STOCKWELL, 20 I&N Dec. 309 (BIA 1991)

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MATTER OF STOCKWELL
In Deportation Proceedings
A-28541697
Decided by Board May 31, 1991

(1) An alien holding conditional permanent resident status is prohibited by section
245(d) of the Immigration and Nationality Act, 8 U.S.C. § 1255(d) (1988), from
adjusting his status under section 245(a).

(2) Section 245(d) of the Act does not prohibit an alien whose conditional permanent
resident status has been terminated from adjusting his status under section 245(a).

CHARGE:

Order: Act of 1952-Sec. 241(a)(9)(B) [8 U.S.C. § 1251(a)(9)(B)]-Conditional resident
status terminated

ON BEHALF OF RESPONDENT: James M. Elegante, Esquire

ON BEHALF OF SERVICE: Elizabeth B. Richards

185 S. State Street, Suite 700

General Attorney

Box 11898

Salt Lake City, Utah 84147

BY: Milhollan, Chairman; Dunne and Vacca, Board Members. Concurring Opinion:
Heilman, Board Member. Dissenting Opinion: Morris, Board Member.

In a decision dated November 14, 1989, the immigration judge
found the respondent deportable as charged but granted his applica-
tion for adjustment of status to that of a lawful permanent resident
under section 245 of the Immigration and Nationality Act, 8 U.S.C.
§ 1255 (1988). The Immigration and Naturalization Service has
appealed from the grant of that relief. The appeal will be dismissed.

The respondent is a 46-year-old male native and citizen of the
United Kingdom. He last entered the United States at Houston, Texas,
on April 3, 1987, as a visitor for pleasure. The respondent married a
United States citizen, Deborah Sussman, on November 20, 1987, and
was granted permanent resident status on a conditional basis under
section 216 of the Act, 8 U.S.C. § 1186a (1988), by virtue of that
marriage. The respondent's spouse subsequently filed for divorce, and
the marriage terminated on November 28, 1988. The respondent
married a second United States citizen, Claudia Holbrook, on July 6,

1989\. She filed a visa petition on his behalf which the Service
approved on September 19, 1989.

On July 14, 1989, the Service issued an Order to Show Cause and
Notice of Hearing (Form I-221) against the respondent, charging that
he was deportable under section 241(a)(9)(B) of the Act, 8 U.S.C.
§ 1251(a)(9)(B) (1988), as an alien whose conditional permanent
resident status had been terminated.

At deportation proceedings on November 14, 1989, the immigra-
tion judge found that the Service had shown by clear, unequivocal, and
convincing evidence that the respondent was deportable because his
conditional permanent resident status had been terminated on July 11,
1989. He also found that the Service's termination of the respondent's
conditional permanent resident status was proper because the respon-
dent's spouse had legally terminated the qualifying marriage. The
immigration judge further found that the respondent was not eligible
for a "hardship" waiver of the joint petition requirement under
section 216(c)(4)(A) of the Act.

The immigration judge then considered the respondent's applica-
tion for adjustment of status under section 245 of the Act on the basis
of his second marriage. He noted the Service position that section
245(d) of the Act bars an alien lawfully admitted for permanent
residence on a conditional basis from adjusting his status at any time
after admission, even if he applies for adjustment after his conditional
resident status has been terminated. He found, however, that the
statutory language is ambiguous and that the Service's own regulations
clearly support the respondent's claim that the prohibition applies to
an alien admitted as a conditional permanent resident only while he
currently holds that status. The immigration judge found that because
the respondent's conditional permanent resident status had been
terminated, he was no longer barred by section 245(d) from adjusting
his status. The immigration judge also found that the respondent was
the beneficiary of an approved visa petition as the immediate relative
of a United States citizen, that he was admissible, and that he merited
the exercise of discretion in his favor. The immigration judge therefore
granted the respondent's application for adjustment of status.'

The Service contends on appeal that the immigration judge
incorrectly interpreted the language of section 245(d). The Service
argues that the clear intent of Congress was to exclude both aliens

" The immigration judge granted adjustment of status subject to the provisions of
section 216 of the Act. Section 216(a)(1) of the Act provides that "[n]otwithstanding any
other provision of this Act, an alien spouse (as defined in subsection (g)(1)) ... shall be
considered, at the time of obtaining the status of an alien lawfully admitted for
permanent residence, to have obtained such status on a conditional basis .... "

currently holding conditional permanent resident status and those who
have had such status terminated from the class of aliens eligible to
adjust status under section 245(a) of the Act.

Section 245(a) of the Act permits the Attorney General, in his
discretion, to accord lawful permanent resident status to an alien who
was inspected and admitted or paroled into this country and who is
admissible, is eligible to receive an immigrant visa, and has an
immigrant visa immediately available to him at the time his applica-
tion for adjustment of status is filed.

Certain classes of aliens are barred from adjusting their status under
section 245(a). Section 245(d) of the Act provides in pertinent part:

The Attorney General may not adjust ... the status of an alien lawfully admitted to
the United States for permanent residence on a conditional basis under section 216.

Section 245(d) was added to the Act by section 2(e) of the Immigration
Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat.
3537 (1986) ("IMFA"), as part of a comprehensive statutory scheme to
deter immigration-related marriage fraud. See H.R. Rep. No. 906,
99th Cong., 2d Sess. 6, reprinted in 1986 U.S.C.C.A.N. 5978, 5978.
Section 216 of the Act, also added as part of the IMFA, was designed
to check the validity of marriages and to ensure that aliens could not
sidestep the immigration laws by entering into a fraudulent marriage.
Id. at 5980.

In promulgating regulations to implement the statutory provisions
of the IMFA, the Service provided at 8 C.F.R. § 245.1(b)(12) (1991)
that the class of aliens ineligible to adjust status under section 245(a)
of the Act includes

[a]ny alien who is already an alien lawfully admitted to the United States for
permanent residence on a conditional basis pursuant to section 216 of the ACE.

Clearly, Congress intended to bar adjustment of status during the 2-
year conditional period to prevent an alien from circumventing the
requirements of section 216. Were it not for the bar on adjustment, an
alien who acquired conditional permanent residence through marriage
could adjust status on another basis during the conditional period and
thereby avoid the requirements for removing the conditional basis of
his status under section 216. While the statutory language seems to
leave open the question of whether the bar extends to an alien whose
status as a conditional permanent resident has been terminated, we
agree with the immigration judge that the Service's own implementing
regulation clearly applies the bar in section 245(d) only to aliens
currently holding conditional permanent resident status. Significantly,
the Service does not address the regulatory language on appeal, despite
the fact that the immigration judge found it to be dispositive. We find
that section 245(d) does not prohibit an alien whose conditional

# Interim Decision #31 50

permanent resident status has been terminated from adjusting his
status under section 245(a) of the Act.

Having found that section 245(d) does not bar the respondent from
adjusting his status pursuant to section 245(a) of the Act, we will
affirm the immigration judge's order granting the respondent adjust-
ment of status based on his marriage to Ms. Holbrook. We note that
the Service has cited no adverse discretionary factors that would weigh
against a grant of adjustment in this case. The Service approved a visa
petition on the respondent's behalf on September 19, 1989, based on
his present marriage. Had there been a failure to demonstrate the bona
fides of the respondent's present marriage, the Service could have
denied the visa petition on that ground. Likewise, had the Service
concluded that the respondent's prior marriage was entered into to
evade the immigration laws, the Service could have denied the visa
petition under section 204(c) of the Act, 8 U.S.C. § 1154(c) (1988). We
find that the immigration judge's decision granting the respondent
adjustment of status was a reasonable exercise of discretion.

Accordingly, the Service's appeal from the immigration judge's
order granting adjustment of status under section 245(a) of the Act will
be dismissed.

ORDER:
The appeal is dismissed.

CONCURRING OPINION: Michael J. Heilman, Board Member

I respectfully concur.

In interpreting the language of section 245(d) of the Immigration
and Nationality Act, 8 U.S.C. § 1255(d) (1988), we should consider
the consequences of a perpetual bar to adjustment of status of a person
who has once been granted conditional permanent residence under
section 216 of the Act, 8 U.S.C. § 1186a (1988). The category of
persons affected by a perpetual bar to adjustment would be large. It
could include, among others, the sons and daughters of a conditional
permanent resident, or a conditional permanent resident who has
through inadvertence lost that status by operation of a statutory
provision which automatically divests resident status for failure to file
a petition to have the conditional status removed. See sections
216(a)(1) and (c)(2) of the Act, respectively. Persons in these circum-
stances may well be blameless, and the marriages upon which the
conditional permanent resident status was based may be bona fide in
every sense.

In addition, the termination of conditional permanent resident
status has the effect of rendering the individual deportable under
section 241(a)(9)(B) of the Act, 8 U.S.C. § 1251(a)(9)(B) (1988). An
otherwise innocent party would thus suffer the double dilemma of

being deportable and unable to seek relief from deportation if section
245(d) of the Act was interpreted to constitute a perpetual bar to
adjustment of status.

In previous interpretations of section 245 of the Act, this Board
applied "the well recognized rules of construction that the statute,
being a remedial one, must be liberally interpreted to suppress the evil
and advance the remedy; and the exception carved out of it must be
explained principally in view of the legislative intent." Matter of
Rebelo, 13 I&N Dec. 84, 86 (BIA 1968).

Adherents of the perpetual bar theory hang their entire argument on
the word "admitted," as section 245(d) of the Act states that the
Attorney General may not adjust the status of an "alien lawfully
admitted to the United States for permanent residence on a condition-
al basis under section 216." This emphasis on the word "admitted" as
decisive evidence of a congressional desire to create a perpetual bar is
misplaced. Section 245(c) of the Act employs the same word, or similar
words, in barring eligibility for adjustment of status to certain aliens:

(c) Subsection (a) shall not be applicable to (I) an alien crewman: (2) an alien (other
than an immediate relative as defined in section 201(b) or a special immigrant
described in section 101(a)(27)(H) or (I) who hereafter continues in or accepts
unauthorized employment prior to filing an application for adjustment of status or
who is in unlawful immigration status on the date of filing the application for
adjustment of status or who has failed (other than through no fault of his own or for
technical reasons) to maintain continuously a lawful status since entry into the
United States; (3) any alien admitted in transit without visa under section
212(d)(4)(C); or (4) an alien (other than an immediate relative as defined in section
201(b)) who was admitted as a nonimmigrant visitor without a visa under section
212(1) or section 217.

It is apparent that Congress made several temporal distinctions
among the persons described in this section. These include someone
"who hereafter continues," someone "who is in" unlawful status on
the date of filing, someone "who has failed" to maintain lawful status
since entry, and somcone who was "admitted in transit without visa"
or as a nonimmigrant visitor without a visa. If one simply focuses on
the use of the word "admitted" in this section, the perpetual bar
interpretation immediately runs into serious difficulty. It may well be
that an alien admitted in transit without visa or as a nonimmigrant
visitor without a visa may not adjust her status under this section but
once this categorization ceases, there is no longer a bar to adjustment.
These provisions, which antedate section 245(d) of the Act, provide no
precedent for the proposition that Congress intended that persons in
these categories be perpetually barred from adjusting their status.

In contrast, when Congress intended that an alien be perpetually
barred from an immigration benefit, it employed language that had
this effect. This was done, for instance, in section 204(c) of the Act, 8

Interim Decision #3150

U.S.C. § 1154(c) (1988). This provision bars the approval of a visa
petition on behalf of an alien who has "previously been accorded, or
has sought to be accorded," a fraudulent status as the spouse of a
United States citizen or lawful permanent resident.

For these reasons, I agree that section 245(d) of the Act should be
construed to mean that adjustment of status is barred only if the alien
continues to be a conditional permanent resident under section 216 of
the Act.

DISSENTING OPINION: James P. Morris, Board Member

I respectfully dissent.

I disagree with the finding of the majority that section 245(d) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(d) (1988), applies
only to an alien who currently holds conditional permanent resident
status under section 216 of the Act.

Section 245(d) of the Act provides as follows:

The Attorney General may not adjust ... the status of an alien lawfully admitted to
the United States for permanent residence on a conditional basis under section 216.

I agree with the majority opinion that the quoted sentence was
added to the Act for the purpose of deterring immigration-related
marriage fraud. However, the sentence does not restrict its application
to aliens who are admitted on a conditional basis and remain in that
status. The language clearly prohibits the Attorney General from
adjusting the status of any alien who has been admitted on a
conditional basis under section 216.

The majority does not challenge the clarity of the statute. Rather, it
relies on the regulation promulgated at 8 C.F.R. § 245.1(b)(12) (1991).
which provides that the class of aliens ineligible to adjust under section
245(a) of the Act includes

[a]ny alien who is already an alien lawfully admitted to the United States for
permanent residence on a conditional basis pursuant to section 216 of the Act.

I certainly agree with the majority that the regulation issued by the
Immigration and Naturalization Service can be read to apply only to
those aliens who are currently in conditional status. However, that is
not the only reasonable construction of the regulation. The regulation
does not address the eligibility for adjustment of status of those aliens
whose conditional status has been terminated. Where the statute
prohibits such adjustment, and the regulation does not address it, the
statute should be applied. In any case the regulation should be
construed in a manner that is consistent with the statute. The
regulation can reasonably be construed as not having addressed the
situation of a conditional permanent resident whose status has been

terminated. Moreover, it would frustrate the deterrent purpose of the
statute to permit the adjustment of the status of an alien whose status
as a conditional permanent resident has terminated because of failure
to comply with the requirements of section 216.

It may be argued that, in promulgating the regulation, the Service
interpreted the statute to apply only to aliens currently in a conditional
status. Since the specific question of the applicability of the statute to
aliens whose status has been terminated was not addressed, such an
argument is purely speculative. The only evidence of the position of
the Service on this issue is the position it presented at the hearing and
on appeal. The Service's arguments are that section 245(d) does bar
the adjustment of status of any alien who has been admitted on a
conditional basis under section 216.

For the foregoing reasons I would sustain the Service's appeal from
the immigration judge's grant of adjustment under section 245 of the
Act.

STOCKWELL

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