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Interim Decision #3755

Matter of C. VALDEZ, Respondent

Decided June 13, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien’s pre-November 28, 2009, admission to the Commonwealth of the Northern

Mariana Islands (“CNMI”) by the CNMI Immigration Service does not constitute

an inspection and admission or parole “into the United States” for purposes of adjustment

of status pursuant to section 245(a) of the Immigration and Nationality Act, 8 U.S.C.

§ 1255(a) (2006).

FOR RESPONDENT: Reynaldo O. Yano, Esquire, Saipan, Mariana Peninsula

FOR THE DEPARTMENT OF HOMELAND SECURITY: Chandu Latey, Assistant Chief

Counsel

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

GRANT, Board Member:

In a decision dated August 9, 2011, an Immigration Judge found the

respondent removable and denied his applications for adjustment of status

under section 245(a) of the Immigration and Nationality Act, 8 U.S.C.

§ 1255(a) (2006), and for a waiver of inadmissibility under section 212(h)

of the Act, 8 U.S.C. § 1182(h) (2006). The respondent has appealed from that

decision. This case addresses whether the respondent’s pre-November 28,

2009, admission to the Commonwealth of the Northern Mariana Islands

(“CNMI”) by the CNMI Immigration Service constitutes an admission to the

United States for purposes of adjustment of status. Because we conclude that

it does not qualify as an admission to the United States, the respondent’s

appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the Philippines. His wife, a native

of the Northern Mariana Islands, is a United States citizen. On March 21,

2002, the respondent was convicted of attempted rape in the Superior Court for

the Commonwealth of the Northern Mariana Islands and was sentenced

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Interim Decision #3755

to 5 years of imprisonment. He was most recently admitted to the CNMI

by the CNMI Immigration Service on October 13, 2007.

In removal proceedings, the respondent conceded removability and sought

to apply for adjustment of status based on an approved visa petition filed by his

wife and for a waiver of inadmissibility under section 212(h) of the Act. The

Immigration Judge denied the respondent’s application for adjustment of status

as abandoned, alternatively finding that the respondent was ineligible for

adjustment of status because he was not inspected and admitted or paroled into

the United States. The Immigration Judge also denied the respondent’s

application for a waiver of inadmissibility, finding that he was not eligible

to apply for a “stand-alone” waiver under section 212(h).

II. RELATIONSHIP BETWEEN THE UNITED STATES

AND THE CNMI

Before analyzing the precise legal issue in this case, we will briefly

examine the relationship between the United States and the CNMI. The

Northern Mariana Islands became a United States possession in the 1940s

following the invasion of Saipan, and they were part of the Trust Territory

of the Pacific Islands. See United States v. Chang Da Liu, 538 F.3d 1078,

1082 (9th Cir. 2008); see also Northern Mariana Islands v. United States, 399

F.3d 1057, 1058-59 (9th Cir. 2005) (discussing the relationship between the

United States and the CNMI); United States ex rel. Richards v. De Leon

Guerrero, 4 F.3d 749, 751 (9th Cir. 1993) (same).

In 1975, the Northern Mariana Islands and the United States entered into

a Covenant to Establish a Commonwealth of the Northern Mariana Islands

in Political Union with the United States of America (“Covenant”). See

48 U.S.C. § 1801 (2006); see also Pub. L. No. 94-241, 90 Stat. 263 (Joint

Resolution approving the Covenant (Mar. 24, 1976)); United States v. Chang

Da Liu, 538 F.3d at 1082. The Covenant established a unique political

relationship between the United States and what is now the CNMI; as a result,

the CNMI became a self-governing commonwealth in political union with and

under the sovereignty of the United States. 48 U.S.C. § 1801; see also section

101 of the Covenant. Under Article III of the Covenant, certain natives and

residents of the Northern Mariana Islands became eligible for United States

citizenship. Currently, persons born in the CNMI are United States citizens

at birth and are entitled to the same privileges and immunities as all

United States citizens. See sections 303-304 of the Covenant.

In 2008, Congress extended most provisions of the United States

immigration laws to the CNMI through the Consolidated Natural Resources

Act of 2008, §§ 701-705, Pub. L. No. 110-229, 122 Stat. 754, 853-67 (codified

in relevant part at 48 U.S.C. §§ 1806-1808 (Supp. IV 2010)) (“CNRA”).

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Interim Decision #3755

See 48 U.S.C. § 1806(a)(1). The CNRA provides for a transition period

for implementation of the United States immigration laws, beginning on

November 28, 2009, and ending on December 31, 2014. See 48 U.S.C.

§ 1806(a)(2); United States v. Yong Jun Li, 643 F.3d 1183, 1184 (9th Cir.

2011). Among the changes implemented by the CNRA is the inclusion of the

CNMI in the definition of “United States” at section 101(a)(38) of the Act,

8 U.S.C. § 1101(a)(38) (2006 & Supp. IV 2010). CNRA § 702(j)(3), 122 Stat.

at 866.

III. ANALYSIS

On appeal, the respondent argues that the Immigration Judge erred

in finding that he abandoned his request for adjustment of status and

alternatively finding that he was ineligible for adjustment. We need not

determine whether the Immigration Judge erred in finding that the respondent

abandoned his application for adjustment of status because we agree that

he is not eligible for that form of relief.

An applicant for adjustment of status pursuant to section 245(a) of the Act

must have been “inspected and admitted or paroled into the United States.”

Matter of Hashmi, 24 I&N Dec 785, 789 (BIA 2009) (discussing the

requirements for adjustment of status pursuant to section 245(a)). The terms

“admission” and “admitted” are expressly defined by the Act to mean “the

lawful entry of the alien into the United States after inspection and

authorization by an immigration officer.” Section 101(a)(13)(A) of the Act.

The term “immigration officer” refers to employees of the United States

designated to perform the functions of an immigration officer under the Act.

Section 101(a)(18) of the Act.

As the respondent recognizes, at the time of his most recent admission, the

CNMI was not included in the definition of the United States under section

101(a)(38) of the Act. See CNRA § 702(j)(3), 122 Stat. at 866; see also

United States v. Yong Jun Li, 643 F.3d at 1184 (“Prior to passage of the

CNRA, the CNMI was considered to be outside the United States for

immigration purposes.”). Moreover, he was admitted by the CNMI

Immigration Service, not by a United States immigration officer. Accordingly,

the respondent’s pre-November 28, 2009, admission to the CNMI by the

CNMI Immigration Service did not amount to an admission or parole into the

United States.1

1

Our conclusion is supported by a recent United States Citizenship and Immigration

Services (“USCIS”) policy memorandum, which, although not binding, is persuasive.

(continued...)

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Interim Decision #3755

We are not persuaded by the respondent’s argument on appeal that the

CNMI is part of the United States as a result of the 1975 Covenant. Although

they are in political union, the authority of the United States over the CNMI

pursuant to the Covenant is not absolute, and they remain distinct political

entities. For example, Congress’ legislative authority is limited by section 103

of the Covenant, which secures the right of local self-government within the

CNMI. We recognize that prior to November 28, 2009, the CNMI was

considered a part of the United States for immigration purposes in very limited

circumstances, none of which apply to this case.2 See section 506 of the

Covenant. However, absent such circumstances, the CNMI was generally

considered to be outside of the United States for immigration purposes until

the passage of the CNRA. See United States v. Yong Jun Li, 643 F.3d at 1184.

Under the CNRA, “no alien who is lawfully present in the [CNMI]

pursuant to the immigration laws of the [CNMI] on the transition program

effective date shall be removed from the United States on the grounds that

such alien’s presence in the [CNMI] is in violation of section 212(a)(6)(A)”

of the Act. 48 U.S.C. § 1806(e)(1)(A). The statute is clear that such an alien

(...continued)

See USCIS Policy Memorandum, PM-602-0013.1 (Aug. 9, 2011) (regarding “Adjudication

of Adjustment of Status Applications from Aliens Present in the Commonwealth of the

Northern Mariana Islands (CNMI) on or after November 28, 2009”). Under USCIS policy,

certain individuals lawfully present under the CNMI immigration laws prior

to November 28, 2009, or certain individuals with a CNMI work authorization prior to that

date, seeking adjustment of status are considered applicants for admission to the

United States, as described in section 235(a)(1) of the Act, 8 U.S.C. § 1225(a)(1) (2006).

Under current USCIS policy, such individuals are granted parole-in-place immediately prior

to the approval of their application for adjustment, provided they are otherwise eligible for

parole and adjustment of status. See USCIS, Dep’t of Homeland Security, Adjudicator’s

Field Manual, § 36.3(a)(4) (added Dec. 15, 2010). However, parole authority under section

212(d)(5)(A) of the Act is delegated solely to the Secretary of Homeland Security and is not

within the jurisdiction of the Immigration Judges or this Board. See 8 C.F.R. § 212.5(a)

(2012); see also Matter of Castillo-Padilla, 25 I&N Dec. 257, 261 (BIA 2010).

2

Under section 506 of the Covenant, which was repealed by the CNRA, the CNMI was

considered part of the United States for immigration purposes in certain cases involving

(1) children born abroad to United States citizen or noncitizen national parents permanently

residing in the CNMI, (2) persons who are immediate relatives of United States citizens

permanently residing in the CNMI and who were certified by the Government of the CNMI

to be lawful permanent residents of the CNMI, and (3) persons who became citizens

or nationals of the United States under Article III of the Covenant. See CNRA

§ 702(g)(1)(B), 122 Stat. at 864 (repealing section 506 of the Covenant). Although the

respondent is the immediate relative of a United States citizen, there is no evidence that

he was certified by the Government of the CNMI to be a lawful permanent resident of the

CNMI.

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Interim Decision #3755

cannot be removed from the United States on the basis of being present

without being admitted or paroled. However, contrary to the respondent’s

arguments on appeal, this exemption from removability is not the same

as an actual admission to the United States. Rather, the inclusion

of an exemption for aliens lawfully present in the CNMI suggests that

Congress did not consider such aliens to have been admitted to the

United States. In any event, the exemption only applied until the earlier

of (1) the date of the completion of the alien’s admission under the laws of the

CNMI, or (2) 2 years after the November 28, 2009, transition program

effective date. Thus, as of November 29, 2011, such aliens are no longer

exempt from removal pursuant to section 212(a)(6)(A) of the Act based

on their lawful presence in the CNMI.

IV. CONCLUSION

In light of the foregoing, we agree with the Immigration Judge that

the respondent has not been inspected and admitted or paroled into the

United States and that he is therefore ineligible for adjustment of status

pursuant to section 245(a) of the Act. We also agree with the Immigration

Judge’s determination that the respondent is not eligible to seek

a “stand-alone” section 212(h) waiver without an application for adjustment

of status, which the respondent has not meaningfully challenged on appeal.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

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