This post covers two recent cases involving how illegal acts can undermine an immigrant’s lawful permanent resident status.  In the first case, a 9th Circuit decision, the Court considered the immigration status and burdens of proof when a lawful permanent resident (“LPR”) left the United States and tried to reenter after allegedly committing a crime of moral turpitude.  The second ruling, this one from the U.S. Supreme Court, considered whether immigrants who are in the U.S. under Temporary Protective Status can adjust to legal permanent residency if they enter the U.S. illegally.  In both cases, the rulings were adverse to the immigrants.

In Romero v. Garland, No. 15-72947 (9th Cir. 2021), Rogelio Vazquez Romero, a Legal Permanent Resident (“LPR”), traveled to Mexico in 2018. When he returned, the Custom Border Patrol (“CBP”) discovered that he had an outstanding warrant in the United States that was possibly for a crime of moral turpitude.  Generally, under 8 U.S.C. § 1101(a)(13)(C), LPRs are not regarded as aliens seeking admission except in five situations, one of which is that the alien has committed an offense enumerated in section 1182(a)(2), and one of those listed offenses is a crime involving moral turpitude.  8 U.S.C. § 1182(d)(5) gives the Attorney General the discretion to parole into the U.S. any alien applying for admission, so the CBP paroled him into the country for prosecution.  After being paroled into the United States, Romero pled guilty to the petty theft charges and, because of his status as a paroled “alien seeking admission,” the government initiated removal proceedings against him.

Romero moved to terminate the proceedings, arguing that he should not have been paroled into the country but rather should have been allowed to enter the country as a returning LPR.  He claimed that, because at the time of entry at the border, the government had only issued a warrant for an offense involving petty theft, that it had not met its burden of proving that he had committed a crime involving moral turpitude.  The Board of Immigration Appeals rejected that argument.

On appeal, the Ninth Circuit considered two questions.  First, it considered whether the government is required to meet its burden of proof by clear and convincing evidence that one of the exceptions to § 1101(a)(13)(C) applied at the time entry into the United States.  It upheld the BIA’s decision, finding that the government may exercise discretion in paroling a retuning LPR into the United States for prosecution and is only required to meet it burden of proof in subsequent removal proceedings if any ensue.  Second, the Court considered whether the government can rely on a conviction obtained after the LPR is paroled into the United Stated but before the LPR is placed in removal proceedings and found that the government can use post-entry convictions as evidence to carry its burden of proof in removal proceedings.  The Court thus found that Romero was properly charged with inadmissibility based on the evidence of his conviction for petty theft.

In Sanchez v. Mayorkas, 141 S.Ct. 1460 (2021), the Supreme Court considered whether an alien who had been granted Temporary Protective Status (“TPS”) could apply for adjustment to legal permanent residency after entering the country illegally.   Sanchez, a citizen of El Salvador, entered the U.S. unlawfully in 1997. In 2001, he was granted TPS. The TPS program allows foreign nationals of a country designated by the Government as having unusually bad or dangerous conditions to live and work in the U.S. while those conditions last. In 2014, Sanchez applied to obtain LPR status under §1255, which provides an avenue for foreign nationals lawfully present in the U.S. on a temporary basis to obtain an adjustment of status to LPR. The USCIS determined Sanchez ineligible for LPR status because he entered the U.S. unlawfully.

In a unanimous decision, the Court found the language of the statute was clear.  Section 1255 for adjustment to LPR status requires an admission into the U.S. (lawful entry into the U.S. after inspection and authorization by an immigration officer).  As Sanchez did not enter the U.S. lawfully, his TPS status did not help him meet §1255’s separate admission requirement. Lawful status and admission are distinct concepts in immigration law, and establishing one does not establish the other. Additionally, an admission is not a prerequisite of nonimmigrant status, and there are several nonimmigrant status categories without admission. Thus, when an applicant has nonimmigrant status for purposes of §1255 but does not meet a separate requirement of an admission, there is no basis for ruling an unlawful entrant eligible to become an LPR.  The court found that Sanchez could not become a legal permanent resident of the United States.

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