CA11 on 'Applicant for Admission' - Ortiz-Bouchet v. U.S. Atty. Gen.

CA11 on 'Applicant for Admission' - Ortiz-Bouchet v. U.S. Atty. Gen.

"We initially find that the IJ erred as a matter of law in finding Ortiz and Malpica inadmissible pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) because that section only applies to applicants for admission and not to immigrants like Ortiz and Malpica who sought post-entry adjustment of status while already in the United States.  Under § 1182(a)(7)(A)(i)(I), an immigrant is inadmissible if “at the time of application for admission [he] is not in possession of a valid unexpired immigrant visa . . . or other valid entry document [.]” 8 U.S.C. § 1182(a)(7)(A)(i)(I).  We have previously held that the definition of “admission” in 8 U.S.C. § 1182(h)is unambiguous and “does not encompass a post-entry adjustment of status.”  Lanier, 631 F.3d at 1366.  We now hold the same in regards to § 1182(a)(7)(A)(i)(I).  In this case, Ortiz and Malpica were not outside the United States seeking entry, but rather already in the United States and seeking an adjustment of status permitting them to remain.  The IJ did not recognize this distinction and sustained the § 1182(a)(7)(A)(i)(I) charge against them because they did not have valid immigration documents at the time of their post-entry adjustment of status.  Because Ortiz and Malpica were not applicants for admission within the meaning of § 1182(a)(7)(A)(i)(I), the IJ erred in applying this section to them as a basis for removal.  We grant Ortiz and Malpica’s petition for review as to this claim and vacate the order of removal entered on this basis. ... The IJ found that Malpica was removable under § 1182(a)(9)(B)(i)(II) because she had left the United States on July 18, 2003.  However, she left pursuant to a grant of advance parole, and was paroled back into the United States on July 31, 2003.  Under Matter of Arrabally, her exit pursuant to a grant of advance parole does not qualify as a “departure” within the meaning of § 1182(a)(9)(B)(i)(II) and Malpica is, thus, not inadmissible under this section. Thus, this charge of removability cannot be sustained.  Accordingly, we grant Ortiz and Malpica’s petition and vacate the BIA’s order of removal." - Ortiz-Bouchet v. U.S. Atty. Gen., Apr. 23, 2013.  [Hats off to Miami attorney Matthew B. Weber!]