Lawful Admission Required to Adjust Status
By Reuben Seguritan
Many people strive to live and work in the United States. Some people are trying to escape the war or famine in their country. Others want to move to the United States because there are more opportunities here. Whatever the reason, moving to the United States is a very big step in one’s life. This life-changing event begins with entering the United States legally.
Lawful admission to the United States is important in order to determine whether a person can adjust his status to that of a lawful permanent resident (LPR). If the noncitizen was not lawfully admitted to the United States, then he cannot adjust his status and he may be deported. Lawful admission means the foreign national must have been inspected, admitted or paroled into the United States.
There has been some confusion in recent years as to what constitutes a lawful admission into the United States. There are three frequent scenarios as to how a foreign national may enter the United States. These different scenarios illustrate how there can be lawful or unlawful admission into the United States.
The first is when the noncitizen enters the United States by car or land. There are immigration officers at the borders of the United States who ask questions and check documents. However, it is possible for the officer at the port of entry to not ask questions from the passengers and just wave the vehicle and all the persons in the vehicle through.
In the case of Matter of Areguillin, the Board of Immigration Appeals (BIA) determined that the noncitizen applying for adjustment of status because she married a US citizen, was lawfully admitted to the United States. In this case, the noncitizen passenger was not asked any questions by the immigration officer and she did not have any lawful documents to enter the United States. Only the driver was asked questions and presented his lawful documents to enter to the United States. The BIA concluded that by physically presenting herself for questioning and not making any false claim to US citizenship and not volunteering any information, the noncitizen was inspected at the border. The act of the border official waiving their vehicle through was the act of admission of the noncitizen to enter the United States.
Note however that if the noncitizen has no legal document to enter the United States, but is admitted, and without any other eligibility for adjustment of status, then the noncitizen can be the subject of deportation.
The second scenario is when the noncitizen enters the United States with the use of fraudulent documents or by misrepresentation, but other than a false claim to US citizenship. In the case of Emokah v. Mukasey, the Court concluded that the noncitizen was admitted to the United States despite the fact that he used a visa obtained by fraud or misrepresentation. In the subsequent case of Matter of Healy and Goodchild, the BIA concluded that the noncitizen must know that the statement is false in order for the noncitizen to be deemed not admitted to the United States.
If the noncitizen does knowingly use fraudulent documents or enters the United States by misrepresentation, he could use the fraud waiver under the INA to cure this defect. The waiver is available to a noncitizen who 1) is the spouse or child of a US citizen or LPR; and 2) can demonstrate that the denial of admission would result in extreme hardship to this relative. However, if these 2 grounds are not present, the noncitizen could be deported.
The third scenario is when the noncitizen makes a false claim to US citizenship. In the case of Reid v. INS, the noncitizen entered the United States by falsely claiming that he was a US citizen. The Supreme Court held that the noncitizen’s entry is treated as an entry without inspection and hence, the noncitizen was not admitted to the United States. The INA further provides that a noncitizen who makes a false claim to US citizenship is permanently inadmissible to the United States.
In conclusion, lawful admission to the United States is critical in obtaining immigration benefits and adjustment of status. Hence, legally entering the United States should always be sought.