ROTIMI

Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616

Matter of Felix ROTIMI, Respondent

File A73 561 893 - New York

Decided July 30, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien has not “lawfully resided” in the United States for purposes of qualifying for a

waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act,

8 U.S.C. § 1182(h) (2006), during any periods in which the alien was an applicant for

asylum or for adjustment of status and lacked any other basis on which to claim lawful

residence.

FOR RESPONDENT: Daniel S. Shabasson, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Barbara Cigarroa, Assistant

Chief Counsel

BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.

FILPPU, Board Member:

This case was last before us on December 21, 2005, when we dismissed the

respondent’s appeal from the Immigration Judge’s February 1, 2005, decision

finding him statutorily ineligible for a waiver of inadmissibility under section

212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2000).

Defining the term “lawfully resided continuously” as residence during which

the alien has affirmatively been accorded the right or privilege of residing here

and abides by the rules associated with that right or privilege, we concluded

that the respondent failed to demonstrate that he acquired the requisite 7-year

period of continuous lawful residence for purposes of establishing eligibility

for a section 212(h) waiver.

Relying on that definition, we rejected the respondent’s assertion that

his consecutive periods of residence as a nonimmigrant, an asylum seeker, an

adjustment applicant, and a lawful permanent resident should all be

considered lawful in determining his eligibility for a waiver. Subsequently, the

United States Court of Appeals for the Second Circuit remanded the case to

“provide [the Board] with the opportunity to exercise its authority delegated

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by Congress and provide a precedential interpretation of the relevant statutory

provision pursuant to that authority.” Rotimi v. Gonzales, 473 F.3d 55, 58 (2d

Cir. 2007). The remand directs us to construe the phrase “lawfully resided

continuously” in section 212(h) of the Act and, in particular, the term “lawful”

as it is used in relation to asylum seekers and applicants for adjustment of

status. The remand also instructs us to explain the source of the definition we

adopt. See also Onwuamaegbu v. Gonzales, 470 F.3d 405 (1st Cir. 2006)

(remanding for the Board to explain its application of section 212(h) in a case

that seemingly raises questions as to the meaning of the phrase “lawfully

resided continuously”).

As explained below, we find the phrase “lawfully resided continuously” to

be ambiguous. Further, we find it unnecessary to adopt a comprehensive

definition of this statutory language in the context of this case. Instead, we

simply determine that the respondent did not “lawfully” reside in the

United States during those periods in which he was an applicant for asylum or

for adjustment of status and lacked any other basis for claiming lawful

residence.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of this case are undisputed. The respondent was admitted to the

United States on June 7, 1995, as a B-2 nonimmigrant visitor with permission

to remain for 6 months. See section 101(a)(15)(B) of the Act, 8 U.S.C.

§ 1101(a)(15)(B) (1994) (requiring, in part, that the visitor have “a residence

in a foreign country which he has no intention of abandoning”). In September

1995, prior to the expiration of his nonimmigrant status, the respondent filed

an asylum application with the Department of Homeland Security (“DHS”).1

On May 17, 1996, the respondent’s asylum application was denied and the

DHS initiated deportation proceedings against the respondent.

During his deportation proceedings in July 1996, the respondent filed an

application for adjustment of status based on his marriage to a United States

citizen and a pending visa petition to classify him as an “immediate relative”

under section 201(b) of the Act, 8 U.S.C. § 1151(b) (1994). The visa petition

was approved on or about November 18, 1996, and on May 1, 1997, the

Immigration Judge terminated the respondent’s deportation proceedings to

allow him to pursue his application for adjustment of status directly with the

DHS. The respondent adjusted his status to that of a lawful permanent resident

on August 13, 1997.

1

The asylum application was actually filed with the former Immigration and Naturalization

Service (“INS”). For ease of reference, we will refer to the former INS as the DHS.

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On May 22, 2002, the respondent was convicted of the offense of

attempted criminal possession of a forged instrument. In November 2002,

upon his return from foreign travel, he sought admission to this country as a

returning permanent resident. A Notice to Appear (Form I-862) filed with the

Immigration Court on June 13, 2003, charged the respondent with

inadmissibility under section 212(a)(2)(A)(i)(I) of the Act as an alien who has

committed a crime involving moral turpitude. During his hearing before the

Immigration Judge, the respondent admitted the truth of the factual allegations

and conceded that he is removable as charged. He then applied for a waiver

of inadmissibility under section 212(h) of the Act. Concluding that the

respondent had not acquired the requisite 7 years of continuous lawful

residence, the Immigration Judge found him statutorily ineligible for a waiver.

II. SECTION 212(h)

Section 212(h) of the Act permits the Attorney General, in his discretion, to

waive section 212(a)(2)(A)(i)(I), which provides that an alien convicted of a

crime involving moral turpitude is inadmissible. A lawful permanent resident

may properly be charged with inadmissibility under section 212(a)(2)(A)(i)(I)

of the Act but may, if statutorily eligible, seek a waiver of inadmissibility

under section 212(h). See section 101(a)(13) of the Act, 8 U.S.C.

§ 1101(a)(13) (2006); see also Matter of Collado, 21 I&N Dec. 1061, 1064

(BIA 1998). However, section 212(h) limits the eligibility of lawful

permanent residents for a waiver, providing, in pertinent part, as follows:

No waiver shall be granted under this subsection in the case of an alien who has

previously been admitted to the United States as an alien lawfully admitted for

permanent residence if either since the date of such admission the alien has been

convicted of an aggravated felony or the alien has not lawfully resided continuously

in the United States for a period of not less than 7 years immediately preceding the

date of initiation of proceedings to remove the alien from the United States.

We read the statute to permit a waiver for lawful permanent residents who:

(1) have not been convicted of an aggravated felony since the date of

admission as a permanent resident, see Matter of Yeung, 21 I&N Dec. 610

(BIA 1996, 1997); and (2) have lawfully resided continuously in this country

for 7 years immediately preceding the institution of proceedings, irrespective

of whether the period of lawful residence was as a permanent resident.2

2

In some unpublished decisions we have relied on the grammatical structure of section

212(h) to reject the DHS’s contention that an alien can only “lawfully” reside in this country

while in lawful permanent resident status. The placement of the phrase “since the date of

(continued...)

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III. ISSUE

To be eligible for a section 212(h) waiver the respondent must demonstrate

that he has “lawfully resided continuously” in the United States for 7 years

before the initiation of removal proceedings. His removal proceedings began

at least as of June 13, 2003, when the Notice to Appear was filed with the

Immigration Court. He must therefore establish that he lawfully resided here

continuously since at least June 1996. The respondent became a lawful

permanent resident on August 13, 1997. However, his failure to accrue 7 years

of continuous residence as a lawful permanent resident is not decisive, but he

does need an additional 14 months of lawful residence. We must therefore

determine whether his 13 months as an applicant for adjustment of status and

his earlier (and overlapping) time as an applicant for asylum count toward

establishing that he has “lawfully resided continuously” for 7 years before his

removal proceedings were initiated.3

(...continued)

such admission” permits lawful residence to be accrued outside of permanent resident status.

The phrase appears after the word “either” and before the word “or.” Standard English

grammar requires that “either . . . or” constructions contain parallel elements following the

coordinating conjunctions “either” and “or.” See Bryan A. Garner, A Dictionary of Modern

American Usage 240, 479-80 (1998); American Heritage Book of English Usage (1996),

available at http://www.bartleby.com/64/C002/004.html; Fowler’s Modern English Usage

147 (2d ed. 1965). In order for the phrase “since the date of such admission” to modify both

clauses following the word “either,” the phrase would need to appear before the word

“either,” e.g., “if since the date of such admission either the alien has been convicted of an

aggravated felony or the alien has not lawfully resided continuously in the United States for

a period of not less than 7 years.” In its current position after the word “either,” the phrase

“since the date of such admission” applies exclusively to the “convicted of an aggravated

felony” clause. Simply put, the rules of grammar provide that the second clause should not

be read to require 7 years of continuous residence as a lawful permanent resident.

3

For reasons based in meaningful part on “absurdity” concerns, we have construed an alien’s

adjustment to lawful permanent resident status as an “admission.” See Matter of Shanu,

23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Dep’t of Homeland Security, 450 F.3d 578

(4th Cir. 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). Because the parties have

not raised any challenge to this approach, we have no occasion to consider the impact on this

case of such decisions as Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (finding the

statutory language to be unambiguous in ruling that an alien who adjusted to permanent

resident status was not subject to the section 212(h) bar for conviction of an aggravated

felony after “admission” as a lawful permanent resident).

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IV. ANALYSIS

We begin by examining the relevant language of section 212(h), which

provides that “[n]o waiver shall be granted . . . [to] an alien lawfully admitted

for permanent residence if . . . the alien has not lawfully resided continuously

in the United States” for the required 7-year period. (Emphasis added.)

Significantly, the precise phrase “lawfully resided” has not been employed

elsewhere in the Act, and we are unaware of its use in a comparable context.

Nor have we addressed the phrase in a precedent decision, although the Ninth

Circuit has spoken to the question. See Yepez-Razo v. Gonzales, 445 F.3d

1216 (9th Cir. 2006) (discussing the term “lawfully resided” in the context of

the Family Unity Program).

We find that the meaning of the phrase “lawfully resided” is not

self-evident, and we consider it to be ambiguous. See Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). The

ambiguity is reflected in the range of possible constructions it may be given.

For example, it could, as the respondent suggests, be interpreted to include

periods of residence during which an alien, despite having no lawful

immigration status, is not subject to removal as a matter of law and may obtain

employment authorization. It could also be construed, as we determined when

the case was last before us, as residence during which the alien has

affirmatively been accorded the right or privilege of residing here and abides

by the rules associated with that right or privilege. It could even be read to

require an entirely law-abiding life, beyond the context of the immigration

laws, during the 7-year period. However, Congress has used the phrase

“lawfully resided” in a technical immigration provision designed to waive

criminal grounds of inadmissibility set forth in the Immigration and

Nationality Act. As such, we believe that the meaning of the phrase needs to

be derived in the context of the immigration laws.

Under the current structure of our nation’s immigration laws and the

implementing regulations, there is a wide array of classifications into which

aliens might fall. Given the breadth of possible issues that might arise in any

particular alien’s situation, we find that it would be imprudent for us to attempt

a comprehensive ruling that would address and resolve the many cases that are

not now before us. Because such an expansive interpretation of the statutory

phrase is not necessary for the resolution of this case, we will simply explain

the reasons that lead us to conclude that the respondent’s 13 months as an

applicant for adjustment of status and his earlier (and overlapping) time as an

applicant for asylum do not count toward establishing that he has “lawfully

resided continuously” for the 7-year period required to establish his eligibility

for a section 212(h) waiver of inadmissibility.

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At the outset, we find that the phrase “lawfully resided” connotes more

than simple presence or residence. The overall statutory scheme for conferring

privileges on aliens reflects that lawful residence in this country is not

something that an alien can achieve through self-action alone. For example,

the status accorded to a nonimmigrant or lawful permanent resident is

conferred and sanctioned only after application and examination. The same

is true for asylee and refugee benefits. Further, as explained below, the basic

principles of immigration law lead us to construe the term “lawfully resided”

in a manner that is in accord with our previous interpretation of the word

“lawful” in the phrase “lawful unrelinquished domicile” in former section

212(c) of the Act, 8 U.S.C. § 1182(c) (1994).

But first we turn to the legislative history pertaining to the phrase “lawfully

resided,” which was added to section 212(h) of the Act by section 348 of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-639 (“IIRIRA”).

That history, while not extensive, lends some support to the proposition that

an alien’s application for lawful status or other benefit that might not entail a

“status” must actually be approved before his or her residence in this country

will be considered lawful for section 212(h) purposes.

According to a conference report accompanying the IIRIRA, “The

managers intend that the provisions governing continuous residence set forth

in INA section 240A as enacted by this legislation shall be applied as well for

purposes of waivers under INA section 212(h).” H.R. Rep. 104-828, at 228

(1996) (Conf. Rep.), 1996 WL 563320. Section 240A(a)(2) of the Act,

8 U.S.C. § 1229b(a)(2) (2006), provides relief from removal to certain lawful

permanent residents with criminal convictions if they have “resided in the

United States continuously for 7 years after having been admitted in any

status.” (Emphasis added.) We consider the conference report’s reference to

section 240A to relate to an alien’s residence after admission in an

immigration status has been authorized.4 The requirement that an alien

“lawfully reside” as a prerequisite for relief under section 212(h) strongly

suggests the need for favorable action on a request to be in this country.

However, unlike section 240A, section 212(h) does not specifically require

the residence to be in a “status.”

4

We have further considered the possibility that the conference report could be construed

to refer to the conviction stop-time rule in section 240A(d)(1) of the Act, but for the reasons

above we do not believe that Congress intended the requirement for “lawful” residence to

refer simply to a law-abiding life. Instead, we find it unlikely that Congress, through the

conference report’s cryptic reference to section 240A, meant to incorporate all the provisions

relating to continuous residence contained in that section of the Act.

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We reject the respondent’s suggestion that the legislative history indicates

that the “residence” required under sections 212(h) and 240A(a) of the Act be

treated the same. Section 240A(a) requires only 7 years of continuous

residence after admission to the United States in any status, thereby including

aliens who have fallen out of status during the prescribed period. See Matter

of Blancas, 23 I&N Dec. 458 (2002). Section 212(h) could easily have been

written to require simple residence, lawful or not, following admission in some

status. But its language does not parallel section 240A(a) in this respect. We

are therefore unpersuaded that the conference report’s reference to section

240A overrides the differently worded language of section 212(h), which

requires 7 years of continuous lawful residence. Cf. Matter of Blancas, supra,

at 461 (declining to read section 240A(a)(2) to include maintenance of status

as a prerequisite for relief and finding that the legislative history’s reference

to section 212(c) does not clearly override the plain language of section

240A(a)(2), which allows 7 years of continuous residence after admission in

any status for purposes of cancellation of removal).

We also reject the respondent’s contention that any period of physical

presence in which an alien is not subject to being removed as a matter of law

should be deemed “lawful,”even if the alien has no specific permission to be

here beyond that which is afforded during the adjudication of a claim or a

removal case. As we understand it, the respondent’s argument would allow

lawful residence to arise from any legal impediment to removal. However,

simply acceding to the physical presence of an alien under such circumstances

does not render his or her residence “lawful” for section 212(h) purposes. If

that were the case, the vast majority of aliens in the United States who are

entitled to a removal hearing and the associated appeal rights could claim

lawful residence based on a combination of physical presence and some barrier

to removal. We are unpersuaded that the notion that an alien “lawfully”

resides in the United States within the meaning of the immigration laws should

hinge on the Government’s indulgence of his or her presence until the

completion of proceedings. Being an applicant for asylum or for adjustment

of status is not a defense to removal. It is only after the application is

approved that the alien has authorization to remain in this country beyond the

conclusion of the proceedings.

Moreover, an examination of section 212(h) as it applies to lawful

permanent residents within the statutory scheme supports requiring an

approved application, not merely an application pending review, for lawful

status or other benefit in order for residence in this country to be deemed

lawful. Section 101(a)(20) of the Act states that “[t]he term ‘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.”

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(Emphasis added.) Thus, when it comes to lawful permanent residents, despite

an alien’s ultimate eligibility for such status, the language of the statute

indicates that actual approval, not simply the submission, of the application is

required before the alien can claim to have been accorded the privilege of

residing permanently in this country.

Although the word “lawful” is not defined in section 101 of the Act, it is

generally defined as “being in harmony with the law” or “constituted,

authorized, or established by the law.” Merriam-Webster’s Collegiate

Dictionary 658 (10th ed. 2002). Section 101(a)(33) of the Act defines

“residence” as “the place of general abode,” which is further defined as a

person’s “principal, actual dwelling place in fact, without regard to intent.”

For an alien’s residence to be treated as “lawful,” it must be authorized or in

harmony with the law, which requires some formal action beyond a mere

request for authorization or the existence of some impediment to actual

physical removal.

The respondent further contends that “lawfully resid[ing]” should be

considered the equivalent of being “not unlawfully present” for purposes of

inadmissibility under section 212(a)(9) of the Act. Section 212(a)(9)(B)(ii)

provides that “an alien is deemed to be unlawfully present in the United States

if the alien is present in the United States after the expiration of the period of

stay authorized by the Attorney General or is present in the United States

without being admitted or paroled.” Under section 212(a)(9)(B)(iii)(II), a

bona fide asylum applicant is exempt from the consequences of accruing

“unlawful presence.” But simply tolling or exempting an alien from added

sanctions for staying in this country without lawful authority does not

transform the alien’s presence while an applicant for benefits into lawful

residence itself. Congress carved out a special exception for the limited

purpose of section 212(a)(9) inadmissibility, without which an alien’s presence

as an applicant for asylum would be deemed unlawful after the expiration of

any authorized period of presence. Section 212(h) does not contain any

similar exception for asylum applicants, and the special exception confined to

section 212(a)(9) does not warrant a broader application to change the meaning

of “lawful” residence for section 212(h) waiver eligibility.

The lawfulness of an alien’s residence stems from the grant of a specific

privilege to stay in this country, not the mere fact that he or she is an applicant

for such a privilege. Cf. United States v. Ochoa-Colchado, 521 F.3d 1292

(10th Cir. 2008) (recognizing a distinction between an applicant for

adjustment and the grant of adjustment, in that the unlawful status of the

former is not relinquished until the latter occurs, and holding that the alien

was still unlawfully in the United States, despite his pending application

for adjustment of status, which operated to stay his removal during its

adjudication, and his receipt of an employment authorization document). This

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conclusion is consistent with our decision in Matter of Lok, 18 I&N Dec. 101

(BIA 1981), in which we construed the meaning of the term “lawful” in the

context of former section 212(c) of the Act, which required “lawful domicile.”

In Matter of Lok, supra, we concluded that for a domicile to be considered

“lawful,” the alien’s presence in this country

must be lawful within the meaning of this country’s immigration laws. The

Immigration and Nationality Act sanctions the continuing presence in this country of

but one class of aliens other than those lawfully admitted for permanent residence,

namely, nonimmigrants in compliance with the terms and conditions of their

admission.

An alien in breach of his nonimmigrant status . . . has no claim of right under the

Act to remain in this country. The fact that the Government refrains, in an individual

case or as a matter of general policy, from instituting deportation proceedings against

an alien or enforcing his deportation does not legalize the status of the beneficiary of

the Government’s forebearance. He remains in the United States at the sufferance of

the Government, not under any lawful status accorded him by the Act.

Matter of Lok, supra, at 108-09 (citations omitted).

Our view of lawfulness in the context of lawful domicile was endorsed by

the Second Circuit in Lok v. INS, 681 F.2d 107 (2d Cir. 1982), where the court

stated the following:

Lok established lawful domicile only when his intent to remain was legal under the

immigration laws. . . . As a seaman who had overstayed his 29 days, Lok was in the

United States illegally. He could not establish lawful domicile. Nor did his marriage

change his status. The INS halted deportation proceedings against Lok as a matter of

grace, not as a matter of law. The toleration of Lok’s presence clearly did not legalize

his intent to remain, which was still at odds with the statute, as Lok had to leave the

country before he could enter as a legal alien.

The requirement that Lok’s domicile be “lawful” is more than a formality; it is a

commandment installed in the 1952 Immigration and Naturalization Act . . . .

....

. . . The possibility of [ ] discretionary relief led the INS and the Courts to tolerate

Lok’s presence; it did not legalize his intent to remain any more than the Service’s

policy against deporting Lok as the spouse of a citizen.

Lok v. INS, supra, at 109-11 (citations omitted).

Section 212(h) contains no domicile requirement, and the immigration laws

have evolved to recognize that nonimmigrants and lawful permanent residents

are not the only categories of aliens that are lawfully in the United States. For

example, aliens accorded refugee or asylee status are now considered to have

lawful presence. However, based on the long-standing construction of the

term “lawful” in the Lok decisions, we think that there is a distinction to be

drawn between permitting an alien’s presence in this country for a limited

purpose and legalizing his or her stay. It is this distinction that provides the

primary basis for our refusal to count the respondent’s time spent as an

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applicant for benefits as periods during which he “lawfully resided” here for

purposes of a section 212(h) waiver.

The Second Circuit has asked us to explain the source of the interpretation

we adopt. We rely on the same fundamental construction of the term “lawful”

that we applied in the past but update it in light of general changes that have

taken place over the years. As explained earlier, we also find support for our

view in the legislative history, which we read to suggest the need for a grant

of a status of some sort, and probably one that is consistent with lawfully

establishing a residence in the United States. Moreover, we rely on the

dictionary definition of the term “lawful” and the language of section

101(a)(20) of the Act, which mandates that the residence of lawful permanent

residents be “in accordance with the immigration laws.” To reside here

lawfully entails more than being an applicant for a benefit, even if the

opportunity for work authorization may arise from pursuit of the benefit. The

temporary reprieve from removal and possibility of work authorization that

can accompany applications for asylum and adjustment of status are simply

that—temporary reprieves and possibilities.5

The respondent urges us to follow the Ninth Circuit’s decision in

Yepez-Razo v. Gonzales, supra, where the court concluded that an eligible

beneficiary for Family Unity benefits was “lawfully” residing because the

statute creating the Family Unity Program provided that eligible beneficiaries

“‘may not be deported’” and “‘shall be granted authorization to engage in

employment.’”6 Id. at 1219 (quoting section 301(a) of the Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, 5029). Ordinarily, we would

expect the privilege of residing in this country to be reflected in a recognized

status such as that of nonimmigrant, refugee, or asylee, each of which is set out

in the statute. The unique nature of the Family Unity Program may qualify as

5

On appeal, the respondent asserts that the “rule of lenity” requires us to interpret the term

“lawfully resided” in such a way as to favor an alien in his position. We disagree. As

discussed above, we find that the meaning of the phrase at issue can be discerned, at least

sufficiently enough to resolve this case, by looking to normal precepts of immigration law.

See generally Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198-99 (2d Cir. 2007) (explaining that

the rule of lenity is one of last resort, and that it does not apply whenever there is an

ambiguity in an immigration statute).

6

The court observed that the term “lawfully resided” is “unclear” and that the Board had

declined to define it. The court likewise abstained from providing a definition, finding that

“[w]hatever the proper definition,” the alien in that case was “lawfully residing in the

United States for purposes of 212(h).” Yepez-Razo v. Gonzales, supra, at 1219.

Subsequently, and in the absence of a Board precedent on the issue, the Ninth Circuit treated

enrollment in the Family Unity Program as reflecting that the alien had been “admitted in

any status” so as to qualify for cancellation of removal. See Garcia-Quintero v. Gonzales,

455 F.3d 1006, 1018-20 (9th Cir. 2006).

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well, given its statutory foundation in section 301 of the Immigration Act of

1990, and its expectation of long-term presence and ultimate regularization of

status. Notably, benefits under the Family Unity Program require the filing of

an application and a favorable decision on that application. See 8 C.F.R.

§ 236.14 (2008). The issue of lawful residence under the Family Unity

Program, however, is not currently before us, and we reject the respondent’s

reliance on Yepez-Razo v. Gonzales, supra, at least to the extent it finds that

“lawful” residence arises simply from the inability to deport an alien coupled

with the alien’s eligibility for work authorization.7

Importantly, we need now only resolve whether an applicant for privileges

or benefits is deemed to have “lawfully resided” here for purposes of section

212(h) prior to a favorable action on the application, when the applicant enjoys

no other status or privilege that prevents the initiation and completion of

removal proceedings. As indicated above, we resolve this question against the

respondent.

The respondent was admitted to the United States in June 1995 as a

nonimmigrant visitor for a period of 6 months. However, he did not abide by

the rules associated with that privilege, as he remained beyond his authorized

6-month period of stay. Consequently, any lawfulness associated with his

presence or residence ended when his nonimmigrant visa expired. The

respondent’s submission of asylum and adjustment applications did not change

the fact that his status as a nonimmigrant visitor had ended. Nor did filing

such applications give the respondent lawful residence here, as he was merely

an applicant for benefits with, at best, a temporary reprieve while his

applications were adjudicated. Specifically, the respondent was requesting

7

To illustrate, under the regulations, an alien appealing to the Board from an initial order

of removal may not be removed while the appeal is pending. 8 C.F.R. § 1003.6(a) (2008).

In our judgment, it would be inconsistent with the overall scheme of section 212(h) to

consider such an alien to be lawfully residing here simply by virtue of the stay that

accompanies the appeal. Further, it is possible for work authorization to be granted in

limited circumstances to aliens in removal proceedings, such as asylum applicants whose

cases are not resolved in a reasonably prompt fashion, or certain aliens whose final removal

orders cannot be implemented. See, e.g., section 208(d)(2) of the Act, 8 U.S.C. § 1158(d)(2)

(2006) (placing a general 180-day waiting period on employment authorization for asylum

applicants); section 241(a)(7) of the Act, 8 U.S.C. § 1231(a)(7) (2006) (limiting employment

authorization for aliens ordered removed); see also 8 C.F.R. § 1208.7(a)(1) (2008)

(indicating that the statutory work authorization waiting period for asylum applicants

includes those in removal proceedings before Immigration Judges); 8 C.F.R.

§§ 274a.12(c)(18), 274a.14(a) (2008).

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Cite as 24 I&N Dec. 567 (BIA 2008) Interim Decision #3616

forms of relief that would allow him to remain in this country. Indeed, the

respondent was put into deportation proceedings during this very period of

time.8

We likewise reject the respondent’s assertion that his ability to obtain work

authorization during the pendency of his asylum and adjustment applications

demonstrates lawful residence. An alien who is merely provided employment

authorization, and who is allowed to remain here while awaiting a ruling on his

applications for relief, is not in the same position as an alien who has been

granted a valid immigration status or some other specific authorization to be

here, such as Family Unity benefits (regardless of whether it amounts to a

recognized “status”). See Matter of Lok, supra; see also United States

v. Ochoa-Colchado, supra. Thus, work authorization is not equivalent to a

lawful status; nor is it necessarily reflective of a right to lawfully be or remain

in this country. Rather, it can equally be an indication of other things, such as

an alien’s need for employment while applications for relief are pending. The

respondent was in an unlawful immigration status between the time his visitor

status had expired and the time he adjusted his status. He did not “lawfully

reside” here for section 212(h) purposes pending the DHS’s ruling on his

applications for relief.

V. CONCLUSION

Based on the above, we find that the respondent has not lawfully resided

continuously in this country for a period of not less than 7 years immediately

preceding the initiation of proceedings in June 2003. Therefore, we find that

the Immigration Judge correctly concluded that the respondent is statutorily

ineligible for a section 212(h) waiver. Accordingly, the respondent’s appeal

will be dismissed.

ORDER: The appeal is dismissed.

8

The timing of the respondent’s applications in relation to the initial deportation

proceedings parallels the facts in Matter of L-K-, 23 I&N Dec. 677 (BIA 2004), in which we

determined that the alien had failed to maintain lawful status and that the failure was not “for

technical reasons” within the contemplation of section 245(c)(2) of the Act, 8 U.S.C.

§ 1255(c)(2) (2000).

578