Wednesday, October 6, 2010

Procedural Admission is Lawful for Immigration Purposes

In Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the Board considered whether the respondent was “admitted” to the United States, i.e., whether she made a “lawful entry” after inspection and authorization by an immigration officer under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(13)(A), where her admission was procedurally regular, but it was not in compliance with substantive legal requirements. The Board found that an alien need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.
In 2001, the respondent approached the United States/Mexico border as a passenger in a car being driven by her United States citizen friend. At that time, she was not in possession of a valid entry document. She testified that the immigration inspector asked her friend, the driver, whether he was an American citizen but did not ask the respondent any questions. The officer then waved the car through the port of entry. In 2005, the respondent was served with a Notice to Appear charging her with inadmissibility as an alien who entered without inspection and who had no valid entry document. The Immigration Judge found her to be inadmissible as charged and statutorily ineligible for adjustment of status because she had not been “admitted” to the United States withing the meaning of section 101(a)(13)(A) of the Act, which defines the terms “admission” and “admitted” to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”
Previously, in Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), the Board had found that the term “admitted” demanded only procedural regularity and held that an alien who physically presents herself for questioning and makes no knowing false claim to citizenship is “inspected” even though she volunteers no information and is asked no questions by the immigration authorities. Considering whether Congress intended to change this interpretation with the 1996 amendments to the Act, the Board concluded that it did not and reaffirmed Matter of Areguillin. The Department of Homeland Security agreed but argued that the respondent did not establish procedural regularity at the port of entry because she had not shown that she was admitted in a particular nonimmigrant or immigrant status. The Board rejected that contention and remanded the case for adjudication of the respondent’s adjustment application.

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