BIA: Admitted person must be charged as deportable

The BIA held that a noncitizen who was admitted into the United States must be charged as deportable rather than inadmissible to be properly placed into removal proceedings. Matter of D-K-, 25 I&N Dec. 761 (BIA April 12, 2012) (Cole, Pauley, and Wendtland, Board members). Board member Pauley wrote the panel’s opinion.

This case involved an individual who was admitted into the U.S. as refugee. He was denied adjustment of status, then convicted of distributing cocaine within 1,000 feet of a school. On the basis of this conviction, DHS initiated removal proceedings. After first charging the noncitizen as deportable under INA § 237(a)(2)(A)(iii), the aggravated felony provision, DHS withdrew that charge and claimed that he was removable as inadmissible under INA § 212. Matter of D-K-, 25 I&N Dec. at 762. After the IJ found him inadmissible and denied him relief from removal, the noncitizen appealed to the BIA claiming, in addition to other grounds, that he was not subject to inadmissibility proceedings because he had been admitted. Matter of D-K-, 25 I&N Dec. at 762.

After discussing the term “admitted” in some detail as it pertains to refugees, the Board concluded that the noncitizen was admitted. As such, he could be deported under INA § 237 but not excluded under INA § 212. According to the BIA, the “conditional admission” granted to refugees is an “admission” for removal purposes. Matter of D-K-, 25 I&N Dec. at 768-769. It came to this determination in part to avoid having refugees in the U.S. with the federal government’s permission but in an ambiguous legal limbo outside the two recognized statuses for legal presence: admitted or paroled. Matter of D-K-, 25 I&N Dec. at 768.

The Board acknowledged that its position means that refugees might be admitted multiple times—once upon entering the U.S. and again upon adjusting to LPR status. Matter of D-K-, 25 I&N Dec. at 768. That’s not problematic, however, because many people do just that—non-immigrants, for example, are undeniably admitted upon entering the country, then admitted again if they adjust.

Because the noncitizen was admitted into the country as a refugee, the IJ improperly concluded that he was inadmissible. Moreover, the IJ lacked authority to conclude that he was deportable since DHS withdrew that charge. Matter of D-K-, 25 I&N Dec. at 769. Accordingly, the BIA remanded to allow DHS to amend the Notice to Appear. Matter of D-K-, 25 I&N Dec. at 770.