Criminal Defense of Immigrants

(E)  Illegal Entry.  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.[39]  However, a noncitizen subject to a reinstated order of removal is not eligible to adjust status.[40]  Nor, generally, is a noncitizen who has been in the United States illegally for over one year, and has multiple illegal re-entries.[41]  A pending application for adjustment of status does not itself confer any legal status.[42]

[39] INA § 245(i), 8 U.S.C. § 1255(i).  See AILF Legal Action Center Practice Advisory, Applying for Adjustment of Status After Reentering the United States Without Being Admitted: I-212s, 245(i) and VAWA 2005 (Updated Oct. 19, 2006).  http://www.ailf.org/lac/vawa_2005.pdf

[40] Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. Jan. 12, 2005) (the reinstatement statute, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), 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).  See also Lino v. Gonzales. 467 F.3d 1077 (7th Cir. Nov. 6, 2006) (INA § 241(a)(5), 8 U.S.C. § 1231(a)(5)) precludes a previously removed noncitizen who has since illegally re-entered the United States from adjusting status under INA § 245(i), 8 U.S.C. § 1255(i), and petitioner does not fall within any exception to this statute).

[41] 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 (9th Cir. 2006) (INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I) does not bar adjustment of status under INA § 245(i)); Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. Jun. 19, 2006) (INA § 245(i), 8 U.S.C. § 1255(i), allows certain persons to adjust status even if they are inadmissible under INA § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I) for having been unlawfully present in the United States for over one year).; 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), amended and superseded, 453 F.3d 1237 (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).

[42] 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 country does not alter the initial unlawfulness of his immigration status).