Matter of Lemus, 25 I. & N. Dec. 734 (BIA Mar. 19, 2012) (adjustment of status under INA 245(i), 8 U.S.C. 1255(i), is unavailable to an alien who is inadmissible under INA 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II), absent a waiver); clarifying Matter of Lemus, 24 I. & N. Dec. 373 (BIA 2007).

Note: There is one very positive aspect of this decision, namely that the case was remanded to the IJ because ten years has, after years of litigation, now passed since Mr. Lemus departed the United States. This means that it may be possible to re-file these applications for admission under INA 245(i) on remand to the IJ if it has been more than 10 years since the date of the last departure (and/or the person now qualifies for a waiver under INA 212(a)(9)(B)(v)).

In addition, on remand, re-opening, or re-filing, the applicant may also be eligible now to apply for non-LPR cancellation of removal which may be granted even if the application is inadmissible under INA 212(a)(9). Thanks to Dan Kesselbrenner.