AYALA

Interim Decision #3371

In re Pablo AYALA-Arevalo, Respondent

File A42 989 249 - Philadelphia

Decided November 30, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A discretionary waiver under section 212(h) of the Immigration and Nationality Act, 8

U.S.C. § 1182(h) (Supp. II 1996), is not available to an alien who has been convicted of an

aggravated felony, or to an alien who has not lawfully resided continuously in the United

States for the statutorily required period of 7 years, where the alien has previously been law-

fully admitted for permanent residence but subsequently has been found to have been exclud-

able at entry or inadmissible on the date admitted.

(2) Matter of Michel, 21 I&N Dec. 1101 (BIA 1998), is not applicable to an alien who has

previously been lawfully admitted for permanent residence to the United States but later

claims that such admission was not lawful because he concealed from the Immigration and

Naturalization Service criminal activities that, if known, would have precluded his admission,

so the Immigration Judge correctly found that the respondent was statutorily ineligible for a

waiver of inadmissibility under section 212(h) of the Act, Matter of Michel, supra, distin-

guished.

Stanley H. Wallenstein, Esquire, New York, New York, for respondent

Catherine Muhletaler, Assistant District Counsel, for the Immigration and Naturalization

Service

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEIL-

MAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON,

GUENDELSBERGER, JONES, GRANT, and SCIALABBA, Board Members,

Dissenting Opinion: ROSENBERG, Board Member.

JONES, Board Member:

This is a timely appeal from an April 22, 1997, decision of the

Immigration Judge, finding the respondent deportable under sections

241(a)(1)(A) and (2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1251(a)(1)(A) and (2)(A)(i) (Supp. II 1996), and ineligible for any relief

from deportation. The only issue on appeal relates to the Immigration

Judge’s finding that the respondent was ineligible for a waiver under sec-

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tion 212(h) of the Act, 8 U.S.C. § 1182(h) (Supp. II 1996), in that he had

not resided in the United States lawfully for 7 years or more, as required for

an alien who has been admitted as a lawful permanent resident. The appeal

will be dismissed. The request for oral argument is denied, 8 C.F.R. § 3.1(e)

(1998).

I. BACKGROUND

The respondent is a 29-year-old native and citizen of Ecuador. He

entered the United States in January 1989 and reentered on July 3, 1991, at

which time he was admitted as an immigrant. On April 26, 1996, the

respondent was convicted in the United States District Court, District of

Rhode Island, of conspiracy in violation of 18 U.S.C. § 371 (1994) (con-

spiracy to defraud the United States by making false statements to a depart-

ment of the United States). He was sentenced to a term of 27 months’

imprisonment, followed by a term of supervised release to last 3 years.

The respondent testified that he had engaged in fraudulent activity

before leaving the United States and had continued this activity upon his

return. The details concerning this crime are described in a grand jury

indictment. In brief, the respondent served as vice-president of a firm that

purportedly offered assistance in obtaining legitimate employment author-

ization documents from the Immigration and Naturalization Service. For a

fee of several hundred dollars, the respondent’s firm would prepare fraudu-

lent applications for asylum, in which false allegations of persecution were

made for the purpose of obtaining employment authorization.

The Service attempted to establish that the respondent was an aggra-

vated felon, in that the amount of loss to the victim of the conspiracy was

more than $200,000 dollars (specifically, according to notes made by an

investigator, $714,000). However, the Immigration Judge found that the

Service did not establish that the respondent was within the definition of an

aggravated felon, due to a lack of evidence in the record relating to the

amount of loss to the victim. See section 101(a)(43)(M)(i) of the Act, 8

U.S.C. § 1101(a)(43)(M)(i) (1994) (defining certain crimes as aggravated

felonies based on the amount of monetary loss to the victim).1 The convic-

tion record did not include a figure for the amount of loss, and the investi-

gator’s notes, to which the Service attorney testified, were not made part of

1

Statutory changes made to section 101(a)(43)(M) of the Act in 1996 reduced the

amount of monetary loss to the victim or victims required to trigger a finding that a convic-

tion was for an aggravated felony, in cases involving fraud or deceit, from $200,000 to

$10,000. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division

C of Pub. L. No. 104-208, § 321(a)(7), 110 Stat. 3009-546, 3009-628 (enacted Sept. 30,

1996), However, in view of our holding, these changes are not relevant to this decision.

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the record at the deportation hearing. Thus, the Immigration Judge did not

find the respondent deportable as an aggravated felon. He did, however, find

the respondent deportable as charged, both on the basis of his conviction for

a crime involving moral turpitude, and as an alien who was excludable at

entry under section 212(a)(2)(A)(i)(I) of the Act, as a result of his conviction.

Further, the Immigration Judge found the respondent ineligible for a waiver

under section 212(h) of the Act because he had not resided in the United

States lawfully for 7 years or more immediately preceding the date of the ini-

tiation of his deportation proceedings, which was May 20, 1996.

II. ISSUE

On appeal, the respondent argues that he is not bound by the require-

ment that 7 years of lawful presence be demonstrated in order to qualify for

a waiver of inadmissibility under section 212(h) of the Act. It is the respon-

dent’s position that the relevant statutory provision differentiates between

two classes of individuals: those who have been admitted for lawful per-

manent residence while concealing the presence of grounds of inadmissi-

bility (in this case, ongoing criminal activity), and those who have been

admitted for lawful permanent residence without having any grounds of

inadmissibility to conceal. Stated differently, in the respondent’s view,

aliens who have been “lawfully” admitted for permanent residence are dif-

ferent from those whose admission was later found to have been in viola-

tion of law, and consequently determined to be unlawful. The respondent

seeks to distinguish his case from that of other individuals previously

admitted for permanent residence who lack the requisite 7 years of lawful

residence because he was determined by the Immigration Judge to have

been inadmissible on the date he was admitted to the United States as a law-

ful permanent resident on the basis that he had admitted that he was

involved in an ongoing criminal conspiracy at that time. Therefore, the

respondent argues that he should not be precluded from applying for relief

under section 212(h) of the Act.

III. ANALYSIS

Section 212(h) of the Act was recently amended by section 348(a) 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 (“IIRI-

RA”), Two new sentences were added, which read as follows:

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

viously 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

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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, No court shall have juris-

diction to review a decision of the Attorney General to grant or deny a waiver under

this subsection.

Section 212(h) of the Act (emphasis added).

The Act defines “lawfully admitted for permanent residence” as fol-

lows:

The 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.

Section 101(a)(20) of the Act. While the language of section 212(h) distin-

guishes those who have been previously admitted for permanent residence

from those who have not, see Matter of Michel, 21 I&N Dec. 1101 (BIA

1998), the statute does not, either expressly or by implication, distinguish

between those whose admission was lawful and those who were previously

admitted for lawful permanent residence but are subsequently determined to

have been admitted in violation of the law. To read such a distinction into

the statute would be arbitrary and capricious, Cf. Matter of Pineda, 21 I&N

Dec. 1017, at 1021 n.2 (BIA 1998) (“The fact that a reading of a statutory

provision could lead to seemingly arbitrary and capricious results is not in

itself determinative of the issue of statutory interpretation, but it can be a

matter to be considered in one’s analysis of the meaning of particular

words.”). We are not persuaded by the respondent’s argument that we

should read his proposed distinction into the law by focusing on the term

“lawfully admitted” and disregarding the entire phrase that provides the

context for that term, namely “previously been admitted” to the United

States as an alien lawfully admitted for permanent residence. Section

212(h) of the Act.

The respondent does not meet the revised criteria for eligibility for a

waiver under section 212(h) of the Act. His case is not similar to that of the

respondent in Matter of Michel, supra, who was never admitted to the

United States as a lawful permanent resident, and was thus unaffected by

statutory language limiting eligibility of those who had been admitted as

lawful permanent residents. The respondent in this case had been, at the

time he was convicted, admitted to the United States as a lawful permanent

resident.

In support of his interpretation, the respondent cites three Board cases

that analyze the meaning of the phrase “lawfully admitted for permanent

residence” in the context of registry proceedings under section 249 of the

Act, 8 U.S.C. § 1259 (1958), Matter of Preciado-Castillo, 10 I&N Dec. 3

(BIA 1962); Matter of R-, 8 I&N Dec. 598 (Asst. Comm’r 1960); Matter of

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S-, 8 I&N Dec. 288 (Asst. Comm’r 1959). Each of these cases addresses the

issue of whether the existence of a record of lawful admission for perma-

nent residence might be, in a variety of circumstances, compatible with eli-

gibility for registry under section 249 of the Act. While these decisions all

discuss the meaning of the phrase, “lawfully admitted for permanent resi-

dence,” they do not address the main issue in this case, which is whether the

respondent “has previously been admitted” for permanent residence to the

United States. The respondent does not examine the meaning of the word,

“previously,” as it is applied to this case. No legal precedent has been cited

that convincingly supports the theory that the word “previously” has no

application to this case.

Further, the respondent, who does not yet have a final order of depor-

tation, still enjoys the status of an alien who has been “lawfully admitted for

permanent residence,” which he acquired in July 1991. He was not con-

victed of the offense of conspiracy to defraud the Government until April

26, 1996, and the Order to Show Cause and Notice of Hearing (Form I-221)

was not issued until May 20, 1996. The fact that the respondent’s criminal

behavior may, in the future, prevent him from continuing to enjoy his status

as one lawfully admitted for permanent residence does not confer on him

the preferential treatment implicit in the current language of section 212(h),

accruing to an alien who has not previously been admitted as an alien law-

fully admitted for permanent residence. See Matter of Michel, supra; cf.

Matter of Wadud, 19 I&N Dec. 182, 185 (BIA 1984) (declining to afford

section 212(c) relief only to those aliens whose crime under section

241(a)(5) involved moral turpitude because to do so would be to reward

those guilty of a more egregious offense for their greater culpability, and the

Board was unable to conclude that Congress intended such an inequitable

consequence to ensue from the implementation of section 212(c)).

Inasmuch as the respondent was admitted to the United States in law-

ful permanent resident status and has failed to accrue 7 years of lawful res-

idence since the date of his admission, he is ineligible for a waiver under

section 212(h). Nothing in the language of the statute supports the proposi-

tion that the respondent’s conviction for a crime involving moral turpitude

can or should change the historical fact that, when he entered, it was in the

status of a lawful permanent resident. Section 212(h) makes no provision

for the collateral effect which the respondent seeks, and we decline to read

any such provision into the statute.

IV. CONCLUSION

The respondent is clearly precluded from section 212(h) relief because

he was previously admitted to the United States as a lawful permanent res-

ident, We therefore conclude that the Immigration Judge properly found

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him to be ineligible for a waiver, Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member

I respectfully dissent.

I cannot agree with the majority’s interpretation concerning the proper

reading of section 212(h) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(h) (Supp. II 1996). As amended 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”), a waiv-

er under section 212(h) of the Act no longer is available to an individual

who has “has previously been admitted to the United States as an alien law-

fully admitted for permanent residence,” making it impossible for certain

aliens otherwise eligible for adjustment of status under section 245(a) of

the Act, 8 U.S.C. § 1255(a) (1994), to establish admissibility under section

212 of the Act, See Matter of Michel, 21 I&N Dec. 1101 (BIA 1998).

If available, a waiver granted under section 212(h) of the Act could

overcome several grounds of inadmissibility, including a conviction for a

single offense of simple possession of 30 grams or less of marijuana; a con-

viction for (or admission of having committed) a single crime of moral

turpitude; multiple convictions for offenses in which the aggregate sentence

to confinement was more than 5 years (without regard to whether these

offenses are crimes of moral turpitude); a purpose in coming to the United

States or conduct involving prostitution or commercialized vice; or the

commission of criminal activity regarding which the alien has asserted

immunity from prosecution under the statute. A waiver under section 212(h)

of the Act is, of course, subject to satisfaction of the substantive statutory

elements articulated in the statute, and then subject to the discretion of the

Attorney General, Matter of Mendez, 21 I&N Dec. 296 (BIA 1996).

The majority bases its denial of the respondent’s appeal on its

interpretation of the amended statute and does not reach the merits of the

respondent’s case. The question before us is: If the respondent was admit-

ted as a lawful permanent resident, either based on a misrepresentation, or

without the disclosure of facts that would have warranted finding him

inadmissible and subject to removal, can his admission as a lawful per-

manent resident be said to be a prior lawful admission? The respondent

argues that his prior admission as an immigrant cannot be considered law-

ful because, based on his criminal activity, he actually was inadmissible

at the time he was admitted, making his admission unlawful. The majori-

ty concludes, nonetheless, that since he was admitted in the status of a

lawful permanent resident, even an unlawful or invalid admission would

disqualify him from eligibility for the waiver.

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According to the majority, the statute does not distinguish “either

expressly or by implication” between those who, properly or erroneously,

are admitted in lawful permanent resident status. But that is not entirely

true, because as discussed below, both the statute and our precedents defi-

nitely distinguish between lawful and unlawful admissions, even if the sta-

tus conferred is ostensibly a “lawful” one.

First, the statutory language used in section 212(h) invokes the term

“admitted” twice in the same clause in the same sentence. It states that no

waiver shall be granted to an alien who “has previously been admitted . . .

as an alien lawfully admitted for permanent residence.” (Emphasis added.)

The meaning of the word “admitted,” as used initially, in the phrase “has

previously been admitted,” is specified in section 101(a)(13)(A) of the Act,

8 U.S.C. 1101(a)(13)(A) (Supp. II 1996), as “the lawful entry of the alien

into the United States.” (Emphasis added.) The word “lawful” has a plain

meaning that we are bound to apply in interpreting the meaning of the word

“admitted” in section 212(h), Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984); K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988) (emphasizing that a proper determi-

nation of the plain meaning of the statute must include examination of “the

particular statutory language at issue, as well as the language and design of

the statute as a whole”).

As understood in both common and legal usage, “lawful” means

“allowed by law.” See Webster’s II New Riverside University Dictionary

680 (1984), Black’s Law Dictionary defines “lawful” as meaning “legal;

warranted or authorized by law.” Black’s law Dictionary 885 (6th ed. 1990)

(“Black’s”). Black’s goes on to note that the principal difference between

the terms “lawful” and “legal” is “that the former contemplates the sub-

stance of law, the latter the form of law.” Id. Thus, the term “lawful,” in

relation to defining “admitted,” goes further than to merely denote compli-

ance with form or technical requirements and refers to the actual content,

Id. Consequently, “admitted,” as used in “has previously been admitted,”

contemplates a lawful admission in essence, not merely one that may

appear to have been legal in form, Pioneer Inv. Services Co. v. Brunswick

Assocs. Ltd. Partnership, 507 U.S. 380, 388 (1993) (stating that words that

are used in statutes are meant to carry “their ordinary, contemporary, com-

mon meaning” (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)));

see also INS v. Phinpathya, 464 U.S. 183, 189 (1984).

Second, to determine the meaning of the term “admitted,” as used in the

second portion of the clause, the majority relies on the statutory definition

of the term “admitted,” as used in the phrase “lawfully admitted for perma-

nent residence.” See section 101(a)(20) of the Act. But that begs the ques-

tion, as the statute states only that “‘lawfully admitted for permanent resi-

dence’ means the status of having been lawfully accorded the privilege of

residing permanently.” Id. (emphasis added). Stating that a person is law-

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fully admitted for permanent residence if he has been lawfully accorded the

privilege of residing permanently in the United States says little more than

that his admission in that status was accorded consistent with a prescribed

process. The term “lawful” as used in the context of “lawfully accorded”

clearly refers to process, not substance. It is clear that an individual could

be “lawfully accorded the privilege of residing permanently,” when the real

facts underlying his application for admission would not support a lawful

admission.

Third, as the respondent argues, he was inadmissible and ineligible for

admission as a lawful permanent resident before (as well as after) his 1991

admission, because he engaged in a scheme involving fraudulent activity in

which he submitted requests for employment authorization to the

Immigration and Naturalization Service on behalf of unwitting asylum

applicants and others. An invalid or unlawful admission for lawful perma-

nent residence is not a lawful admission, and once it is determined not to

have been lawful, such an admission is afforded no legal weight until and

unless it is validated, See, e.g., Matter of Sosa-Hernandez, 20 I&N Dec. 758

(BIA 1993) (finding that after a grant of a waiver under section 241(f) of

the Act, 8 U.S.C. § 1251(f) (1988), an alien could qualify as a lawful per-

manent resident having a lawful domicile of 7 years and apply for a waiver

under section 212(c) of the Act); see also Matter of Rodriguez-Esteban, 20

I&N Dec. 88 (BIA 1989) (finding no jurisdiction to reconsider the district

director’s decision rescinding the respondent’s permanent resident status,

and suggesting that were that decision not subject to a pending motion to

reconsider, the respondent whose status was rescinded would be

deportable).

As we have held that a supposedly lawful admission that later is deter-

mined not to have been lawful does not confer any benefits on the offend-

ing alien that normally would have been associated with a lawful admission,

I find it difficult to agree with the majority that the respondent’s supposed-

ly lawful admission—now argued by him to be unlawful—forecloses him

from eligibility under the terms of section 212(h) of the Act, as amended,

For example, in Matter of Garcia, 21 I&N Dec. 254, at 261 (BIA 1996), the

Board found that because the respondent, who was subject to a deportation

order, had failed to depart voluntarily before he went to the consulate and

obtained his immigrant visa, and never had received advance permission to

apply for admission prior to his return, “the respondent was never “lawful-

ly “ accorded the privilege of residing permanently in the United States as

an immigrant, and he is therefore ineligible for relief under section 212(c)

of the Act.” (Emphasis added.) As support for this interpretation, we cited

our decision in Matter of Wong, 14 I&N Dec. 12 (BIA 1972), aff’d sub nom.

Lai Haw Wong v. INS, 474 F.2d 739 (9th Cir. 1973), in which we found that

the admission to the United States of respondents who possessed visas to

which they were not entitled never conferred a lawful status upon them, See

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also Matter of Roman, 19 I&N Dec. 855 (BIA 1988) (denying nunc pro

tunc permission to reapply to a respondent who was not in possession of a

valid unexpired immigrant visa); Yik Shuen Eng v. INS, 464 F.2d 1265 (2d

Cir. 1972) (finding that favorable action under the “Chinese Confession

Program” does not retroactively validate an alien’s original, unlawful entry

as an alien lawfully admitted to this country for permanent residence, mak-

ing him eligible for naturalization).

Moreover, we have recognized that a permanent resident alien seeking

adjustment of status in deportation proceedings may be treated simultane-

ously as deportable and as an applicant for admission, See Matter of

Gonzalez-Camarillo, 21 I&N Dec. 937 (BIA 1997); Matter of Connelly, 19

I&N Dec. 156 (BIA 1984); see also Matter of Gabryelsky, 20 I&N Dec.

750 (BIA 1993) (finding that a lawful permanent resident may apply for a

section 212(c) waiver in connection with an application for adjustment of

status made in deportation proceedings); Matter of Rainford, 20 I&N Dec.

598 (BIA 1992) (holding that adjustment of status in the context of a depor-

tation proceeding would result in disposing of the ground of deportability

at issue). Thus, although a respondent maintains his permanent resident sta-

tus until a final administrative order is issued, Matter of Lok, 18 I&N Dec.

101 (BIA 1981), allowing the respondent to apply for adjustment of status

and a waiver under section 212(h) of the Act before the entry of a final

administrative order stripping him of his lawful permanent resident status

on the basis it is invalid is not dissimilar from the course we followed in

those cases.

I believe that the varied usage in the statute of the terms, “admitted,”

“admission,” “lawfully admitted,” and “lawfully admitted for permanent

residence,” found scattered throughout the statute, would be given effect

most reasonably if we were to settle on a consistent construction of what

constitutes an admission and what constitutes a lawful admission. It is

implicit that permanent resident status describes a lawful status, and, simi-

larly, a lawful admission for permanent residence seems most reasonably

construed as referring to a lawful admission in substance, rather than mere-

ly in form. When what appears to be a lawful admission turns out to have

been, in fact, an unlawful admission, it should be treated as such and the

respondent’s previous “lawful” admission should be rendered invalid.

The majority’s conclusion that the respondent’s admission for perma-

nent residence is lawful because he went through the regular procedures

seems to me to rely on form over substance and semantics rather than rea-

son. By taking this approach, the majority concludes, in essence, that an

admission for permanent residence is lawful even if it is based on fraud or

ineligibility for permanent resident status, and even if it would not be con-

sidered a valid status for most, if not all, other purposes. Although this may

be a way to preclude the respondent’s application for a discretionary waiv-

er under section 212(h) of the Act in conjunction with a discretionary appli-

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cation for adjustment of status, it strikes me as result-oriented, Cf.

Senathirajah v. INS, 157 F.3d 210, 221 (3d Cir. 1998) (noting, in the con-

text of asylum and withholding of deportation, that the agency’s adjudica-

tive procedures are not meant to be “a search for a justification to deport”

(emphasis added)). I view it as not only shortsighted, but also as unreason-

able in light of our other rulings that assess the character of an admission

according to whether it actually is lawful.

I conclude that a lawful admission for permanent residence that proves

to be invalid is not a lawful admission for permanent residence that poses a

bar to eligibility to apply for a waiver under section 212(h) of the Act,

Consequently, I dissent.

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