(B)  Adjustment of Status.  Some persons who are eligible to immigrate immediately through a family or employment visa can “adjust status” to lawful permanent residency at an immigration office in the United States.  Those who are not permitted to adjust status in the U.S. can proceed to consular processing abroad.  See § 24.2, infra.  Being deportable under the domestic violence ground is not an automatic bar to adjustment of status or consular processing, because there is no per se ground of inadmissibility relating to domestic violence.  If the conviction also fits within the crime of moral turpitude ground of inadmissibility, it may as such pose a barrier to adjustment, see § 22.6(B), supra, but the mere fact, standing alone, that it is a domestic violence conviction does not trigger inadmissibility.

 

The BIA in Matter of Rainford held that a noncitizen who is deportable but not inadmissible can apply for adjustment of status if s/he is otherwise eligible.  If adjustment is granted the person will no longer be deportable based on the conviction. [34]  In addition, if the person is deportable and also inadmissible under a ground that can be waived (i.e., a moral turpitude ground that can be waived under INA § 212(h)), a waiver application can be submitted with the adjustment application.[35]

[34] Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).  Rainford was published before the domestic violence ground was created in 1996.  It concerned the firearms ground of deportability which, like the domestic violence ground, has no corresponding ground of inadmissibility.  Before Rainford, the BIA had held that noncitizens deportable for a firearms conviction were not eligible to adjust status.  Under the so-called “doctrine of futility,” the BIA reasoned that even though these persons are not inadmissible and therefore should be allowed to immigrate, the fact that they are deportable and could be immediately deported after adjustment meant that it was pointless to do so.  See, e.g., Matter of V, I. & N. Dec. 293 (BIA 1942) (doctrine of futility applies); cf. Matter of Sanchez, 16 I. & N. Dec. 363 (BIA 1979).  Essentially, the BIA decided to de facto to exclude such people from immigrating, even though there is no “firearms” ground of inadmissibility.  The BIA withdrew from that position in Rainford.

[35] See Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (a person deportable under the firearms ground and inadmissible for a drug offense can apply for adjustment under Matter of Rainford and can file a waiver under former INA § 212(c) to waive the drug offense).   Likewise adjustment should be permitted in conjunction with a waiver of inadmissibility for moral turpitude, prostitution, etc. under INA § 212(h), 8 U.S.C. § 1182(h).  Special restrictions apply to permanent residents.  Again, while this is a firearms case, the firearms and domestic violence grounds of deportability should be treated the same, as both are deportability grounds without an analogous ground of inadmissibility.

Other

DOMESTIC VIOLENCE - IMMIGRATION EFFECTS - BAR TO NON-LPR CANCELLATION
Brady, "Defense Strategies: Matter of Almanza Arenas" at www.ilrc.org/criminal.php or in July 2009 Benders Immigration Bulletin.