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BIA: Admitted person must be charged as deportable

The BIA held that a noncitizen who was admitted into the United States must be charged as deportable rather than inadmissible to be properly placed into removal proceedings. Matter of D-K-, 25 I&N Dec. 761 (BIA April 12, 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s opinion.

This case involved an individual who was admitted into the U.S. as refugee. He was denied adjustment of status, then convicted of distributing cocaine within 1,000 feet of a school. On the basis of this conviction, DHS initiated removal proceedings. After first charging the noncitizen as deportable under INA § 237(a)(2)(A)(iii), the aggravated felony provision, DHS withdrew that charge and claimed that he was removable as inadmissible under INA § 212. Matter of D-K-, 25 I&N Dec. at 762. After the IJ found him inadmissible and denied him relief from removal, the noncitizen appealed to the BIA claiming, in addition to other grounds, that he was not subject to inadmissibility proceedings because he had been admitted. Matter of D-K-, 25 I&N Dec. at 762.

After discussing the term “admitted” in some detail as it pertains to refugees, the Board concluded that the noncitizen was admitted. As such, he could be deported under INA § 237 but not excluded under INA § 212. According to the BIA, the “conditional admission” granted to refugees is an “admission” for removal purposes. Matter of D-K-, 25 I&N Dec. at 768-769. It came to this determination in part to avoid having refugees in the U.S. with the federal government’s permission but in an ambiguous legal limbo outside the two recognized statuses for legal presence: admitted or paroled. Matter of D-K-, 25 I&N Dec. at 768.

The Board acknowledged that its position means that refugees might be admitted multiple times—once upon entering the U.S. and again upon adjusting to LPR status. Matter of D-K-, 25 I&N Dec. at 768. That’s not problematic, however, because many people do just that—non-immigrants, for example, are undeniably admitted upon entering the country, then admitted again if they adjust.

Because the noncitizen was admitted into the country as a refugee, the IJ improperly concluded that he was inadmissible. Moreover, the IJ lacked authority to conclude that he was deportable since DHS withdrew that charge. Matter of D-K-, 25 I&N Dec. at 769. Accordingly, the BIA remanded to allow DHS to amend the Notice to Appear. Matter of D-K-, 25 I&N Dec. at 770.

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Posted by César on March 12, 2013 on 9:00 am 24 Comments
Filed Under: admission, Board of Immigration Appeals, burden

Comments

  1. Linus says

    March 12, 2013 at 5:19 pm

    This decision was important in multiple ways. For one, it clarified “conditional admission” an old by product of refugee admission that was based on conditional parole. (DK putting the nail in the coffin on conditional admission from Matter of Garcia-Alzugaray and the various subsequent AG opinions and legal intepretations). However, there is an inherent conflict with DK and INA .” INA 209(a)(1)(C) as that provision seems to continue to allow removal of “unadjusted” refugees, who are inadmissible.
    The provision reads, “(C) who has not acquired permanent resident status, shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security 2/ for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections 235 , 240 , and 241 .”

    The reference to 235 (expedited removal) 240 (removal) and 241 (post removal) continues to cause confusion as unadjusted refugees were being placed in detention, often without any other ground of deportation. This particular report of detention of refugees, http://www.hrw.org/sites/default/files/reports/refugees1209webwcover.pdf

    and several habeas lawsuits had not met with success.

    The implication of DK with 209(a)(1)(C) has to be that detention and removal must still meet the basic requirements of removal under 240 (deportable if admitted), however, the “shall” language of the statutory provision remains a sticking point.

    The obviously difficult scenario, would be an unadjusted refugee, who is not deportable, but who IS inadmissible, but not able to waive their inadmissibility under 209(c). These cases are admittedly few as 209(c) waivers are broad and only seriously limited by agg felonies which are deportable offenses. But at that point there would be refugees who cannot be removed, but cannot be adjusted which is likely contrary to the vision of refugee adjustment set forth by Congress.

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