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BIA Holds Alien Adjusted Under Cuban Adjustment Act Has Been Admitted and May Be Removed

On December 6th, the Board of Immigration Appeals (Board) held in Matter of Espinosa Guillot, 25 I. & N. Dec. 653 (BIA 2011), that an alien who adjusted status to that of a Lawful Permanent Resident (LPR) pursuant to the Cuban Refugee Adjustment Act of November 2, 1996, as amended (Cuban Adjustment Act), has been admitted to the U.S. and is subject to removal under INA § 237(a)(2006).

The respondent was paroled into the U.S. in 1995 and later adjusted his status to that of LPR pursuant to the Cuban Adjustment Act. In 2009, he was convicted in Florida of trafficking in cannabis and charged with removability under INA § 237(a)(2)(A)(iii) and(B)(i). Relying on the Eleventh Circuit decision in Lanier v. U.S. Atty. Gen., the immigration judge terminated the removal proceedings, finding that the respondent had not been “admitted” to the U.S. and was therefore not removable under INA § 237(a) as an alien who was “in and admitted to the United States.” See 631 F.3d 1363 (11th Cir. 2011).

The Board, however, found that the Lanier court relied on the particular language of INA § 212(h) and concluded that that holding should not be read to extend to other provisions of the INA. The Cuban Adjustment Act expressly authorizes the adjustment of status of an alien who is a native or citizen of Cuba and who has been “paroled into the United States” to “that of an alien lawfully admitted for permanent residence,” so the plain language of the statute provides that an alien who has not otherwise been admitted may be deemed admitted for permanent residence by operation of adjustment of status. In addition, INA § 237(a) only requires that the alien be “in and admitted to the United States.” Thus, the Board concluded, neither the adjustment statute nor the removal provision applicable in this case includes language similar to the unique term in INA § 212(h). The Board thus sustained the appeal, reinstating the removal proceedings against the respondent.

The full opinion in Espinosa Guillot can be accessed here.

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About this Author


William J. Flynn, III is the Practice Leader of the International Practice Group.  His practice includes a large immigration practice representing foreign nationals and U.S. corporations that employ foreign nationals. In this capacity, he represents clients before the U.S. Department of Homeland Security, U.S. Department of Labor and U.S. Department of State.