BIA: Cuban adjustment of status constitutes admission for § 237 removal purposes

The BIA held that an individual whose status was adjusted from parolee to lawful permanent resident pursuant to the Cuban Refugee Adjustment Act of 1966 was dmitted for purposes of removal under INA § 237(a). Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011) (Grant, Malphrus, and Mullane, Board members). Board member Grant wrote the panel’s decision.

This case involves a Cuban citizen who was paroled into the United States and adjusted his status under the CRAA (often referred to as the Cuban Adjustment Act or CAA). Guillot subsequently was convicted of trafficking in cannabis and charged with being removable for having been convicted of a controlled substances offense, INA § 237(a)(2)(B)(i), and an aggravated felony, INA § 237(a)(2)(A)(iii).

Because § 237(a) applies only to individuals “in and admitted to the United States,” the IJ was required to determine whether Guillot’s adjustment pursuant to the CAA constituted an admission. The IJ determined that Guillot had not been admitted and, therefore, he was not subject to removal under § 237(a). Matter of Espinosa Guillot, 25 I&N Dec. at 653.

To reach this conclusion, the IJ relied on the U.S. Court of Appeals for the Eleventh Circuit’s holding that an individual whose status was adjusted to permanent residence was not barred from seeking a waiver of inadmissibility under INA § 212(h). Lanier v. U.S. Attorney General, 631 F.3d 1363, 1365-66 (11th Cir. 2011). Borrowing from the Fifth Circuit’s decision in Martinez v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008), the Lanier Court held that the § 212(h) bar that applies to an individual “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,” does not apply to an individual who obtained LPR status through adjustment. Lanier, 631 F.3d at 1365-66.

The BIA did not disagree with the Eleventh or Fifth Circuits’ reasoning in those cases. It did, however, explain that their reasoning is limited to the language of § 212(h). (I previously wrote about another BIA decision limiting the scope of Martinez). In doing so, the Board distinguished the language of the Cuban Adjustment Act. In contrast to the language of § 212(h), “the plain language of the [CAA] provides that an alien who has not otherwise been admitted may be deemed admitted for permanent residence by operation of adjustment of status.” Matter of Espinosa Guillot, 25 I&N Dec. at 655.

Accordingly, the BIA reversed the IJ’s determination: “we hold that the respondent was admitted to the United States and was therefore properly charged with removability under section 237(a) of the Act.” Matter of Espinosa Guillot, 25 I&N Dec. at 656.