Third Circuit Rejects the LIFE Act Relief for Adjustment of Status Petition upon 10-year Bar Violation
On May 24, 2011 the third circuit denied a petition for review of the BIA decision, Shireesha Reddy Cheruku v. Attorney General of the United States 10-1176, affirming denial of alien’s application to adjust status of a lawful permanent resident because she was found inadmissible under 8 U.S.C. 1182(a)(9)(B)(i)(II). The petitioner is a well-educated software engineer who is present in the United States for the past 16 years.
In this case:
Cheruku, a citizen of India, entered the United States in 1995 on a B-1visa and overstayed. After her visa expired, she accrued more than one year of unlawful presence in the US. In 1998 her employer filed a labor certification that was approved in March 1999. Her employer then filed a Petition for Alien Worker that was granted on November 29, 2000.
On December 21, 2001 Cheruku applied to adjust her immigration status to a lawful permanent resident. She applied for and was granted an advanced parole. The advance parole warned that if she accrued more than 180 days of unlawful presence subsequent to April 1, 1997 then departed the United States, she may be found inadmissible. Nevertheless, Cheruku traveled outside the US and used the advance parole to reenter the US.
On April 28, 2004 Cheruku’s application for adjustment of status was denied because her travel outside the country rendered her ten-year-bar. Her petition to reopen was denied on August 5, 2004.
Issue of law:
Ambiguous Statute
When interpreting immigration statutes, the federal court accepts the agency’s construction of the statute, when there is ambiguity and silence, even if the agency’s reading differs from what the court believes is the best statutory interpretation.
Respondent argued that the LIFE Act waived the statutory bar to admissibility. LIFE Act was enacted to permit certain aliens unlawfully present in the US to apply to adjust their statuses to that of lawful permanent residents without having to undergo consular inspection and admission abroad. Later Congress amended the law and added the provision that renders inadmissible those who are present in the US without being admitted or paroled To further complicating matters, the language of the statute also states except as otherwise provided in this chapter, aliens who are inadmissible are ineligible to be admitted to the US. The third circuit finds the language of the statutes ambiguous.
Reasonable Interpretation from BIA
The BIA held that adjustment of status under LIFE Act is unavailable to recidivist immigration violators barred from admission. See Briones, 24 I.&N. Dec. at 365. Every circuit court of appeals to review the decision has upheld it as a reasonable interpretation of the statutory scheme.
In Lemus-Losa, the BIA considered the provision that renders inadmissible any alien who has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the US. BIA held alens who are inadmissible under this provision are ineligible for adjustment of status under LIFE Act absent of the grant of a waiver. See Lemus-Losa, 24 I.&N. Dec. at 378. The third circuit affirms BIA’s interpretation of the statute reasonable.
General Inadmissibility v. Specific Inadmissibility
BIA distinguished the specific inadmissibility provision of 1182(a)(9)(B)(i)(II) from the more general inadmissibility provision of 1182(a)(6)(A)(i). The general inadmissibility provision punishes aliens who enter the country without inspection, while the specific inadmissibility provision punishes aliens who seek admission after having previously accrued a period of unlawful status. That makes it more difficult for individuals who have left the US after committing such violation to be lawfully admitted thereafter. 1182(a)(6)(A)(i) grants alien who is physically present in the US the LIFE Act relief. The Seventh Circuit held that the specific inadmissibility provision 1182(a)(9)(B)(i)(II) should be treated analogously to 1182(a)(6)(A)(i), thus specific inadmissibility provision violators should be entitled to LIFE Act relief, reasoning if someone is seeking admission to the United States on that second occasion and has thus demonstrated that he is willing to play by the rules, he is no different from the alien who is physically present in the US.
Interplay between Ten-Year Bar and LIFE Act
Under the BIA’s interpretation of the interplay between the ten-year bar and the LIFE Act, the prohibition on departure is a straightforward rule with which aliens seeking adjustment of status must comply. The LIFE Act still permits adjustment for an eligible alien who has accrued a period of unlawful presence provided he or she does not depart the US before seeking admission. Though this may lead to a harsh result, Congress has provided some relief by granting the Attorney General discretion to waive inadmissibility to accommodate family unity in certain circumstances.
The third circuit held that there is no authority supporting Cheruku’s assertion that travel on an advanced parole should be treated as if the travel never occurred. Cheruku is not eligible for any statutory waiver to inadmissibility since her adjustment application replies on her work status rather than on any family connection.
A Schizophrenic Document?
The decision not only largely disappoints the legal community, the chief judge at the third circuit wrote in his concurring opinion that the advance parole document Cheruku was given was at best a schizophrenic documentI am not at all sure that someone who is born in the United States and is fluent in English could comprehend this warning (on the advance parole). The warning first says presentation of this authorization will permit you to resume your application. That leads one to believe that Cheruku should indisputably have been able to pick up where she left off with her adjustment of status application once she returned to the US. Then the warning goes on stating you may be found inadmissible. The working will precedes may could easily mislead a person to believe that his/her adjustment of status would not be adversely affected by a departure.
In this fascinating concurring opinion , Chief Judge McKee cited Charles Dickens Oliver Twist, DHS letters to the Senators, ICE law enforcement memorandum, a case Henderson v. Mayor of City of New York decided by the Supreme Court as early as 1875, some 130 years ago. It mentions DHS August 18, 2011 on focusing its limited resources on selected group of aliens who post a threat to public safety and national security.
Yi Song, Esq.