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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - HOU


126 Northpoint Drive, Suite 2020
Houston, TX 77060

Name: MUJICA, JULIO

A 090-373-986
Date of this notice: 8/28/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

borutL

(!tYlA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holiona, Hope Malia
Holmes, David 8.
Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Julio Mujica, A090 373 986 (BIA Aug. 28, 2015)

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Colon, Salvador
Salvador Colon, PC
PO Box 2951
Houston, TX 77252

, U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Date:

File: A090 373 986 - Houston, TX


In re: JULIO MUJICA

'AUG 2 8 2015

APPEAL
ON BEHALF OF RESPONDENT:

Salvador Colon, Esquire

APPLICATION: Adjustment of Status

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision, dated May 29, 2015, denying his application for adjustment of status. The appeal will
be dismissed.
We review the findings of fact made by the Immigration Judge, including the questions of
credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review
questions of law, discretion, and judgment under a de novo standard. 8 C.F.R. 1003.1 (d)(3)(ii).
The Immigration Judge pretermitted the respondent's application for adjustment of status,
finding that the respondent was not "admitted" within the meaning of section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. 1255(a), thus he is ineligible for that form of relief.
The respondent challenges this decision on appeal.
The Immigration Judge found, and the record shows, that the respondent initially entered the
United States without inspection (I.J. at 2; Tr. at 15; Exh. 1). On or about February 9, 1988, the
respondent was granted the status of temporary resident pursuant to section 245A of the Act,
8 U.S.C. 1255a (I.J. at 2; Tr. at 42). On or about May 17, 1999, the respondent's temporary
resident status was terminated by the former Immigration and Naturalization Service (I.J. at 2-3;
Exh. 3). Before the Immigration Judge, the respondent through counsel conceded that he is
removable under section 212(a)(6)(A)(i) of the Act, 8 U.S.C. l l 82(a)(6)(A)(i), as charged in
the Notice to Appear (I.J. at 1-2; Tr. at 23; Exh. I). The respondent, however, applied for
adjustment of status based on an immediate relative petition filed by his United States citizen
daughter, which has been approved by the U.S. Citizenship and Immigration Services (I.J. at 3;
Tr. at 24, 43). 1 The respondent argued that, although he initially entered the United States
without inspection or authorization, he was granted the status of temporary resident in 1988, and
that this grant constituted an "admission," rendering him eligible for adjustment of status, even
The respondent indicated that he is not eligible for adjustment of status under section 245(i)
of the Act based on the date of the visa petition filed by his daughter, or by any visa petition (I.J.
at 8; Tr. at 25, 31, 44).

Cite as: Julio Mujica, A090 373 986 (BIA Aug. 28, 2015)

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IN REMOVAL PROCEEDINGS

A090 373 986

We will first address the respondent's argument that the grant of the temporary resident
status was an adjustment of status and that an adjustment of status constitutes an "admission."
The respondent relies on Matter of Agour, 26 l&N Dec. 566 (BIA 2015), in which the Board
treated adjustment of status as an "admission" for purposes of determining an alien's eligibility
to apply for a waiver under section 237(a)(l)(H) of the Act, 8 U.S.C. 1227(a)(l)(H) (Resp.
App. Brief, at 2-3).
The respondent's argument presupposes that the grant of the temporary resident status under
section 245A of the act constitutes an "adjustment of status." However, the regulations
implementing section 245A of the Act specifically provide that an alien whose status is adjusted
to that of a lawful temporary resident under section 245A of the Act is not entitled to "any . . .
benefit or consideration accorded under the Act to aliens lawfully admitted for permanent
residence." 8 C.F.R. 245a.2(v). In contrast, the grant of a conditional permanent resident
status under section 216 of the Act confers a permanent resident status, although the status is
subject to certain conditions. Section 216(a)(l) of the Act; Matter of Paek, 26 I&N Dec. 403,
406-07 (BIA 2014). The regulations also specify that conditional permanent residents are
afforded "the privilege of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having changed." 8 C.F.R. 216.1,
1216.1; Matter of Paek, supra, at 407. Therefore, the temporary resident status under section
245A of the Act is not analogous to the conditional permanent resident status under section 216
of the Act, and the grant of a temporary resident status does not constitute an "adjustment of
status" within the meaning of the Act.
In any event, even if we were to assume, for the sake of analysis, that the grant of temporary
resident status constitutes an "adjustment of status," whether adjustment of status is considered
an "admission" may depend on the context. For example, the United States Court of Appeals for
the Fifth Circuit has held that "admission" for purposes of section 212(h) of the Act, 8 U.S.C.
1l82(h), does not include a post-entry adjustment of status. See Martinez v. Mukasey,
519 F.3d 532 (5th Cir. 2008). In the context of adjustment of status, section 245(a) of the Act
provides that aliens "inspected and admitted" may be granted adjustment of status. The Board
has held that aliens who physically present themselves for questioning and make no knowing
false claim to citizenship are "inspected" for purposes of adjustment of status. Matter of
Areguillin, 17 l&N Dec. 308 (BIA 1980); see also Matter of G-, 3 I&N Dec. 136 (BIA 1948).
The Board also held that aliens can establish that they were "admitted" within the meaning of
section 10l(a)(l3)(A) of the Immigration and Nationality Act, 8 U.S.C. l 101(a)(l3)(A), for
purposes of adjustment of status by establishing procedural regularity in their entry. Matter of
Quilantan, 25 I&N Dec. 285 (BIA 2010). Furthermore, the regulations regarding temporary
resident status, 8 C.F.R. 245a.2(v), as noted above, provide that any alien whose status is
adjusted to that of a lawful temporary resident under section 245A of the Act is not entitled to
2
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though the temporary resident status was terminated in 1999. The Immigration Judge disagreed,
found that the respondent was not "admitted' and is ineligible for adjustment of status, and
ordered him removed. On appeal, the respondent challenges this decision and argues that he was
"admitted" by the grant of the temporary resident status in 1988 and that this admission was not
nullified by the termination of that status in 1999. In this regard, the respondent argues that the
temporary resident status under section 245A of the Act is similar to the conditional resident
status under section 216 of the Act, 8 U.S.C. 1186a.

A090 373 986


any "benefit or consideration accorded under the Act to aliens lawfully admitted for permanent
residence." Therefore, both under the terms of the temporary resident status as provided in the
regulations and under the "inspected and admitted" requirement for adjustment of status, the
grant of temporary resident status to the respondent did not constitute an "admission" for
purposes of adjustment of status.

While the respondent cites no direct authority for this proposition, he suggests that the
temporary resident status is similar to the conditional resident status under section 216(c) of the
Act (Resp. App. Brief, at 3). Since an alien whose conditional resident status was terminated
may apply for adjustment of status on a different ground, the respondent argues that an alien
whose temporary resident status was terminated should be treated likewise. Matter of Stockwell,
20 I&N Dec. 309 (BIA 1991). However, the alien in that case had entered the United States as a
visitor for pleasure, Matter of Stockwell, supra, at 309, thus he was "inspected and admitted"
before he was granted the conditional resident status. Furthermore, as discussed above
conditional resident status, while subject to conditions, is a permanent resident status, while the
temporary resident status is not a permanent resident status.
Furthermore, although this case arises within the United States Court of Appeals for the Fifth
Circuit, the United States Court of Appeals for the Ninth Circuit held that termination of
temporary resident status operated to revoke any prior "admission." United States v. Hernandez
Arias, 745 F.3d 1275, amended and superseded by U.S. v. Hernandez-Arias, 757 F.3d 874
(9th Cir. 2014).3 The court reasoned that "[p]ursuant to 8 C.F.R. 245a.2(u)(4), '[t]ermination
of the status of any alien previously adjusted to lawful temporary resident under section 245A(a)
of the Act shall act to return such alien to the unlawful status held prior to the adjustment, and
render him or her amenable to exclusion or deportation proceedings under section 236 or 242 of
the Act, as appropriate."' Thus, once the alien's temporary resident status was terminated, he
"automatically reverted to his prior unlawful, unadmitted status." Id. at 1282 (emphasis added).
The Ninth Circuit also noted that, to hold that the termination of temporary resident status does
not negate any "admission" (as the respondent argues in this case) would effectively nullify the
This argument presupposes that the grant of the temporary resident status in 1988 constituted
an "admission" and rendered the respondent eligible for adjustment of status. While we disagree
with this presupposition as noted above, we will address this argument as an additional basis for
our decision.

In Hernandez-Arias, the Ninth Circuit did not decide the question of whether adjustment to
temporary resident status constituted an admission because, even if it did, termination of that
status operated to revoke any prior admission. Hernandez-Arias, supra, at 1282.
3

3
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We will next address the respondent's argument that he remains "admitted" even though his
temporary resident status was terminated in 1999.2 As the respondent admits, the termination of
his temporary resident status reverted him back to his former status under 8 C.F.R.
245a.2(u)(4). Nevertheless, the respondent argues that the termination did not negate or nullify
the fact that he was admitted in 1988, thus his "admission" remains valid and unaffected (Resp.
App. Brief, at 4).

Ao9o 313 986

Based on the above, we will uphold the Immigration Judge's decision denying the
respondent's application for adjustment of status, and we will dismiss the respondent's appeal.
ORDER: The appeal is dismissed.

FOR THE BOARD

4
Cite as: Julio Mujica, A090 373 986 (BIA Aug. 28, 2015)
(.444

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language of 8 C.F.R. 245a.2(u)(4). United States v. Hernandez-Arias, supra, at 1282. We find


the Ninth Circuit's reasoning and conclusion in United States v. Hernandez-Arias persuasive.
Based on the reasons set forth in United States v. Hernandez-Arias, supra, we conclude that, if
and to the extent the grant of the temporary resident status were to be construed as an
"admission," such admission was revoked and the respondent returned to his prior unadmitted
status upon the termination of the status in 1999. Therefore, the respondent is not eligible for
adjustment of status.

May 29, 2015

File: A090-373-986
In the Matter of

IN REMOVAL PROCEEDINGS

JULIO MUJICA
RESPONDENT

CHARGES:

Section 212(a}(6)(A)(i) Immigration and Nationality Act, as


amended.

APPLICATIONS:

Adjustment of status pursuant to Section 245@.}A of Immigration


and Nationality Act, as amended.

ON BEHALF OF RESPONDENT: SALVADOR COLON


ON BEHALF OF OHS: RORY H. POTTER Esq.R

ORAL DECISION OF THE IMMIGRATION JUDGE


I. INTRODUCTION
On February 23, 2015 the Department of Homeland Security (OHS) filed a
Notice to Appear (NTA) against respondent charging him with being removable
pursuant to the above captioned section of the Immigration and Nationality Act (INA or
Act), as amended.
Removability is not at issue in this matter. On April 13, 2015.i. respondent
admitted the factual allegations and conceded removability as set forth in the NTA. The

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
HOUSTON, TEXAS

Mexico as the country of removal and thereafter identified adjustment of status pursuant
to Section 245.(filA of the Act as his form of relief. In that regard he claimed that he is a
beneficiary of an approved immediate relative petition filed by his United States citizen
daughter. It is respondent's eligibility for adjustment of status that is at issue.
_____For the reasons set forth below, the Court will pretermit and deny
respondent's application for adjustment of status.

II. SUMMARY OF THE EVIDENTIARY RECORD


( Formatted: Underline

A. ..Documentary evidence
The record in this case consists of the exhibits listed below.
Exhibit 1 is the NTA dated February 18, 2015.
Exhibit 2 is the B,record of Qaeportable/linadmissible A-alien, Form 1-213.
Exhibit 3 is the OHS notice of termination of respondent's temporary
residence.
Exhibit 4 is the OHS notice of denial of respondent's affirmative application
for adjustment of status.
Exhibit 5 is an excerp of an unpublished decision submitted by OHS.

. . ( Formatted: Underline

B. ..Factual background
Respondent is a 54-year-old native and citizen of Mexico. He arrived in
the United States at an unknown place on an unknown date without having been
admitted or paroled after inspection by an ilmmigration .QGfficer. On or about February
9, 1988, he was granted temporary residence pursuant to Section 245A of the Act
following his unauthorized arrival in the United States. On or about May 17, 1999 his-s
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Court therefore sustained the sole ground of removability. Respondent designated

became the beneficiary of an immediate relative petition filed by his United States
citizen daughter. That petition was approved, and on January 22, 2014 respondent filed
an affirmative application for adjustment of status based upon that petition. On October
1, 2014J. OHS denied the adjustment application. Exhibit 4.

Ill. RESPONDENT'S INELIGIBILITY FOR ADJUSTMENT OF STATUS


Section 245 of the Act provides that the Attorney General may in her
discretion adjust the status of an alien "inspected and admitted or paroled into the
United States" to that of an alien lawfully admitted for permanent residence if the alien
applies for adjustment, the alien is eligible to receive an immigrant visa, and is
admissible to the United States for permanent residence, and an immigrant visa is
immediately available. INA 245A. The alien bears the burden of establishing
eligibility for adjustment of status and demonstrating that relief is merited in the exercise
of discretion. See Matter of Ibrahim, 18 l&N Dec. 55 (BIA 1981); Matter of Cavazos, 17
l&N Dec. 215 (BIA 1980).
In this case, respondent's application for adjustment of status is based on
an immediate relative visa petition filed on his behalf and which has been approved. At
issue is whether the respondent is eligible for adjustment of status under Section
245.{filA of the Act. He argues that he does qualify for such relief because he was
inspected and admitted to his country at the time he was accorded temporary
permanent residence post-entry under Section 245A of the Act.
The terms "admitted" and "admission" are defined by the Act to mean "the
unlawful entry of the alien into the United States after inspection and authorization_-by
an i!mmigration QGfficer." INA 101(a)(13)(A). The definition is considered to be
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temporary resident statustaws was terminated by OHS. Exhibit 3. Respondent then

Matter of Quilantan, 25 l&N Dec. 285, 290 (BIA 2010) . The plain language of Section
101 (a)(13)(A) of the Act refers to the manner of entry into this country, that is, a lawful
entry after inspection and authorization. While the Board of Immigration Appeals
(Board) has acknowledged that adjustment of status does not fit within the statutory
definition of the term "admission" set forth at Section 101(a)(13)(A) of the Act, it has
treated adjustment as an admission in order to preserve the coherence of the statutory
scheme and to avoid absurdities. Matter of Chavez-Alvarez, 26 l&N Dec. 274 (BIA
2014) (listing cases). For instance, in Matter of Rosas-Ramirez, 22 l&N Dec. 660 (BIA
1999) the Board found that the phrase "after admission" in Section 237(a)(2)(A)(iii) of
the Act includes an alien admitted at the time of entry under Section 101(a)(13)(A) and
an alien who entered without inspection and was subsequently admitted as a lawful
permanent resident. See also Matter of Alyazji, 25 l&N Dec. 397, 408 & n.9 (BIA 2011)
(explaining that for purposes of Section 237(a)(2)(A)(i), the "date of admission" is the
date of adjustment of status if the respondent adjusted status after entering the United
States without inspection); Matter of Carrillo, 25 l&N Dec. 99 (BIA 2009) (holding that
when determining whether an alien_'s status whose status was adjusted pursuant to the
Cuban Adjustment Act is removable as an alien who has been convicted of a crime
involving moral turpitude committed within five years after the date of admission, the
admission is calculated according to the rollback provision of Section 1 of the Cuban
Adjustment Act, rather than the date that adjustment of status was granted}; Matter of
Rodarte, 23 l&N Dec. 905, 908 (BIA 2006) (holding that adjustment is an admission for
purposes of Section 212(a)(9)(B)(i)(II} of the Act; Matter of Shanu, 23 l&N Dec. 754,
756-57 (BIA 2005) (holding that adjustment is an admission for purposes of Section
237(a)(2)(A)(i)), pverruled in part by Matter of Alyazji, 25 l&N Dec. 397-98. In Matter of
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_ , . [ Formatted: Underline

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procedural in nature rather than in conformity with substantive legal requirements. See

residence required for relief under Section 240A of the Act commences when the alien
has been "admitted in any status," which includes admission as a temporary visitor.
For purposes of establishing eligibility for adjustment of status under
Section 245.{filA of the Act, the Board has held that an alien seeking to show that he
has been admitted to the United States pursuant to Section 101(a)(1 3)(A) of the Act, the
applicant need only prove procedural regularity in his entry, which does not require the
alien to be questioned by Hmmigration authorities or be admitted in a particular status.
Matter of Quilantan, 25 l&N Dec. 285; Matter of Arequillin, 17 l&N Dec. 308 (BIA 1980),
, . [ Formatted: Underline

reaffirmed.
On May 1 7, 2015J. the Board held that adjustment to lawful permanent
residence on a conditional basis constitutes an admission for purposes of determining
the alien's eligibility to apply for a fraud waiver under Section 237(a)(1)(H) of the Act.
See Matter of Aqour, 26 l&N Dec. 566 (BIA 2015). The Board distinguished Matter of
Connelly, 19 I&N Dec. 156 ( BIA 1994), in which it found that the predecessor waiver
under former Section 241(f) was related to waiving fraud and misrepresentation in
connection with an alien's entry into the United States, not fraud in connection to the
alien's adjustment of status. In relevant part, the Board looked to other provisions with
Section 101(a)(13)(A), a 1996 provision of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) and observed that Congress specified that certain alien
parolees cannot be considered to have been admitted pursuant to Section
101 (a)(13)(B). The Board reasoned that because Congress did not include aliens who
adjusted their status while in the United States in Section 101 (a)(13)(A) of the Act, the
provision does not preclude them from being deemed admitted. Matter of Aqour, 26
l&N Dec. 572 . Moreover, the Board found support for finding that an adjustment of
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-,,.d o.:JL1::::.c

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JJ.4J

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Perez, 22 l&N Dec. 689 (BIA 1999), the Board found that the period of continuous

alien lawfully admitted for permanent residence as defined in Section 1 0 1 (a)(20), shall
not be regarded as seeking an admission to the United States unless certain criteria are
met. Matter of Aqour, 26 l&N Dec. 566 (BIA 201 5). The Board also concluded that
Section 245fbl treats an adjustment under Section 245@).A of the Act as substantially
equivalent to an admission to pursuant to sm_immigrant visa or g__YAlawful admission for
permanent residence. lg. at 573.
The United States Court of Appeals for the Fifth Circuit, in whoseiGA
jurisdiction this case arises, has relied on the definition of an "admission" in Section
1 01 (a)(1 3)(A) of the Act in finding that a post-entry adjustment of status does not
constitute an admission for relief purposes. See Martinez v. Mukasey, 5 1 9 F.3d 532
(5th Cir. 2008). In Martinez v. Mukasey, the Fifth Circuit interpreted an admission under
Section 1 0 1 (a)(1 3)(A) to mean the lawful entry of an alien after inspection "something
quite different, obviously, from post-entry adjustment of status." Id. at 544. The Court
observed that Sections 245 and 245A provide the requirements for adjustment of status
to lawful permanent residentbP-R- status and adjustment as a procedure by which an
alien becomes a lawful permanent resident without having to first leave-eAtef the
country. Martinez v. Mukasey, 5 1 9 F.3d at 546. The Court rejected the contention that
an adjustment constitutes being "admitted" pursuant to the statute for the purpose of
determining eligibility under Section 2 1 2(h).
On May 2 1 , 201 5, the Fifth Circuit decided in Tula-Rubio v. Lynch, that a
respondent who wasi& accorded lawful permanent residence through adjustment of
status satisfiedf::la& the seven-year continuous residence requirement for cancellation of
removal for certain permanent residents because the respondent was waived through a
border crossing, which the Court construed as an admission in any status. Tula-Rubio

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status isi4:IAlawful admission in Section 1 01 (a)(1 3)(C) of the Act, which states that an

wais whether a wave-through entry is an "admission in any status" to meet the


requirements in Section 240A(a)(2) of the Act. As in Martinez Mukasey, the Fifth Circuit
found that the word "admitted" is defined by Section 101(a)( 1 31(A) of the Act as "the
lawful entry of the alien into the United States after inspection and authorization_-by an
ilmmigration QGfficer. n The Court employed that definition of "admitted" in determining
the meaning of the larger phrase "admitted in any status." Tula-Rubio v. Lynch, 2015
W.L. 2434832 at 5. According to the Fifth Circuit, to be "admitted in any status" the
alien must have lawfully entered the United States. Id.
In this case, respondent was granted temporary resident status under the
legalization or amnesty provisions of the Immigration Reform and Control Act of 1 986.
The legalization program provided a process by which aliens initially eligible would be
brought within the fold of lawful permanent residence in two steps. An alien who is
eligible for temporary residence is ordinarily eligible in due course for permanent
residence. Under the regulations promulgated pursuant to the statute, an alien who
.iwas granted temporary residence must apply for permanent residence within 43
months, or his temporary resident status will befU ae-terminateQEi. An alien granted
temporary residence is 1:1ltimately eligible for admission as a permanent resident. INA
Section 245A(b); 8 C.F .R. 245a.f3).
At best, respondent only obtained the status of a temporary resident in this
case. His receipt of temporary resident status did not cure his unlawful presence. His
temporary resident status was just that..::._,temporary. Thate temporary residents
pursuant to Section 245A of the Act are to be considered as being in lawful status
during the duration of the gran.t_t purs1:1ant to Section 24 a.A. of the /\ct does not mean
that they were lawfully admitted or paroled prior to obtaining the temporary status. To
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v. Lynch, -: F.3d :- 201 5 W.L. 2434832 (5th Cir.Fifth Circ1:1it May 21 , 201 5). At issue

application amounted to an adjustment in his status such that he was admitted after
inspection pursuant to Section 101(a)(13)(A), such an argument fails. The Board has
held that to seek adjustment of status pursuant to Section 245.{filA of the Act, the
adjustment applicant must demonstrate, inter aliaamong other things, that he has been

. [ Formatted: Font: Italic

"admitted" to the United States, as that term is defined by Section 101 (a)(13)(A) of the
Act. See 8 C.F. R. 1245.1(b)(3); Matter of Quilantan, 25 l&N Dec. 285. An
"admission" means tRat-the lawful entry after inspection as that term is defined Q.Y.
section 101(a)(13)(A}, and not a subsequent adjustment to legal status after the alien's
arrival in this country. This issue is whether the respondent was "inspected and
admitted" into the United States. INA 245.{filA. Respondent has failed to demonstrate
that at the time of his entry into the United States he was then "inspected and admitted
or paroled inspected and admitteet or paroled by an iknmigration QGfficer:._. Respondent
was not "inspectea and admitted" as required for adjustment of status under Section
245.{filA of the Act.

}LThe respondent does not maintain, nor does the record contain

any persuasive evidence establishing he is the beneficiary of a visa petition filed on or


before April 30, 2001. The respondent, accordingly, is also ineligible to adjust status
under Section 245(i) of the Act.
Additionally, while the evidence submitted by DHS shows that respondent
applied for temporary resident status under Section 245A of the Act and was granted
such status, it also establishes that respondent's temporary residence was terminated.
Exhibit 3. Termination of the status of any alien previously adjusted to lawful temporary
residence under Section 245A(a) of the Act "shall act to return such alien to the unlawful
status held prior to the adjustment, and render him or her amenable to exclusion or
deportation proceedings-:-:-.:..:.:.. ," 8 C.F.R. 245a.2(u)(4). The termination of respondent's
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. . ( Formatted: Underline

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the extent that respondent claims that the approval of his temporary permanent resident

temporary residence. Under the circumstances presented, the termination of temporary


residence is sufficient to render respondent subject to the inadmissibility provision of
Section 2 1 2(a)(6)(A)(i) of the Act because he has not established that he had a prior
entry to the United States involving lawful admission after inspection. Even if his
adjustment to temporary resident status qualified as an admission, termination of that
status operates to revoke any prior admission and he automatically reverted to his prior
unlawful, unadmitted status. 8 C . F.R. 245a.2(u)(4) . The applicable regulation at 8
C.F.R. 245a.2 describes a form ofeF status with no lasting Hmmigration benefit. It
provides that an alien whose status is adjusted to that of lawful temporary residence
under Section 245A is not entitled to any benefit accorded under the Act to aliens
lawfully admitted for permanent residence. 8 C . F.R. 245a.2(yb). Were respondent's
adjustment to temporary residence to remain in effect despite termination of his status,
he would not return to the unlawful status he held prior to his adjustment. 8 C . F . R.
245a.2(u)(4); see also ,e.g . U.S. v. Hernandez-Arias, 757 F.3d 874 (9th Cir. 201 4).
Respondent's arrival in this country without admission or parole after
inspection and his statutory ineligibility for adjustment of status pursuant to Section
245(i) 1 of the Act lead this Court to pretermit and deny his application for adjustment of
status. For the reasons stated, a grant of temporary residence pursuant to Section
245A post-entry does not constitute an admission that satisfies the threshold
requirement of Section 245(a) of the Act, which requires an applicant be "inspected and
admitted: or paroled: into the United States. I NA 245(a). Even so, the applicable

_Respondent does not argue nor has he shown that he is eligible to seek adjustment of status
pursuant to Section 245(i) of the Act. In that regard there is no showing that respondent's daughter or any
other petitioner filed a qualifying petition prior to that provision's sunset date, that is April 3 0, 200 1 .
1

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temporary residence served to return him to the same status he held prior to his

Formatted: Font: Times New Roman, 11 pt,


Complex Script Font: 11 pt
Formatted: Font: Times New Roman, 11 pt,
Complex Saipt Font: 1 1 pt

be considered as having returned to the unlawful status he held prior to his adjustment.

[
. , . Formatted: No underline

V. CONCLUSION AND ORDERS

For the reasons discussed, the following orders shall enter:


IT IS HEREBY ORDERED that respondent's application for adjustment of
status pursuant to Section 245(a) of the Act is pretermitted and denied.
IT IS FURTHER ORDERED that respondent shall be removed to Mexico
on the charge contained in the Notice to Appear dated February 1 8, 201 5.

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A090-373-986

LISA LUIS
Immigration Judge

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May 29, 20 1 5

Immigrant & Refugee Appellate Center, LLC | www.irac.net

regulation also indicates that once temporary residence is terminated, respondent must


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Immigration Judge LISA LUI S
LuisL o n July 1 5 , 2 0 1 5 a t 1 2 : 4 0 AM GMT

A090-373-986

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May 29, 2015