General Counsel Opinion on 245(i)
CO 245(i)
CO 212(a)(6)(A)
Date: February 19, 1997
TO: Michael L. Aytes
Assistant Commissioner
Office of Benefits
FROM: Office of the General Counsel
ATTN: Pearl Chang
Chief, Residence and Status Services Branch
Subject: Request for Legal Opinion: The Impact of the 1996 Act on Section 245(i) of the Act
Background
On September 30. 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 208 (the "IIRAIRA" into law. The IIRAIRA created several new grounds of inadmissibility, including a new section 212(a)(6) of the Immigration and Nationality Act, as amended (the "Act"). See Section 301(c)(1) of the IIRAIRA. Under new section 212(a)(6)(A) of the act, effective April 1, 1997, "[e]xcept as otherwise provided in th[e] Act," most aliens who are "present in the United States without being admitted or paroled," will be deemed to be inadmissible to the United States. Such persons are now, and will be after April 1, 1997, ineligible to adjust status to permanent resident under section 245(a) of the Act, since they have not, or will not have been. "inspected and admitted or paroled into the United States." Under section 245(i)(I)(A) of the Act, which was not amended by IIRAIRA, these aliens, if otherwise ineligible, will continue to be specifically permitted to apply for adjustment of status under section 245(i)(I) of the Act. To establish eligibility to adjust under section 245(i) of the Act, most such persons must, among other things, pay a significant filing fee surcharge. See section 245(i)(1) of the Act. In addition, as was the case prior to the enactment of IIRAIRA, all section 245(i) adjustment applicants must continue to be "admissible" to the United States. See section (i)(2)(A) of the Act.
In light of these recent statutory developments, your office has asked us to determine what effect, if any, new section 212(a)(6)(A) of the Act will have on the ability of aliens who entered the United States without inspection to adjust status under section 245(i) of the Act.
Question Presented
Will aliens who are present in the United States after having entered without inspection continue to be eligible to apply for adjustment of status under section 245(i) of the Act after April 1, 1997, the effective date of new section 212(a)(6)(A) of the Act?
Summary Conclusion
Yes. Under section 245(i)(1)(A) of the Act, otherwise eligible aliens who entered this country without inspection and who seek to adjust status under section 245(i) of the Act will continue to be admissible after April 1, 1997. Such persons therefore may continue to apply for adjustment of status under section 245(i) of the Act through September 30, 1997. The Service should adjudicate to completion and such timely filed adjustment applications, even if a final decision on the application cannot be made until after the September 30, 1997 sunset date of section 245(i) of the Act.
Discussion
Section 245 of the Act
Under section 245(a) of the Act, the Attorney General may adjust the status of an alien to permanent resident only if the alien was, among other things, "inspected and admitted or paroled into the United States." An alien who entered the United States without inspection is therefore ineligible to apply for adjustment of status under section 245(a) of the Act. Section 245(i)(1)(A) of the Act, however, provides that, notwithstanding section 245(a) of the Act, "an alien physically present in the United States who ... entered the United States without inspection" may apply for adjustment of status to lawful permanent resident. Section 245(i)(2) of the Act, in turn, authorizes the Attorney General to adjust the status of such an alien if, among other things, the alien pays the requisite application fee, including in most cases, a substantial surcharge, and is "admissible to the United States for permanent residence." Under current law, applicable until April 1, 1997, an alien who is present in the United States after having entered without inspection is not deemed to be excludable. See Matter of Pierre, 14 I&N Dec. 467 (BIA1973)
4. Since an alien who is not excludable is, by definition, "admissible," it is clear that, under current law, an alien who is present after entry without inspection may, if otherwise eligible, adjust status under section 245(i) of the Act.
New Section 212(a)(6)(A) of the Act
New section 212(a)(6)(A) of the Act, however, provides (emphasis added);
(a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR ADMISSION. -
Except as otherwise provided in the Act, ...
(6) ILLEGAL ENTRANTS AND IMMIGRATION VIOLATORS. -
(A) ALIENS PRESENT WITHOUT ADMISSION OR PAROLE
(i) IN GENERAL. - An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
As a result of the enactment of this statutory provision, and the continued applicability of the "admissibility" requirement under section 245(i)(2)(A) of the Act, it has become necessary to determine whether, after April 1, 1997, aliens present in the United States without inspection will continue to be eligible to apply for adjustment of status under section 245(i) of the Act.
In making this determination, the primary question for us to decide is whether section 245(i)(1)(A) of the Act comes under the ambit of the "otherwise provided" savings clause of section 212(a) of the Act. We find it significant to our analysis that the savings clause to section 212(a) of the Act contains no requirement that another section of the Act specifically provide that an illegal entrant is exempt from the new ground of inadmissibility. By contrast, in enacting other sections of the Act, when Congress has intended such specificity, it has expressly imposed this requirement. See e.g. section 101(a)(38) of the Act ("except as otherwise specifically herein provided"); section 245A(h)(1) of the Act ("[u]nless specifically provided by this section or other law"). We may reasonably infer from this that, had Congress intended to require the same specificity with respect to exempting entrants without inspection from inadmissibility, it would have done so. See e.g, Russello v. United States, 464 U.S. 16, 23 (1983); Florida Publio Telecommunication s Ass'n v. F.C.C., 54 F.3d 857, 860-61(D.C. Cir. 1995). We therefore conclude that, in the absence of such a specificity requirement in section 212(a), we are not precluded from finding, if otherwise warranted, that Congress intended otherwise eligible entrants without inspection to be "admissible" for the purpose of adjusting status under section 245(i) of the Act, despite the lack of specific language in section 245(i) to this effect.
We now turn to the language of section 245(i)(1)(A) of the Act, which expressly provides that "an alien physically present in the United States who ... entered the United States without inspection ... may apply to the Attorney General for adjustment of his or her status" to permanent resident under section 245(i)(2)(A) of the Act. Among other things, such an alien must be "admissible." See section 245(i)(2)(A) of the Act. As is evident from this "admissibility" requirement, section 245(i)(1)(A) is not self-executing with respect to whether an illegal entrant is admissible for purposes of adjusting status under section 245(i) of the Act. Absent the savings clause in section 212(a)(6)(A) of the Act, we would therefore be required to conclude that, except for a limited number of battered spouses and children, aliens described in new section 212(a)(6)(A) of the Act are ineligible to adjust status under section 245(i) of the Act. With the savings clause, however, there is no such absolute bar to admissibility, and we are required, under basic rules of statutory construction, to construe the savings clause of section 212(a), as well as the language of section 245(i) of the Act, "so as to give effect to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant." See 2B N. Singer, Sutherland. State Const., sec. 46.06 at 119-20 (5th ed. 1992).
Under the plain language of section 245(i)(1)(A) of the Act, persons who are physically present in this country who entered without inspection are permitted to apply for adjustment of status. To deem such illegal entrants "inadmissible" would render section 245(i)(1)(A) of the Act, which entitles all illegal entrant to file adjustment applications, largely superfluous, since it would effectively preclude such applicants (other than a limited subset of battered spouses and children) from ever obtaining approval of such applications. On a similar note, since an applicant for adjustment of status is assimilated into the position of an applicant for admission, such a person must be "admissible" both at the time of application and at the time of actual adjust of status. See 8 C.F.R. sec. 245.10(a)(3) (alien "may apply" for adjustment under section 245(i) if not excludable); section 245(i)(2)(A) of the Act (alien must be "admissible" at time of adjustment); see generally Palmer v. INS, 4 F.3d 482 (7th Cir. 1993) (citing cases). Since section 245(i)(1)(A) of the Act expressly permits entrants without inspection to apply for adjustment of status, Congress, in effect, has deemed such persons "admissible" for the single purpose of filing an adjustment application under section 245(i) of the Act. We do not believe that Congress, having thus invited such applications (which must usually be accompanied by a substantial penalty fee, recently increased), intended to create the futile situation in which most entrants without inspection would be admissible solely for the purpose of filing an adjustment application, but would be precluded from ever being able to adjust status based on the same application. To avoid such a result, we conclude that section 245(i)(1)(A) of the Act falls within the ambit of the section 212(a) savings clause, and "provides otherwise" for the limited purpose of enabling otherwise eligible entrants without inspection to apply for and receive adjustment of status under section 245(i) of the Act. See 2A Sutherland, supra sec. 45/12 at 61-62 (statutes should be construed to avoid futile or unjust results which are clearly inconsistent with the policies of the statute).
Legislative History of Section 212(a)(6)(A) of the Act
Our conclusion finds ample support in the relevant legislative history. In enacting section 212(a)(6)(A) of the Act, Congress sought, in part, to redress the long-standing problem in which aliens who circumvented the inspection process are entitled to greater procedural and substantive rights than those who present themselves to an inspection in the manner prescribed by law. To explain, until new section 212(a)(6)(A) of the Act goes into effect, an alien who has effected an "entry" into the United States, even by evading inspection, cannot be placed into exclusion proceedings. See e.g. Matter of Patel, 20 I&N Dec. 368, (BIA 1991); Matter of Esrrada-Betancourt, 12 I&N Dec. 191, 194 (BIA 1967). In order to remove such a person from the United States, the Service is required to institute deportation proceedings against the person. See pre-IIRAIRA sections 241(a)(1)(B) and 242(b) of the Act. On the other hand, the Service currently may place an alien who presents himself or herself for admission at a designated port-of-entry into exclusion proceedings, since that person has not yet "entered" the United States, but is merely at the "threshold" of initial entry to this country seeking admission. See Leng May Ma v. Barber, 357 U.S. 185, (1958).
Congress attempted, in part, to correct this anomaly by redrawing the line between what have been known as exclusions and deportation. IIRAIRA Sec. 301. The provision of the Act defining "entry," section 101(a)(13) of the Act, was rewritten to define instead "admission" in precise detail, focusing on whether the alien has been inspected and authorized to enter by an immigration officer. The grounds of deportability, now in section 237 of the Act, apply to persons who have been admitted, whereas the grounds of "inadmissibility" (formerly grounds of "exclusion") in section 212 of the Act generally apply to all persons who have not been admitted, even if they have been in the United States for many years following a surreptitious entry. To round out this change, Congress enacted a new section 212(a)(6)(A) of the Act which, as noted above, for the first time makes illegal entry a ground of inadmissibility. In enacting this provision, however, Congress clearly did not intend to render all illegal entrants inadmissible to the United States. First, Congress specifically exempted certain battered spouses and children who entered without inspection from this new ground of inadmissibility. See Section 212(a)(6)(A)(ii) of the Act. In addition, as discussed above, section 212(a) of the Act contains a savings clause exempting illegal entrants, as well as others, from inadmissibility if "otherwise provided" in the Act. By retaining this savings clause, Congress left the door open to the possibility that the policy concerns of other sections of the Act may outweigh those of the individual grounds of inadmissibility of section 212(a). Based on our review of the relevant legislative history of section 245(i), it is our opinion that Congress's goals in enacting section 245(i) of the Act would not be achieved were the Service to deem entrants without inspection inadmissible when they otherwise qualify for adjustment of status under section 245(i) of the Act.
Legislative History of Section 245(i) of the Act
On August 26, 1994, Congress added section 245(i) to the Act. See section 506(b) of Pub.L. 103-317. As we have previously noted, It is clear from the Senate and House floor debates that Congress enacted section 245(i) of the Act primarily in order to reduce consular case load burdens and increase Service revenues, thereby increasing the government's overall ability to combat immigration fraud. See Remarks of Sen. Kennedy, 140 Cong. Rec. S352 (daily ed. Jan. 28, 1994) and Rep. Berman, 140 Cong Rec. H8609-10 (daily ed. Aug. 18, 1994). In addition, section 245(i) of the Act reflects Congress's concern with requiring otherwise legally qualified aliens who have reached "the very final part" of the immigrant visa process to travel abroad merely to obtain their immigrant visas. Id . It is clear from the express language in section 245(i)(1)(A) that one of the groups Congress targeted in enacting section 245(i) was illegal entrants.
On the other hand, we have also noted that congress did not intend for section 245(i) of the Act to become a means of eroding the integrity of the normal overseas visa processing system, or of encouraging fradulent entries into this country. See Feb. 7, 1996 Legal Opinion at 10. To discourage such activity, Congress subjected most section 245(i) applicants to payment of a substantial surcharge in the amount of five times the normal base filing fee for adjustment applications (i.e. $650). Despite inclusion of this economic deterrent, there did not exist universal support in Congress for enactment of section 245(i) of the act. Id . As a consequence, the House and Senate conferees agreed that section 245(i) would remain in effect for an initial period of no more than three years, and that the Service and the State Department would be required to monitor closely the impact of section 245(i) during this three-year period. See H. Rep. No. 103-708, printed at 140 Cong. Rec. H8468, H8498 (daily ed. Aug. 16, 1994).
In enacting IIRAIRA, Congress not only added new section 212(a)(6)(A) of the Act, but also revised section 245(i) of the Act by increasing the surcharge prescribed in section 245(i)(1) to $1,000 and adding a new section 245(i)(3) of the Act. We find it significant that, in making these changes, Congress left unaltered the specific reference in section 245(i)(1)(A) of the Act entitling certain entrants without inspection to apply for adjustment of status. This is a clear indication of Congress's continued intent to permit such persons, if otherwise qualified, to adjust their status under section 245(i) of the Act. See 1A Sutherland, supra, sec. 22.32 at 28-84 (where amendment leaves portions of original provisions unchanged, such portions continue in effect).
Effective of September 30, 1997 Sunset Provision
In connection with our review of your draft interim regulation implementing section 245 of the Act, as amended by the IIRAIRA, we have advised your office that the Service should complete adjudication of all timely field section 245(i) adjustment applications, even if a final decision is not reached until after September 30, 1997. At our request, you have incorporated language in the preamble to the draft interim rule explaining the rationale for this conclusion. For the reasons set forth in the draft preamble, we note that otherwise eligible persons who are physically present and who entered this country without inspection may submit a section 245(i) adjustment application through September 30, 1997. See section 245(i)(1) of the Act. Further, as with all other timely filed section 245(i) adjustment applications, the Service may adjudicate to completion any such timely filed application, even if it cannot complete such adjudication until after September 30, 1997. We urge speedy completion and publication of the interim regulation, so that language in existing regulations that might otherwise prove a barrier to such adjudication will be revised.
Conclusion
Under section 245(i)(1)(A) of the Act, an alien who is physically present in the United States after entering this country without inspection will continue to be "admissible," and therefor eligible to apply for adjustment of status under section 245(i) of the Act, after section 212(a)(6)(A) of the Act goes into effect on April 1, 1997.
David Martin
General Counsel