Adjustment of status under INA § 245[1] is the act of becoming a lawful permanent resident through processing at a DHS office inside the United States, as opposed to processing through a U.S. consulate abroad.  See § 3.2, supra.

 

            Although recognizing that adjustment of status does not fit the definition of admission,[2] the BIA has held adjustment of status counts as an “admission” to the United States for at least some purposes.[3]   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.[4]

           

            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,[5] adjustment under the former legalization provisions,[6] and adjustment based on status such as asylee,[7] special immigrant juvenile[8] or VAWA.[9]

 

            At least three courts[10] have held that a noncitizen who was inadmissible at the time of adjustment of status, but was allowed to adjust status by fraud, or mistake on the part of the DHS, is not a noncitizen lawfully admitted to the United States, at least for the purpose of eligibility for relief under former INA § 212(c) and cancellation of removal.[11]  The process of rescinding a grant of adjustment of status is controlled by INA § 246.[12]

[62] INA § 245, 8 U.S.C. § 1255.

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

[64] 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).

[65] 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).

[66] 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)).

[67] See § § 3.19-3.21, supra.

[68] See § § 3.29-3.31, supra.

[69] INA § 101(a)(27)(J), 8 U.S.C. § 1101(a)(27)(J).

[70] See § 3.37, supra.

[71] Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. Sept. 6, 2007) (noncitizen who obtained lawful permanent resident status by fraud has not been lawfully admitted to the United States and is therefore ineligible for LPR cancellation of removal); Savoury v. United States Att’y Gen., 449 F.3d 1307 (11th Cir. May 25, 2006) (for purposes of qualifying for relief under former INA § 212(c)); Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where DHS erroneously granted LPR status to noncitizen who had prior controlled substance/aggravated felony conviction, noncitizen was ineligible for § 212(c) relief in removal proceedings). 

[72] See § § 3.3, 3.43, supra. 

[73] INA § 246, 8 U.S.C. § 1256.  See also 8 C.F.R. § 1246.

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).