Criminal Defense of Immigrants


§ 17.8 (C)

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(C)  Adjustment of Status as Relief from Removal.  Traditionally, a lawful permanent resident has been allowed to “re-adjust” (i.e., get a new green card) in removal proceedings as a defense to deportation.[71]  If granted, the renewed adjustment of status is considered a complete defense to removal.[72]  This is true even of offenses that technically triggered removal before the re-adjustment, but were not the actual basis for the finding of removability.[73]  The policy underlying this rule is that Congress contemplated that persons deported from the United States could be allowed to re-immigrate at a later date.[74] 


                The same rule should apply to a noncitizen who is technically deportable (and/or inadmissible), but subsequently adjusts status outside of removal proceedings (assuming full disclosure of criminal history, appropriate waivers granted, etc.).  Unfortunately, the Fifth Circuit appears to have held otherwise.[75]  The court found that an affirmative grant of adjustment of status before the former INS in non-adjudicative hearing, where noncitizen the disclosed all prior convictions, did not bar the DHS from initiating removal proceeding based upon the same convictions. The court engaged in no analysis of Matter of Rafipour[76], or Matter of Rainford[77], which specifically prohibited the government from starting removal proceedings based upon convictions occurring prior to adjustment where the government was aware of those convictions at the time of adjustment and either granted a waiver (Rafipour)[78], or no waiver was needed since the convictions triggered deportation, but not inadmissibility (Rainford).[79] The noncitizen in Andrade had 21 total convictions, and had been involved in litigating pro se for a number of years at all court levels.


[71] 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).

[72] Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992). 

[73] Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978) (re-adjustment); Matter of Sanchez, 16 I. & N. Dec. 363 (BIA 1977) (subsequent re-immigration).

[74] Matter of S, 7 I. & N. Dec. 536 (1957).  See also INA § 212(a)(9)(A)(i) (noncitizens ordered deported inadmissible for five years).

[75] Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006), cert. denied, 127 S.Ct. 973 (Mem) (Jan. 8, 2007).

[76] Matter of Rafipour, supra.

[77] Matter of Rainford, supra.

[78] Matter of Rafipour, supra.

[79] Matter of Rainford, supra.




Matter of Carrillo-Arrillo, 25 I. & N. Dec. 99 (BIA Oct. 21 2009) (pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, 1, the date at which a Cuban noncitizen was paroled in the United States counts as the date of "admission" as a lawful permanent resident; noncitizen who was paroled into the United States in 1999, but did not adjust status until 2001, was not deportable as a noncitizen who had committed a CMT within 5 years of admission based on offenses committed in 2004).