aggravated felony, which does not trigger inadmissibility, but because the conviction is also a crime of moral turpitude, which does.  If the aggravated felony conviction does not make the person inadmissible under any other ground of inadmissibility, or the if crime of moral turpitude ground of inadmissibility falls within the petty offense exception,[9] or is waived, the noncitizen is eligible to apply for adjustment of status even though the offense is an aggravated felony. 

 

Adjustment of status is the process by which a person who is admissible may obtain legal permanent resident status through a visa petition, usually filed by a U.S. citizen or lawful permanent resident relative, or an employer, without having to travel outside the United States.[10]  It is possible to obtain lawful permanent resident status by travelling outside the United States through “consular processing.”  See § 2.7, infra.  Immediate relatives can immigrate rapidly, since they may file the immigrant petition and the adjustment of status application simultaneously.[11]  Those subject to the preference quota system[12] may face a wait of months or years before being able to immigrate, with their place in line determined by the date on which they first filed their application with the INS.[13] 

It is also possible for an eligible legal permanent resident (e.g., one who has a U.S. citizen spouse) to “re-immigrate” by filing an application for adjustment of status in removal proceedings as a defense to deportation.[14]  If granted, the renewed adjustment of status will be a complete defense to removal.[15] 

 

Prior to 1997, noncitizens in exclusion proceedings were allowed to apply for adjustment of status before an Immigration Judge.[16]  However, in 1997, the Attorney General published a new regulation that barred this practice for noncitizens charged with a ground of inadmissibility (so-called “arriving aliens”[17]).[18]  Recently, however, the First and Third Circuits have held that this regulation is invalid, because it is ultra vires to the statute.[19] The Ninth Circuit appears to agree, at least as applied to people making an initial application to adjust.[20]  Although the Eighth Circuit has expressly disagreed with the First Circuit on this point,[21] other courts may choose to follow the reasoning of the First.  The BIA has itself suggested that certain “arriving aliens” may be eligible to adjust status despite the regulation.[22] 

 

In some circumstances, noncitizens who entered the United States illegally, and had valid visa petitions filed on their behalf prior to April 30, 2001, may be able to adjust status to a lawful permanent resident.[23]  However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status.[24]  Nor, generally, is a noncitizen who has been in the United States illegally for over one year, and has multiple illegal re-entries.[25]  A pending application for adjustment of status does not itself confer any legal status.[26]

 

While adjustment of status is not per se precluded for someone even with a serious criminal record,[27] a person who falls within a ground of inadmissibility cannot obtain adjustment of status unless a waiver is granted.[28]  Waivers of inadmissibility that may be used in conjunction with an application for adjustment of status include waivers under INA § § 212(d)(11) (alien smugglers), 212(h) (certain criminal grounds), 212(i) (false statements), and former 212(c).  See § § 2.44-2.46, infra.[29]

 

            Once a noncitizen has been deported after suffering an aggravated felony conviction, s/he is permanently inadmissible, and ineligible to return to the United States, although a waiver of this ground of inadmissibility is available in the Attorney General’s discretion.  See § 2.18, infra.

[9] INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).

[10] INA § 245, 8 U.S.C. § 1255; 8 C.F.R. § § 245.1-245.22, 1245.1-1245.22.

[11] 8 C.F.R. § § 245.2(a)(1), (2), 1245.2(a)(1), (2).  A person is classified as an immediate relative when s/he is the spouse, parent (of a child over 21), or unmarried child (under 21 years of age) of a U.S. citizen.  See INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i).

[12] A person is classified as a preference relative if s/he is the single son or daughter (over 21) of a U.S. citizen (1st Preference); spouse or unmarried child (under 21) of a lawful permanent resident (2A Preference); unmarried son or daughter (over 21) of a lawful permanent resident (2B Preference); married son or daughter of a U.S. citizen (3d Preference); or brother or sister of an adult U.S. citizen (4th Preference). INA § 203(a), 8 U.S.C. § 1153(a).  The children of preference relatives may obtain derivative status upon adjustment of their parents.  INA § 203(d), 8 U.S.C. § 1153(d).  The preferences for employment-based immigrant visas are controlled by INA § 203(b), 8 U.S.C. § 1153(b).  

[13] For a recorded message giving the priority dates and preferences for relative and employment-based immigrant visas, call the State Department at (202) 663-1514.  This information is also contained in the State Department “Visa Bulletin” which can be viewed on-line at http://travel.state.gov (select the Visa section, which contains the Visa Bulletin).

[14] Applications for adjustment by permanent residents are legally permitted.  See, e.g., Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993); Matter of Parodi, 17 I. & N. Dec. 608, 611 (BIA 1980); Matter of Loo, 15 I. & N. Dec. 307 (BIA 1975).

[15] Family immigration was changed profoundly by the passage of IIRAIRA, which created new grounds of inadmissibility based on unlawful presence under INA § 212(a)(9), 8 U.S.C. § 1182(a)(9).  These are discussed in more detail in general immigration texts.  To summarize, a person who has been in unlawful status since April 1, 1997 for 180 days to one year, leaves the country, and then applies to return, will be held inadmissible for three years from the time of departure.  If the person has been in unlawful status for a year or more since April 1, 1997, or if the person is deported or removed, s/he will be held inadmissible for ten years.  A discretionary waiver based on hardship to certain permanent resident or citizen family members is available.  INA § 212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).  A person who has been unlawfully in the U.S. for one year, or who has been deported or removed, who then leaves and attempts to re-enter unlawfully, is permanently inadmissible.  A discretionary waiver can be applied for beginning ten years after the departure.  INA § 212(a)(9)(C), 8 U.S.C. § 1182(a)(9)(C). 

[16] Matter of C.H., 9 I. & N. Dec. 265 (Ass’t Comm’r 1961) (noncitizen in exclusion proceedings eligible to apply for adjustment of status if s/he is otherwise qualified).

[17] 8 C.F.R. § 1101.1(q).

[18] 8 C.F.R. § 1245.1(c)(8); 8 C.F.R. 245.1(c)(8) (arriving aliens can adjust before DD only if they have not currently or formerly been put in removal proceedings). See Government Response to Comments, “Implementing Certain Sections of the 1996 Immigration Reform Act (Mar. 6, 1997),” 62 Fed. Reg., No. 44, pages 10311-10395; Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. Aug. 10, 2004) (noncitizen in exclusion proceedings has no right to adjust status before the IJ; noncitizen must instead apply to District Director).

[19] Zheng v. Gonzalez, 422 F.3d 98 (3d Cir. Sep 8, 2005) (regulation at 8 C.F.R. § 1245.1(c)(8), barring adjustment of status for “arriving aliens,” is ultra vires to the INA); Succar v. Ashcroft, 394 F.3d 8 (1st Cir. Jan. 5, 2005) (8 C.F.R. § 245.1(c)(8), which bars noncitizens who have been paroled into the United States and placed in removal proceedings from applying for adjustment of status, held invalid as inconsistent with 8 U.S.C. § 1255(a)).

[20] Compare Bona v. Gonzalez, 425 F.3d 663 (9th Cir. Sept. 30, 2005) (DHS regulation precluding “arriving aliens” from seeking adjustment of status in removal proceedings is ultra vires to the INA), with Jiang v. Gonzales, 425 F.3d 649 (9th Cir. Sept. 23, 2005) (noncitizen ineligible for adjustment of status as “arriving alien”).  Bona may be distinguishable from Jiang on the basis that Jiang had previously applied for adjustment of status to the district director and had been denied, where Bona had not previously made an application.

[21] Mouelle v. Gonzalez, 416 F.3d 923 (8th Cir. July 29, 2005).

[22] Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001) (suggesting argument that certain arriving noncitizens may adjust status under INA § 245(i), 8 U.S.C. § 1255(i)).  See also Mary Kenney, AILF Practice Advisory, Adjustment of Status for “Arriving Aliens” In Removal Proceedings:  Strategy Decisions to Challenge 8 C.F.R. § 245.1(c)(8), Oct. 18, 2005, available at http://www.ailf.org/lac/lac_pa_101805.pdf.

[23] INA § 245(i), 8 U.S.C. § 1255(i).

[24] Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. Jan. 12, 2005) (the reinstatement statute, 8 U.S.C. § 1231(a)(5)(1), provides that a prior order of removal may be reinstated against a noncitizen who has illegally re-entered the United States, and (2) bars him or her from applying for any form of “relief” under Chapter 12 of U.S.C. Title 8, which includes adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i)); Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. Nov. 23, 2004) (noncitizen who illegally re-entered United States after removal is barred from applying for adjustment of status when DHS has reinstated original order or removal under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), regardless of whether application was filed before or after prior order has been reinstated).

[25] Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir. May 9, 2005) (INA § 245(i), 8 U.S.C. § 1255(i) does not apply to noncitizens inadmissible to the United States under INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), which makes permanently inadmissible noncitizens who enter the United States illegally after having previously been present in the United States for over one year); accord, Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004); cf. Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004). But see Acosta v. Gonzales, 439 F.3d 550, 556 n.7 (9th Cir. Feb. 23, 2006) (noncitizen inadmissible for accruing more than one year of unlawful presence is eligible for penalty-fee adjustment of status: “We therefore reject the Government’s attempted reliance on 8 C.F.R. § 245.10(m) which states that an alien eligible for penalty-fee adjustment of status continues to accrue unlawful presence under § 1182(a)(9)(C). We need not defer to this agency regulation because it is not based on a permissible construction of the statute. Akhtar, 384 F.3d at 1198.”); Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. Oct. 18, 2005) (LIFE Act applies to status violators who have been in the United States for an aggregate period of over one year); Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).

[26] United States v. Lucio, 428 F.3d 519 (5th Cir. Oct. 12, 2005) (conviction under 18 U.S.C. § 922(g)(5)(A) [possession of firearm by undocumented noncitizen] upheld since undocumented noncitizen’s immigration status remains unlawful during the pendency of an application to adjust status; mere fact that he has received permission to work in the county does not alter the initial unlawfulness of his immigration status).

[27] See, e.g., Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all factors must be considered; after conviction of fraudulent hostage scheme, discretionary denial of adjustment reversed and remanded based on BIA’s failure to consider rehabilitation).

[28] Adjustment of status occurs on date full adjustment is granted, rather than on the date the noncitizen makes application for adjustment of status.  Therefore, a noncitizen granted temporary resident status, see § § 2.21-2.22, infra, must seek a waiver for any convictions committed after becoming a TPR.  Perez-Enriquez v, Ashcroft, 383 F.3d 994 (9th Cir. Sept. 9, 2004). 

[29] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA 2005) (adjustment of status in combination with a waiver under INA § 212(c), 8 U.S.C. § 1182(c) permitted even where the offense waived is also an aggravated felony); Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (adjustment of status in combination with a waiver under INA § 212(h), 8 U.S.C. § 1182(h) or INA § 212(c), 8 U.S.C. § 1182(c) is available as a defense to deportation).