Adjustment of status under INA § 245 is the act of becoming a permanent resident or gaining other status through processing at a DHS office inside the United States, as opposed to processing through a U.S. consulate abroad.  See § 2.2, supra.  It does not fit the statutory definition of admission,[108] which is a “lawful entry” into the United States, because there is no physical “entry” into the United States.  Counsel can argue under the plain language of the statute that adjustment does not equal an admission.[109]  If it is not an admission, the noncitizen cannot be removed for the grounds of deportation.[110]

 

            The BIA recognized that adjustment of status does not fit the definition of admission,[111] but held that it nevertheless would count adjustment to permanent residency as an admission for at least some purposes.[112]   Most commonly, a noncitizen who initially entered the United States without inspection will be considered “admitted” on the date his or her adjustment of status application is approved.[113]  On the other hand, adjustment of status has been held not to be an admission for purposes of the one-CMT conviction deportation ground.[114]

            Although a prior admission is normally required for adjustment of status, there are several exceptions, such as adjustment for illegal entrants with family in the United States,[115] adjustment under the former legalization provisions, and adjustment based on status such as asylee, special immigrant juvenile or VAWA.

 

[108] INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).

[109] For example, in the case of people who entered without inspection and then adjusted under INA § 245(i), 8 U.S.C. § 1255(i), this would lead to the conclusion that they had never been admitted at all and were subject only to the grounds of inadmissibility, not deportability.

[110] INA § 237(a), 8 U.S.C. § 1227(a).

[111] INA § 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A).

[112] Matter of Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999).  There the BIA considered whether the requirement in INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (the aggravated felony ground of deportation), that the offense be committed “after admission” includes noncitizens who entered the U.S. unlawfully and then adjusted status to permanent residency.  Because these people were never “lawfully admitted” to the U.S., arguably they could not have committed the offense “after admission.”  The Board did not find that adjustment of status to permanent residency meets the definition of admission found at INA § 101(a)(13), 8 U.S.C. § 1101(a)(13), which is a lawful entry into the U.S.  Instead it relied on the definition in INA § 101(a)(20), 8 U.S.C. § 1101(a)(20), that “lawfully admitted for permanent residence” means “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, such status not having changed.”  This definition encompasses permanent residency gained through adjustment or admission, and the Board found that this should suffice for the deportation ground requirement that the conviction occur “after admission.”  See also Matter of Connelly, 19 I. & N. Dec. 156 (BIA 1984) (adjustment of status is not an “entry”); Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001) (adjustment of status to lawful permanent resident constituted an “admission” for purposes of finding the immigrant deportable on account of an aggravated felony conviction after admission).

[113] Ocampo-Duran v. Ashcroft, supra; Perez-Enriquez v. Ashcroft, 383 F.3d 994 (9th Cir. Sept. 9, 2004) (adjustment of status occurs on date full adjustment is granted, rather than on date noncitizen makes application for adjustment of status under SAW and is granted temporary permanent resident status; therefore inadmissible offense committed while noncitizen was a TPR subjects noncitizen to removal under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as having been inadmissible at the time of adjustment of status).

[114] Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. July 1, 2005) (noncitizen held not deportable for commission of a crime involving moral turpitude over six years after admission into United States, since it was not within five years of that date, even though it had been committed within five years of date of adjustment of status), distinguishing Matter of Rosas-Ramirez, 22 I. & N. Dec. 616 (1999) (en banc).  But see Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).

[115] INA § 245(i), 8 U.S.C. § 1255(i); see Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001) (suggesting argument that certain arriving aliens may adjust status under INA § 245(i), 8 U.S.C. § 1255(i)).

BIA

DEPORTATION " CONVICTION AFTER ADMISSION " DEFINITION OF ADMISSION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (adjustment of status constitutes an admission for purposes of determining removability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony at any time after admission).

DEPORTATION " CONVICTION AFTER ADMISSION " DEFINITION OF ADMISSION
Matter of Chavez-Alvarez, 26 I. & N. Dec. 274 (BIA Mar. 14, 2014) (adjustment of status constitutes an admission for purposes of determining removability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony at any time after admission).

OVERVIEW " ADJUSTMENT AS ADMISSION " CUBAN REFUGEE ADJUSTMENT ACT
Matter of Espinosa-Guillot, 25 I&N Dec. 653 (BIA Dec. 6, 2011) (noncitizen who adjusted to LPR status through Cuban Refugee Adjustment Act has been admitted to the United States and is therefore subject to grounds of removal under INA 237).

Fifth Circuit

JUDICIAL REVIEW - RES JUDICATA
Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not bar DHS from initiating removal proceeding based upon the same convictions). http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf

NOTE: The court here engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit the Government from starting removal proceedings based upon convictions occurring prior to adjustment when the Government was aware of those convictions at the time of adjustment and either granted a waiver (Rafipour), or no waiver was needed since the convictions triggered deportation, but not inadmissibility (Rainford). The noncitizen in this case had 21 total convictions, and had been involved in litigating pro se for a number of years at all court levels.

Sixth Circuit

ADMISSION - ADJUSTMENT OF STATUS DOES NOT BEGIN A NEW FIVE-YEAR PERIOD
Zhang v. Mukasey, 509 F.3d 313 (6th Cir. Nov. 29, 2007) (adjustment of status does not constitute an "admission" for purposes of starting the five-year period within which a CMT must be committed to trigger deportation under INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a) (2)(A)(i)), agreeing with Shivaraman v. Ashcroft, 360 F.3d 1142, 1146 (9th Cir. 2004); Abdelqadar v. Gonzales, 413 F.3d 668, 673 (7th Cir. 2005); Aremu v. Dep't of Homeland Sec., 450 F.3d 578, 581 (4th Cir. 2006), vacating Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005), disagreeing with Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005).