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Immigration Law

CA5 on Chevron, Adjustment, Admission and Proper NTA Charging: Marques v. Lynch

Marques v. Lynch, Aug. 19, 2016 - "We are urged to press on beyond the seemingly clear language of the statute into the ambiguity created by the overall operation of the INA. The possibility of venturing beyond the confines of Sections 1227(a)(1)(A) and 1182(a)(7)(A) causes us to recall comments by Chief Judge Irving R. Kaufman of the Second Circuit, who noted the INA’s “striking resemblance” to “King Minos’s labyrinth in ancient Crete.” See Rickey v. United States, 592 F.2d 1251, 1256 n.5 (5th Cir. 1979) (quoting Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977)). With the wariness that comes from prior encounters with the labyrinth, we press on to that dark and mysterious realm. ... 

Our issue is whether applying for relief — adjustment of status — that leads to an alien being lawfully admitted for permanent residence can be equated to an application for admission. Is there enough in the ambiguities of the statutory context to allow us to give deference to the BIA’s interpretation in this slightly different context and regarding slightly different terms than in Martinez? We conclude there is not. ...

We hold that Sections 1227(a)(1)(A) and 1182(a)(7)(A) are not ambiguous as to the issue before us. Specifically, the documentation requirements of Section 1182(a)(7) do not apply to an alien who was previously validly admitted as a nonimmigrant, who is residing in the United States, and who applies for an adjustment of status. The BIA found that Marques adjusted his status on the basis of a fraudulent marriage. It appears the Government had other alternatives to remove Marques due to his fraudulent marriage. We are simply announcing the failure of the only charge on which his removal is based.  Marques’s petition for review of the BIA’s order of removal is GRANTED. The BIA’s judgment is VACATED. Marques’s petition for review of the BIA’s decision denying a motion to reopen is DENIED as MOOT."  [Hats off to Nick Chavez!  Audio of the oral argument here.]