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Interim Decision #3747

Matter of D-K-, Respondent

Decided April 12, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien who is a refugee under section 207 of the Immigration and Nationality Act,

8 U.S.C. § 1157 (2006), and has not adjusted status to that of a lawful permanent resident

may be placed in removal proceedings without a prior determination by the Department

of Homeland Security that the alien is inadmissible to the United States. Matter

of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), distinguished.

(2) When removal proceedings are initiated against an alien who has been “admitted” to the

United States as a refugee, the charges of removability must be under section 237 of the

Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act, 8 U.S.C. § 1182 (2006).

FOR RESPONDENT: Kara Hartzler, Esquire, Florence, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Victoria Levin, Assistant Chief

Counsel

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

PAULEY, Board Member:

The respondent, who is a refugee, has appealed from the June 2, 2011,

decision of the Immigration Judge finding him removable, denying his

applications for relief, and ordering him removed from the United States.

We hold that a refugee who has not adjusted status to that of a lawful

permanent resident may be placed in removal proceedings without a prior

determination by the Department of Homeland Security (“DHS”) that the alien

is inadmissible to the United States. However, we also determine that because

such an alien was “admitted” to the United States as a refugee, he or she must

be charged in the notice to appear under section 237 of the Immigration and

Nationality Act, 8 U.S.C. § 1227 (2006), rather than section 212 of the Act,

8 U.S.C. § 1182 (2006). The appeal will be sustained in part and dismissed

in part, and the record will be remanded to the Immigration Judge for further

proceedings.

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Interim Decision #3747

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Macedonia who entered the

United States as a refugee on March 16, 1998. The record reflects that

he applied for adjustment of status with the DHS in 2005 but that after his

interview, he failed to submit documentation requested regarding his criminal

history, so his application was denied on May 12, 2006. On June 22, 2009,

the respondent was convicted of distribution of cocaine within 1,000 feet

of a public secondary school in violation of 21 U.S.C. § 860 (2006), for which

he was sentenced to 24 months in prison.

On October 8, 2010, the DHS issued a notice to appear charging that the

respondent is an alien who has been admitted but is removable under section

237(a)(2)(A)(iii) of the Act based on his conviction for an aggravated

felony relating to the illicit trafficking of a controlled substance

under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B) (2006).

However, on January 13, 2011, the DHS withdrew the charge and filed

a Form I-261 (Additional Charges of Inadmissibility/Deportability) with the

Immigration Court charging that the respondent is inadmissible under sections

212(a)(2)(A)(i)(I) and (II) of the Act as an alien convicted of a crime involving

moral turpitude and a controlled substance violation. The DHS filed a second

Form I-261 on May 3, 2011, charging the respondent under section

212(a)(2)(C) of the Act as an alien who the consular officer or Attorney

General knows or has reason to believe is a controlled substance trafficker.

The Immigration Judge sustained all three charges lodged under section

212 of the Act, found the respondent statutorily ineligible for both a waiver

under section 209(c) of the Act, 8 U.S.C. § 1159(c) (2006), and adjustment

of status, and denied his applications for asylum, withholding of removal, and

protection under the Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N.

Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the

United States Apr. 18, 1988) (“Convention Against Torture”).

On appeal, the respondent asserts that the Immigration Judge should have

terminated his removal proceedings. First, he argues that the Immigration

Judge did not have jurisdiction over these proceedings because in Matter

of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986), we held that an alien who

is a refugee may not be placed in immigration proceedings until there is a prior

determination by the DHS that the alien is inadmissible to the United States for

purposes of adjustment of status. Second, he contends that since the notice

to appear alleges that he was “admitted” to the United States as a refugee,

he was improperly charged under the inadmissibility provisions of section

212 of the Act.

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II. ANALYSIS

Section 207(c)(1) of the Act, 8 U.S.C. § 1157(c)(1) (2006), states that the

Attorney General may admit any refugee who is not firmly resettled in any

foreign country, is determined to be of special humanitarian concern to the

United States, and is admissible as an immigrant. Refugee status may

be terminated under section 207(c)(4) of the Act if the Attorney General

determines that at the time of the alien’s admission he or she was not, in fact,

a “refugee” as defined by the Act.1 See 8 C.F.R. § 207.9 (2011).

Furthermore, under the adjustment of status procedures at section 209(a)(1)

of the Act, an alien whose refugee status has not been terminated and who has

been physically present in the United States for at least 1 year shall return

or be returned to the custody of the DHS for inspection and examination for

admission as an immigrant. See also 8 C.F.R. § 209.1(a)(1) (2011). If the

alien is found to be admissible, he or she shall be regarded as a lawful

permanent resident as of the date of his or her arrival in the United States.

Section 209(a)(2) of the Act. However, if the alien is found inadmissible,

he or she may renew the application for adjustment of status before

an Immigration Judge during removal proceedings under section 240 of the

Act, 8 U.S.C. § 1229a (2006). See 8 C.F.R. § 209.1(e).

In this case, neither party maintains on appeal that the respondent was not

a refugee under section 101(a)(42) of the Act at the time he was admitted

in 1998. Rather, the respondent relies on Matter of Garcia-Alzugaray to argue

that the DHS was required to make an inadmissibility determination before

placing him in removal proceedings. The respondent contends that although

the DHS denied his application for adjustment of status, the denial was based

on his failure to provide additional documentation, not his inadmissibility

to the United States.

A. Inadmissibility Determinations by the DHS

In Matter of Garcia-Alzugaray, we found that the alien’s exclusion

proceedings were improperly commenced because, prior to their initiation, the

former Immigration and Naturalization Service failed to terminate the alien’s

1

A “refugee” is defined under section 101(a)(42) of the Act, in part, as

any person who is outside any country of such person’s nationality . . . and who

is unable or unwilling to return to, and is unable or unwilling to avail himself

or herself of the protection of that country because of persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.

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Interim Decision #3747

refugee status or determine him to be inadmissible as an immigrant after

examination under oath by an immigration officer pursuant to the Act and the

regulations. In that case we addressed the original implementing regulations

for section 209(a) of the Act, which was enacted as part of the Refugee Act

of 1980, Pub. L. No. 96-212, 94 Stat. 102. At that time the regulations

provided that after 1 year, refugees were to appear before an immigration

officer for examination under oath to determine their eligibility for permanent

residence. 8 C.F.R. §§ 209.1(a)(1), (b) (1986). However, these regulations

have since been amended to streamline the adjustment process, making the

decision whether to interview a refugee seeking permanent resident status

a discretionary determination for the DHS. See 8 C.F.R. § 209.1(d) (1999);

see also Adjustment of Status of Refugees and Asylees; Processing

Under Direct Mail Program, 63 Fed. Reg. 30,105, 30,109 (June 3, 1998).

Consequently, we are not persuaded by the respondent’s arguments that Matter

of Garcia-Alzugaray is determinative here.2

Furthermore, neither section 209 of the Act nor the regulations explicitly

state that termination of refugee status is necessary before an alien is placed

in removal proceedings under section 240 of the Act. In Matter of Smriko,

23 I&N Dec. 836, 837 (BIA 2005), we ruled that a refugee who had adjusted

status could be placed in removal proceedings even though his status

as a refugee was never terminated. Specifically, we found that 8 C.F.R.

§ 209.1(e) (2005) did not require termination of refugee status before the

commencement of removal proceedings under section 240 of the Act.

Id. at 839-40. Thus, interpreting the language of the Act and the regulations,

we concluded in Matter of Smriko that Congress did not consider termination

of refugee status to be a prerequisite to the initiation of removal proceedings

against refugees. 23 I&N Dec. at 838. Moreover, in Kaganovich v. Gonzales,

470 F.3d 894, 898 (9th Cir. 2006), the United States Court of Appeals for the

2

Although the respondent cites to an unpublished Board decision in which we applied

Matter of Garcia-Alzugaray, that alien was in exclusion proceedings, and unpublished

decisions do not constitute binding precedent. See Matter of Echeverria, 25 I&N Dec. 512,

519 (BIA 2011); see also 8 C.F.R. § 1003.1(g) (2011) (“By majority vote of the permanent

Board members, selected decisions of the Board rendered by a three-member panel . . . may

be designated to serve as precedents in all proceedings involving the same issue or issues.”).

The respondent also cites Romanishyn v. Attorney General of the United States, 455 F.3d

175, 182 (3d Cir. 2006), in support of his argument that he is not subject to removal

proceedings. However, that case was issued by the United States Court of Appeals for the

Third Circuit, which does not have jurisdiction here, and it does not squarely address the

issue raised by the respondent, namely, whether a refugee may be placed in removal

proceedings without a prior finding of inadmissibility by the DHS.

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Interim Decision #3747

Ninth Circuit, which has jurisdiction over the respondent’s case, deferred

to our interpretation of the Act and regulations in Matter of Smriko.

On appeal, the respondent does not dispute that an alien who is a refugee

may be placed in removal proceedings without the prior termination of his

or her refugee status. Instead, he argues that because Smriko and Kaganovich

were refugees who had adjusted status, which he has not, their removal

proceedings were proper since the DHS had previously found them admissible

to the United States in granting them permanent resident status. However,

neither Smriko nor Kaganovich holds that an admissibility determination

by the DHS is a preliminary step to the initiation of removal proceedings.

Furthermore, we observed in Matter of Smriko that section 239 of the Act,

8 U.S.C. § 1229 (2000), which governs the commencement of removal

proceedings, refers to “the alien” and does not distinguish between aliens who

are refugees and other aliens. 23 I&N Dec. at 838.

Accordingly, we conclude that removal proceedings were properly initiated

against the respondent without a prior determination by the DHS that he was

inadmissible to the United States and that the Immigration Judge therefore had

jurisdiction to adjudicate these proceedings. The respondent’s appeal in this

regard will be dismissed.

B. Removal Charges Under Section 212 of the Act

Although it was appropriate for the DHS to initiate removal proceedings,

we agree with the respondent that he was improperly charged in the notice

to appear with inadmissibility under section 212 of the Act. We hold that

because the respondent was “admitted” to the United States as a refugee, any

charges should have been brought under the grounds of deportability in section

237.

Section 237(a) of the Act states that any alien in and “admitted” to the

United States shall be removed if the alien falls within one or more specific

enumerated classes of deportable aliens.3 Under section 101(a)(13)(A), the

terms “admission” and “admitted” are defined as “the lawful entry of the alien

into the United States after inspection and authorization by an immigration

officer.” The burden is on the DHS to show by clear and convincing evidence

3

The requirement that an alien be “admitted” to the United States in order to be subject

to the deportability grounds was added to the statute by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546 (“IIRIRA”), for proceedings commenced on or after April 1, 1997. Prior

to enactment of the IIRIRA, the deportation grounds, which then appeared at former section

241 of the Act, 8 U.S.C. § 1251 (1994), provided only for applicability to aliens “in” the

United States.

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Interim Decision #3747

that an alien who has been admitted to the United States is deportable. Section

240(c)(3)(A) of the Act.

With regard to refugees, the language of both the Act and the regulations

states that they are “admitted” to the United States. Section 207(a) of the Act

addresses the annual “admission” of refugees into the United States. Section

207(c)(1) indicates that the Attorney General may “admit” refugees to the

United States in his discretion, and section 207(c)(3) provides for a waiver

of inadmissibility for aliens seeking “admission” to the United States

as refugees. Moreover, section 212(d)(5)(A) of the Act discusses parole

of aliens into the United States and states that it “shall not be regarded

as an admission,” and section 212(d)(5)(B) provides that an alien who

is a refugee may not be paroled unless there are compelling reasons in the

public interest requiring that he or she be paroled, rather than “admitted”

as a refugee under section 207 of the Act.

Under the regulations, an alien who believes he or she is a refugee may

apply for “admission” to the United States by filing a Form I-590 (Registration

for Classification as Refugee) with the DHS or consular office in the area

where he or she is located. See 8 C.F.R. §§ 207.1(a), 207.2(a) (2011). The

overseas office is then delegated authority to determine the alien’s

admissibility as an immigrant. See 8 C.F.R. § 207.3 (2011). Although

an initial admissibility determination may be more lenient for refugees than

it is for other aliens because some of the inadmissibility provisions are not

applicable to refugees and others may be waived under section 207(c)(3), the

Act and the regulations still contemplate that refugees are “admitted” to the

United States, albeit in the Attorney General’s discretion. Thereafter,

an approved Form I-590 allows the alien to be “admitted” conditionally

as a refugee at a port of entry in the United States within 4 months of the date

the form is approved. See 8 C.F.R. § 207.4 (2011). Finally, an alien who

is “admitted” as a refugee must accrue 1 year of physical presence within the

United States from the date he or she entered before applying for adjustment

of status under section 209(a)(1) of the Act. See 8 C.F.R. § 207.8 (2011).

Prior to 1997, the regulations stated that upon termination of an alien’s

refugee status or a determination that he or she is inadmissible, the alien was

subject to exclusion proceedings under former sections 235, 236, and 237

of the Act, 8 U.S.C. §§ 1225, 1226, and 1227 (1994). See 8 C.F.R. §§ 207.8,

209.1(a) (1997); see also Inspection and Expedited Removal of Aliens;

Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum

Procedures, 62 Fed. Reg. 10,312, 10,337, 10,346 (Mar. 6, 1997). However,

in their current form, the regulations provide that upon termination of refugee

status, the alien is to be placed in removal proceedings under section

240 of the Act, without regard to whether the alien should be charged under

section 212 or section 237 of the Act. See 8 C.F.R. §§ 207.9, 209.1(e).

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In Matter of Jean, 23 I&N Dec. 373, 374 n.4 (A.G. 2002), the

Attorney General stated in a footnote that the alien, who was a refugee, was

not paroled or permanently admitted into the United States and that she was

conditionally admitted as a refugee, thereby deferring her admissibility

inspection and examination by Federal immigration officials. See 8 C.F.R.

§ 207.4. As support for this footnote, the Attorney General cited Matter

of Garcia-Alzugaray, 19 I&N Dec. at 408-10. There, we had noted that under

prior versions of the Act, refugees had “conditional entrant” status but that

in enacting the Refugee Act of 1980, Congress replaced this with refugee

status, thus allowing refugees conditional admission for later adjustment

to permanent residence, and it specifically rejected prior proposed Senate

language that would have admitted refugees as lawful permanent residents

upon entry. Id. at 408. As a result, while Jean’s inspection and examination

for lawful permanent resident status may have been deferred for 1 year,

we do not read the Attorney General’s footnote or Matter of Garcia-Alzugaray

as a pronouncement that inspection and authorization by an immigration

officer did not precede the respondent’s initial admission as a refugee under

section 207(c)(1) of the Act.4

We acknowledge the conditional nature of a refugee’s status. However,

the fact that a refugee admission is impermanent and subject to contingencies

does not resolve the question whether it nevertheless qualifies as a kind

of “admission” for purposes of the applicability of the deportability grounds

at section 237(a) of the Act. That question was not resolved in either Matter

of Jean—in which the applicability of the inadmissibility grounds was not

contested, see supra note 4—or Matter of Garcia-Alzugaray—which applied

previous statutory and regulatory provisions that did not yet focus on the

concept of “admission” and that (in the case of the regulations) expressly

provided that aliens whose refugee status had been terminated were subject

to exclusion proceedings.

We also recognize that the concept of a “conditional admission” is not

without ambiguity. The proposition that such a status does not qualify

as a “true” admission, which can require the bringing of charges

on deportability rather than inadmissibility grounds, has some persuasive force.

But if a refugee has not been “admitted,” and also has not been paroled in view

4

As the Attorney General’s opinion observed, Jean did not contest her inadmissibility

as charged under section 212(a)(2)(A)(i)(I) of the Act, as an alien convicted of a crime

involving moral turpitude. See Matter of Jean, 23 I&N Dec. at 375-76. Thus, there was

no occasion in Jean’s case to consider the question whether the charge against her was

properly brought under the inadmissibility rather than the deportability provisions of the

Act.

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of the restrictive language at section 212(d)(5) of the Act as discussed above,

then the nature of his or her status becomes unclear. Section 212(a)(6)(A)(i)

of the Act, as amended by the IIRIRA, provides that aliens who are present

in the United States without having been either admitted or paroled are

inadmissible, thereby presumably possessing no legal status. That provision

does not appear to contemplate a third possible category, consisting of aliens

who, despite having been neither admitted nor paroled, are authorized

to be present in the United States as refugees. And if this conundrum

is to be resolved by construing the word “admitted” in section 212(a)(6)(A)(i)

to encompass conditional refugee admissions, then it is difficult to fathom why

the same construction would not be afforded to the same word as used in the

language describing the applicability of the deportability provisions at section

237(a). “As a rule, a single statutory term should be interpreted consistently.”

Matter of Alyazji, 25 I&N Dec. 397, 404 (BIA 2011) (citing Clark v. Martinez,

543 U.S. 371, 382 (2005)). To the extent that the pertinent language

is ambiguous, we believe that a construction recognizing that a “conditional

admission” is nevertheless a form of “admission” for purposes of section

237(a) of the Act would best comport with the overall structure of the statute.

To be sure, our construction effectively envisions that a refugee who

ultimately becomes a lawful permanent resident will have been “admitted”

twice—first, upon conditional admission under section 207 of the Act, and

second, upon reinspection and adjustment to permanent resident status under

section 209(a) of the Act—and that after each of those admissions, he or she

will have been subject to charges under only the deportability grounds, and not

the grounds of inadmissibility. But this notion of multiple admissions, with the

deportability grounds applying after each admission, is consistent with the

approach we have taken in other immigration contexts.

In Matter of Alyazji, we reaffirmed our prior case law to the extent it held

that aliens who enter the United States as nonimmigrants and then adjust their

status to that of a lawful permanent resident have two admissions—first at the

border on their nonimmigrant visas, and then again during the adjustment

process.5 Similarly, in Matter of Sesay, 25 I&N Dec. 431 (BIA 2011),

we addressed the situation of an alien who is admitted as a fiancé(e)

of a United States citizen under section 101(a)(15)(K) of the Act and then

5

Indeed, we reaffirmed that the statutory scheme warranted treatment of an adjustment

of status as an admission, even though an adjustment does not come within the literal

definition of the term “admission” at section 101(a)(13)(A) of the Act. See Matter

of Alyazji, 25 I&N Dec. at 399-404. In this case, the justification for treating a conditional

refugee admission as an “admission” is even stronger because such an admission comes

within the statutory definition’s reference to a lawful entry into the United States after

inspection and authorization by an immigration officer, as discussed above.

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(after marriage to the citizen) adjusts status to that of a lawful permanent

resident on a conditional basis under section 216 of the Act, 8 U.S.C. § 1186a

(2006). In each of these contexts, we treated the alien, at least implicitly,

as being subject to the deportation grounds after the first admission, as well

as the second (if it occurs at all). See Matter of Sesay, 25 I&N Dec. at 432

(noting that an alien who had been admitted as a fiancé visa holder, but who

subsequently had been denied adjustment of status, was charged with

deportability under section 237(a)(1)(B) of the Act); Matter of Alyazji, 25 I&N

Dec. at 406-07 (stating that a second admission through adjustment of status

“merely extends an existing period of presence that was sufficient in and

of itself to support the alien’s susceptibility to the grounds of deportability.”).

Furthermore, we agree with the respondent that despite the DHS’s

assertions to the Immigration Judge, Kaganovich v. Gonzales does not give the

DHS authority to charge him under section 212 of the Act. In that case,

Kaganovich, a refugee who had obtained permanent resident status, was

stopped at a port of entry as he tried to drive from Mexico back into the

United States with another alien who presented false documentation.

Kaganovich v. Gonzales, 470 F.3d at 896. Thereafter, Kaganovich was placed

in removal proceedings and was charged with alien smuggling under section

212(a)(6)(E)(i) of the Act. See section 101(a)(13)(C) of the Act. Here, the

respondent was not outside the United States attempting to reenter.

Thus, we conclude that under the language of the Act and regulations,

and also in view of the context and structure of the provisions at issue, an alien

admitted to the United States as a refugee has been “admitted” for

purposes of section 101(a)(13)(A) of the Act. Specifically, the alien has

made a lawful entry into the United States after inspection and authorization

by an immigration officer. Although after 1 year the alien must be reinspected

for admission in a different status, that of a lawful permanent resident, this

requirement does not undermine his or her initial admission as a refugee under

section 207 of the Act. Consequently, the respondent is present in the

United States pursuant to a prior admission as a refugee, and any charges in the

notice to appear must be based on the grounds of deportability under section

237 of the Act.

Initially, the notice to appear charged that the respondent was “admitted”

but removable under section 237(a)(2)(A)(iii) of the Act. However, the DHS

subsequently withdrew that charge and filed two Forms I-261 lodging charges

of inadmissibility under section 212. The Immigration Judge made alternative

findings, concluding not only that the respondent was inadmissible as charged,

but also that he was deportable under section 237 of the Act because

his conviction was categorically for an aggravated felony under section

101(a)(43)(B). However, since the respondent was not properly charged under

section 237 at the time of the Immigration Judge’s decision, the alternative

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analysis under that section was hypothetical in nature. Therefore, upon our

de novo review, we conclude that the Immigration Judge’s removability

determinations were improper, and we will sustain the respondent’s appeal

in this regard. See 8 C.F.R. § 1003.1(d)(3)(ii) (2011).

Furthermore, we recognize the Immigration Judge’s extensive analysis

regarding the respondent’s eligibility for relief from removal. However, the

respondent has not been properly charged, and his removability is a threshold

determination. As a result, we find that a remand is warranted for the DHS

to have an opportunity to amend the notice to appear and for the Immigration

Judge to further address the issues of the respondent’s removability and his

eligibility for relief. Accordingly, the respondent’s appeal will be sustained

in part and dismissed in part, and the record will be remanded for further

proceedings.

ORDER: The appeal is sustained in part and dismissed in part.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

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