VILLALOBOS

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Matter of Jesus Ricardo VILLALOBOS, Respondent
Decided March 10, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Although the Department of Homeland Security has exclusive jurisdiction over
applications for adjustment of status under the legalization provisions of section 245A
of the Immigration and Nationality Act, 8 U.S.C. § 1255a (2012), the Immigration
Judges and the Board of Immigration Appeals have jurisdiction to determine whether
an alien was eligible for a previous adjustment under section 245A(b)(1) for purposes
of assessing the alien’s removability and current eligibility for relief from removal.
(2) An alien seeking to acquire lawful permanent resident status through the legalization
provisions of section 245A of the Act must establish admissibility, both at the time of
the initial application for temporary resident status and again when applying for
adjustment to permanent resident status under section 245A(b)(1).
(3) An alien who was inadmissible at the time of adjustment of status from temporary
resident to permanent resident under section 245A(b)(1) of the Act was not lawfully
admitted for permanent residence and is therefore ineligible for a waiver of
inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994).
FOR RESPONDENT: Danielle M. Claffey, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Elena Albamonte, Deputy
Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
GREER, Board Member:
This 	case 	addresses 	the 	question 	of 	our 	jurisdiction 	to 	determine
whether an alien was eligible for a previous grant of adjustment of status
under the legalization provisions of section 245A(b)(1) of the Immigration
and Nationality Act, 	8 U.S.C. § 1255a(b)(1) (2012), for purposes of
assessing the alien’s removability and current eligibility for relief from
removal. We hold that we have such jurisdiction.
In a decision dated January 18, 2011, an Immigration Judge found the
respondent 	removable 	on 	his 	own 	admissions 	under 	sections
237(a)(2)(A)(i) and (B)(i) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(i) and
(B)(i) (2006), as an alien convicted of a crime involving moral turpitude
and a controlled substance violation. 	He further found the respondent

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removable under section 237(a)(1)(A) of the Act as an alien who was
inadmissible 	at 	the 	time 	of 	his 	adjustment 	of 	status 	under 	section
245A(b)(1) of the Act. 	Concluding that the respondent had not been
lawfully admitted for permanent residence, the Immigration Judge denied
his request for a waiver under former section 212(c) of the Act, 8 U.S.C.
§ 1182(c) (1994), and ordered him removed. 	The respondent has appealed
from that decision.1 The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States without inspection on December 15, 1979. On May 1, 1988,
he was admitted to the United States as a temporary resident pursuant to
section 245A(a) of the Act. 	After receiving his temporary resident status,
the 	respondent 	was 	convicted 	of 	the 	following 	offenses 	in 	Florida:
possession of cocaine on February 11, 1991; counterfeit or altered lottery
tickets on April 19, 1991; possession of cocaine on May 29, 1991; and
possession and sale, purchase, or delivery of cocaine on November 3, 1992.
Subsequent to his 1991 convictions, the respondent adjusted his status to
that of a permanent resident under section 245A(b)(1) of the Act on
November 11, 1991.
The respondent’s criminal record came to light when he applied for a
replacement resident alien card. 	The Department of Homeland Security
(“DHS”) served the respondent with a notice to appear on October 2, 2007,
charging him with removability under sections 237(a)(2)(A)(i) and (B)(i) of
the Act on the basis of his convictions.2 On May 16, 2008, the DHS lodged
an additional charge under section 237(a)(1)(A), asserting that at the time
of his adjustment of status, the respondent was inadmissible under section
212(a)(2)(A)(i)(II) of 	the Act, 8 	U.S.C. 	§ 1182(a)(2)(A)(i)(II) 	(2006),
because he had been convicted of a controlled substance violation. 	The
respondent conceded the charges in the notice to appear but denied the
lodged 	charge, 	arguing 	that 	he 	was 	lawfully 	admitted 	for 	permanent
residence as of the date he was granted lawful temporary resident status in
1 Following the respondent’s appeal, we requested supplemental briefs from the parties
to address the jurisdictional issue. 	Both parties submitted supplemental briefs, which
have been considered in adjudicating this appeal.
2 Information regarding the respondent’s convictions was obtained independently of his
legalization application, so the confidentiality provisions at section 245A(c)(5)(A) of the
Act, which prohibit the use in removal proceedings of information furnished in a
legalization application, are not at issue here. See 8 C.F.R. § 245a.2(t) (2015). In any
case, the respondent does not allege that the Immigration Judge violated these provisions
by relying on the contents of the legalization application.

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1988, rather than in 1991 when his status was adjusted under section
245A(b)(1).3 As 	relief 	from 	removal, 	he 	applied 	for 	a 	waiver 	of
inadmissibility under former section 212(c) of the Act.
The Immigration Judge found that the respondent was removable on all
of the charges and that he was ineligible for a waiver under former section
212(c) of the Act. 	Specifically, he concluded that the respondent was
removable under section 237(a)(1)(A) because at the time his status was
adjusted from that of temporary resident to permanent resident under
section 245A(b)(1), he was inadmissible under section 212(a)(2)(A)(i)(II)
as a result of his convictions for controlled substance violations. 	Since the
respondent 	could 	not 	establish 	that 	he 	was 	admissible 	or 	that 	his
inadmissibility could have been waived, the Immigration Judge held that
the respondent was ineligible to adjust under sections 245A(b)(1)(C)(i) and
(d)(2)(B)(ii)(I) of the Act when he was granted permanent resident status.
The Immigration Judge further held that because the respondent adjusted
his status without satisfying the substantive requirements of the law, he was
never lawfully admitted for permanent residence and is therefore ineligible
for a waiver under former section 212(c) of the Act.
II. ISSUES
Because 	the 	DHS 	has 	exclusive 	jurisdiction 	over 	applications 	for
adjustment of status filed under section 245A of the Act, we must first
decide 	whether 	we 	and 	the 	Immigration 	Judges 	have 	jurisdiction 	to
determine whether an alien was eligible for a previous adjustment under
section 245A(b)(1) of the Act for purposes of assessing his removability
and current eligibility for relief.
If we do have jurisdiction, we must then decide whether the respondent
is removable under section 237(a)(1)(A) of the Act as an alien who was
inadmissible at the time of his section 245A(b)(1) adjustment. 	If the
respondent was inadmissible when he adjusted his status to that of a
permanent resident, we must determine if the Immigration Judge properly
denied his application for section 212(c) relief.
3 The respondent argued on appeal that a transcript of the hearing was needed to
establish that he had contested the lodged charge under section 237(a)(1)(A) of the Act.
On July 17, 2014, we remanded the record to the Immigration Judge for the preparation
of a full transcript of the proceedings. The Immigration Judge issued a decision on July
13, 2015, stating that there was no transcript because his prior decision was based on the
parties’ briefs, and he certified the case to the Board. During the remanded proceedings,
the respondent did not argue that any further hearing was warranted, and we conclude
that the record is now complete for appellate review.

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III. ANALYSIS
A. Jurisdiction
The respondent argues that because the DHS has exclusive jurisdiction
over section 245A adjustment applications, the Immigration Judges and the
Board lack jurisdiction in removal proceedings to determine whether his
adjustment of status under section 245A(b)(1) of the Act was lawful. 	In
response, the DHS contends that once removal proceedings have been
initiated, the Immigration Judge has jurisdiction to conduct the proceedings
to determine the respondent’s removability and eligibility for relief from
removal. According to the DHS, an alien’s section 245A adjustment could
otherwise never be challenged in removal proceedings.
Both section 245A of the Act and its implementing regulations give the
DHS exclusive jurisdiction over adjustment applications filed under that
section. 	See section 245A(f) of the Act; 8 C.F.R. §§ 245a.2(e)(1), (p),
245a.3(d)(1), (j) (2015). 	However, the statute and regulations also make
clear that the Immigration Judges and the Board have jurisdiction to
determine an alien’s removability once proceedings have commenced. 	See
sections 240(a)(1), (c)(1)(A) of the Act, 8 U.S.C. §§ 1229a(a)(1), (c)(1)(A)
(2012); 8 C.F.R. §§ 1003.1(b)(3), 1240.1(a)(1)(i) (2015).
We conclude that the limitations in section 245A do not bar us from
deciding whether the respondent is removable under section 237(a)(1)(A)
of the Act as an alien who was inadmissible at the time he adjusted status
under section 245A(b)(1) of the Act.4 See Matter of Singh, 21 I&N Dec.
427, 435 (BIA 1996) (stating in exclusion proceedings involving a section
245A applicant that “[a]s long as the [DHS] chooses to prosecute the
applicant’s proceedings to a conclusion, the Immigration Judges and this
Board must order the applicant excluded and deported if the evidence
supports such a finding”); cf. Matter of Masri, 22 I&N Dec. 1145, 1149
(BIA 	1999) 	(holding 	that 	Immigration 	Judges 	and 	the 	Board 	have
jurisdiction over proceedings to rescind an alien’s adjustment of status that
was granted pursuant to the special agricultural worker provisions of
section 210 of the Act, 8 U.S.C. § 1160 (1994), from that of temporary
resident to permanent resident).
4 We agree with the DHS that the regulations regarding protection from removal at
8 C.F.R. § 245a.34(a)(1) (2015) do not apply to aliens, like the respondent, who applied
for adjustment of status under section 245A of the Act, so those provisions have no
bearing on our jurisdiction in this case.

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B. Removability
The 	respondent 	argues 	that 	even 	if 	we 	have 	jurisdiction 	in 	these
proceedings to determine whether his adjustment under section 245A of the
Act 	was 	lawful, 	the 	charge 	under 	section 	237(a)(1)(A) 	that 	he 	was
inadmissible at the time of admission cannot be sustained. 	He asserts that
he should be considered to have been lawfully admitted for permanent
residence as of the date he was granted temporary resident status in 1988,
prior to his 1991 drug convictions, rather than on November 11, 1991,
when his status was adjusted to that of a permanent resident.
In support of his contentions, the respondent relies on Perez-Enriquez
v. Gonzales, 463 F.3d 1007 (9th Cir. 2006), where the United States Court
of 	Appeals 	for 	the 	Ninth 	Circuit 	held 	that 	the 	admissibility 	of 	an
agricultural 	worker 	who 	was 	granted 	temporary resident 	status 	under
section 210(a)(1) of the Act is determined as of the date of his admission
for lawful temporary residence and is not redetermined upon his automatic
adjustment to lawful permanent resident status under section 210(a)(2). Id.
at 1008, 1015 (citing Matter of Jimenez-Lopez, 20 I&N Dec. 738, 742 (BIA
1993) (distinguishing the mechanism for adjustment of status under section
210(a)(2) as “unique under the immigration laws” because it accords lawful
permanent resident status “on the basis of a fixed schedule, without regard
for the alien’s admissibility at that time”)).
However, the respondent’s circumstances are distinguishable from those
in Perez-Enriquez. His adjustment of status from that of temporary resident
to permanent resident is governed by the legalization provisions of section
245A of the Act. 	Those provisions require an applicant to file two
applications—one to acquire temporary resident status and a subsequent
application to adjust his status to that of a permanent resident.
First, the alien must apply for temporary resident status pursuant to
8 C.F.R. § 245a.2(e)(1), which requires that the application be filed on
Form I-687 (Application for Status as a Temporary Resident Under Section
245A of the INA). 	To be eligible for temporary resident status, the
applicant must demonstrate that he satisfies the requirements of section
245A(a), including establishing that he “is admissible to the United States
as an immigrant.” Section 245A(a)(4)(A) of the Act.
After the required statutory period of temporary residence has elapsed,
the alien can apply for adjustment to permanent resident status. See section
245A(b)(1)(A) of the Act; 8 C.F.R. § 245a.3(a). 	That application must be
filed on Form I-698 (Application to Adjust Status From Temporary to
Permanent 	Resident 	(Under 	Section 	245A 	of 	the 	INA)). 	8 	C.F.R.
§ 245a.3(d)(1). 	The applicant must demonstrate that he satisfies the
requirements of section 245A(b)(1)(C)(i) of the Act, which again includes

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establishing that he “is admissible to the United States as an immigrant.”
See Matter of Rosas, 22 I&N Dec. 616, 618 n.1 (BIA 1999) (noting that
adjustment of status under section 245A “occurs only after the alien has
applied for adjustment and demonstrated” that he or she is admissible); see
also 8 C.F.R. § 245a.3(c)(2) (providing that an alien who is inadmissible is
ineligible to adjust his status under section 245A).
Both the plain language of section 245A(b)(1) of the Act and its
implementing 	regulations 	provide 	that 	adjustment 	from 	temporary 	to
permanent resident status requires another application on a different form.
These provisions make clear that an applicant must establish admissibility,
not only to initially become a temporary resident, but also to adjust status to
that of a permanent resident. 	This two-step process of legalization under
section 245A is distinguishable from adjustment of status under section
210(a)(2) 	of 	the 	Act, 	which 	is 	automatic 	and 	requires 	no 	additional
determination of admissibility. We therefore conclude that an alien seeking
to 	acquire 	lawful 	permanent 	resident 	status 	through 	the 	legalization
provisions of section 245A must establish admissibility at the time of
adjustment of status under section 245A(b)(1). Section 245A(b)(1)(C)(i) of
the Act; 8 C.F.R. § 245a.3(c)(2).
The respondent was convicted of cocaine possession in February and
May of 1991 and subsequently adjusted his status to that of a permanent
resident under section 245A(b)(1) of the Act on November 11, 1991. 	He
was therefore inadmissible under section 212(a)(2)(A)(i)(II) at the time of
his adjustment and is removable under section 237(a)(1)(A) of the Act. See
section 245A(d)(2)(B)(ii) of the Act (stating the grounds of inadmissibility
that may not be waived to establish eligibility for section 245A(b)(1)
adjustment of status); 8 C.F.R. § 245a.3(g)(3) (same).5
C. Relief from Removal
The respondent bears the burden of proof to establish his eligibility for a
waiver of inadmissibility under former section 212(c) of the Act. 	See
section 240(c)(4)(A) of the Act. 	It is well established that only aliens who
have been lawfully admitted for permanent residence are entitled to section
212(c) relief. 	See Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1313−17
(11th Cir. 2006) (holding that an alien whose status was adjusted by
mistake was not eligible for section 212(c) relief because he did not
5 We note that 8 C.F.R. § 245a.3(g)(3)(iii) provides that inadmissibility for a controlled
substance violation under former section 212(a)(23) of the Act cannot be waived unless it
was for a single offense of simple possession of 30 grams or less of marijuana. That
ground of inadmissibility is currently at section 212(a)(2)(A)(i)(II) of the Act.

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“lawfully” acquire permanent resident status); see also, e.g., De La Rosa
v. U.S. Dep’t of Homeland Sec., 489 F.3d 551, 553, 555 (2d Cir. 2007)
(holding that section 212(c) relief was properly denied because “an alien is
only ‘lawfully admitted for permanent residence’ for purposes of the [Act]
if 	his 	or 	her 	adjustment 	to 	lawful 	permanent 	resident 	complied 	with
substantive legal requirements”); Arellano-Garcia v. Gonzales, 429 F.3d
1183, 1187 (8th Cir. 2005) (holding that an alien whose adjustment was
unlawful was not “lawfully admitted for permanent residence” for purposes
of section 212(c) eligibility); Monet v. INS, 791 F.2d 752, 753−55 (9th Cir.
1986) (holding that the alien was ineligible for section 212(c) relief because
he concealed a drug conviction when he adjusted his status and therefore
was not lawfully admitted); Matter of Abdelghany, 26 I&N Dec. 254, 259
n.8 (BIA 2014) (noting that section 212(c) relief is unavailable to aliens
who “obtained lawful permanent resident status by fraud or who otherwise
lacked entitlement to it”); cf. Matter of Koloamatangi, 23 I&N Dec. 548,
551 (BIA 2003) (holding that an alien was ineligible for cancellation of
removal for lawful permanent residents because he was “deemed, ab initio,
never to have obtained lawful permanent resident status once his original
ineligibility therefor [was] determined in [removal] proceedings”).
Because the respondent’s convictions rendered him inadmissible at the
time of his 1991 adjustment, he was not eligible to adjust his status.
Therefore, since the respondent was never “lawfully” accorded permanent
resident status, he is not eligible for a waiver of inadmissibility under
former section 212(c) of the Act.6 Consequently, the Immigration Judge
properly denied his request for a waiver.
IV. CONCLUSION
The DHS established that the respondent is removable under section
237(a)(1)(A) 	of 	the 	Act 	because 	he 	was 	inadmissible 	under 	section
212(a)(2)(A)(i)(II) at the time of his section 245A(b)(1) adjustment of
status. Since the respondent was inadmissible when his status was adjusted
from that of temporary resident to permanent resident, he was never
lawfully admitted for permanent residence. 	He is therefore ineligible for a
waiver 	of 	inadmissibility 	under 	former 	section 	212(c) 	of 	the 	Act.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
6 We are unpersuaded by the respondent’s reliance on Matter of Cazares, 21 I&N Dec.
188 (BIA 1996, 1997; A.G. 1997), which related to the alien’s acquisition of the required
period of “domicile,” not the lawfulness of his admission for permanent residence.