If an alien enters the U.S. with fraudulent documents and later gets married to a U.S. citizen, is he/she eligible for adjustment of status? A recent decision by the Ninth Circuit Court of Appeals said no.
The case, Orozco v. Musakey, involved Mr. Orozco who entered the U.S. in 1996 using another person’s green card. He was inspected and allowed entry into the U.S. He later met and married a U.S. citizen who filed an I-130 petition for alien relative on his behalf. Mr. Orozco applied for adjustment of status at the same time.
The I-130 was approved by the United States Citizenship and Immigration Services (USCIS) but the adjustment application was denied.
He was later placed in removal proceedings on the ground of his prior use of a counterfeit document to gain admission into the U.S.
During the removal proceedings, he filed another adjustment of status application. He also filed a waiver of his misrepresentation under Section 212 (i) of the Immigration and Nationality Act (INA) on account of extreme hardship on his U.S. citizen spouse should he be deported.
He argued that because he had presented himself for inspection and was allowed to enter, he was “inspected and admitted” and was therefore eligible for adjustment under Section 245 (a) of INA.
The immigration judge found Orozco not eligible to adjust his status because although he was inspected and allowed entry into the U.S., he was not “admitted” in the U.S. as required by law.
The Board of Immigration Appeals (BIA) affirmed the immigration judge’s decision.
The Ninth Circuit Court, on review, upheld the administrative court’s decision stating that admission into the U.S. requires “lawful entry into the U.S. after inspection and authorization”. The court ruled that mere admission into the U.S. by the use of a fraudulent document is not the “lawful admission” to the U.S. contemplated by law.
A previous BIA case, In the Matter of Areguillin, cited by Orozco in support of his application was not applicable, according to the court. In that case, the alien was considered to have been inspected and admitted when he presented himself for inspection and did not knowingly claim to be a U.S. citizen. The court held that the passage of the new law, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which clearly required lawful admission already superseded the case.
The court also ruled that while Mr. Orozco can qualify for a Section 212 (i) waiver of his misrepresentation, it would not cure his unlawful admission into the U.S.
It should be noted that Mr. Orozco could not claim the benefit of another section of the law Section 245 (i) that would have allowed him to adjust his status despite fraudulent entry into the U.S. because his I-130 petition for alien relative was filed only after the deadline for filing of petitions under that law on April 30, 2001.
The Orozco case is currently the binding law in states where the Ninth Circuit court has jurisdiction: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Marianas Islands. It is not binding in other jurisdictions.
There is no indication that the immigration judges or the Board of Immigration Appeals will follow this decision. Aliens with similar cases should consult an attorney.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at http://www.seguritan.com/