Philadelphia Immigration Lawyer Blog

On March 25, 2008, the 9th Circuit Court of Appeals held that a non-citizen who enters the U.S. by fraudulent means is statutorily ineligible for adjustment of status because that non-citizen has not been “admitted.” The case is Orozco v. Mukasey, 521 F.3d 1068(9th Cir. 2008). In this case, the non-citizen entered the U.S. through a checkpoint where he was inspected but he did so with someone else’s green card. He then married a U.S. citizen who filed an I-130 on his behalf and the I-130 was approved. Sometime thereafter he was put in removal proceedings where he tried to adjust his status to permanent residency because of his marriage and the approved I-130 and he asked for a 212(i) fraud waiver.

The Immigration Judge denied Orozco’s application for adjustment on the grounds that to adjust status, one must have been lawfully “admitted” to the U.S. and because of his fraudulent entry, Orozco was not “lawfully admitted”. The IJ held that the law defines "admission" as the "lawful entry of the alien into the U.S. after inspection and authorization".

The IJ ruled that the 212(i) fraud waiver, even if granted, wouldn’t change the lack of “admission”. The BIA affirmed and the federal court then upheld the IJ and the BIA.

The court’s ruling is binding law in the 9th Circuit only and, in fact, a federal court in the 2nd Circuit ruled completely differently (Emokah v. Mukasey).

On May 12, 2008, the 9th Circuit stayed its ruling for 60 days to allow the parties to file for rehearing so this ruling may not be the last word in the Circuit. Certainly if the case does hold up, one issue for future cases will be whether Orozco controls only where the non-citizen affirmatively enters the U.S. in a fraudulent manner--that is, knowing full well that his documents are counterfeit, as opposed to someone who presents himself at a point of entry with a fraudulent document but is waived through without actually showing it.

I’ll up the post when there is a decision on any re-hearing.