Orozco: Adjustment of Status When Admission Involved Fraud or Misrepresentation

In Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), the Ninth Circuit held that a non-citizen who obtains entry into the U.S. by fraudulent means is statutorily ineligible for adjustment of status under INA § 245(a) because he or she has not been "admitted." Subsequently, the Ninth Circuit vacated its decision. However, the issues involved in this case still have not been resolved definitively by the BIA.

Timeline [1]|Developments [2]|Resources [3]

Contact Us! Please contact the Clearinghouse at [email protected] [4] with any new cases or information relevant to the cases summarized below.

Timeline of the Case

3/25/08 - Ninth Circuit issues decision in Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008)

10/20/08 - Ninth Circuit vacates the decision and remands the case to the BIA

5/12/2009 - BIA remands the case to an immigration judge to allow DHS to amend the notice to appear

Latest Developments

BIA Remands Orozco to the Immigration Court
May 12, 2009

Without addressing the continuing validity of Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), the BIA remanded [5] Matter of Orozco to an immigration judge so that DHS can amend the notice to appear to include a charge that respondent was present without admission under INA §212(a)(6)(A)(i). The BIA also remanded a second case raising the continuing validity of Matter of Areguillin (Matter of Patrick). In this case, the BIA found that remand was needed because the IJ did not make a formal finding of removability. The BIA did not discuss the merits of Matter of Areguillin except to say that the parties agree about the definition of “admitted” and therefore there is no dispute about this issue. Please contact AILF at [email protected] [4] if you have similar cases that are or will be in the circuit courts.

Briefing at the BIA: AILF and AILA Submit Amicus Brief; DHS Agrees that "Lawful Admission" Means Procedurally Regular
January 2009

The parties in Matter of Orozco submitted briefs to the BIA following the Ninth Circuit's remand. AILF and AILA submitted an amicus brief in support of the respondent, arguing that an individual is "admitted" for purposes of adjustment of status (INA § 245(a)) if that individual is inspected and allowed to enter the United States, regardless whether he or she actually was inadmissible at the time for fraud, misrepresentation or any other reason. AILF and AILA also filed a brief in a second case, Matter of Patrick.

In its brief [6], DHS agreed with amici's position that "lawful entry" under INA § 101(a)(13) means procedurally regular only and that a person who entered by fraudulent means has been admitted. DHS said that Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), still applies. However, DHS argued that under INA § 101(a)(13)(C), an exception exists where a person gains entry by falsely claiming LPR status.

Ninth Circuit Vacates Orozco v. Mukasey
October 20, 2008

The Ninth Circuit Court of Appeals granted [7] the parties' joint motion to dismiss Orozco v. Mukasey and vacated its published decision after the BIA granted a joint motion to reopen the case.

Ninth Circuit Issues Decision in Orozco v. Mukasey
March 25, 2008

In Orozco, the court had held that the petitioner had not been "admitted" for purposes of adjustment of status after concluding that an entry achieved with fraudulent documents is not a "lawful entry" and does not satisfy the statutory definition of "admitted." INA § 101(a)(13)(A). The court also held that Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), did not have "persuasive value" because it predated the current statutory definition of "admission."

In Matter of Areguillin, the BIA held that an admission occurs when an inspecting officer "permits the applicant to pass through the port of entry." Thus, the BIA found that Areguillin was "inspected and admitted" within the meaning of the adjustment statute, INA § 245(a), when she was waived through the port of entry, even though she was inadmissible at that time due to lack of proper documents.

Additional Resources

DHS Brief in Matter of Orozco (filed with the BIA) [6]

DHS Brief in Matter of Patrick (filed with the BIA) [8]

BIA Decision in Matter of Orozco (May 12, 2009) [5]

Ninth Circuit Order Vacating Orozco (October 20, 2008) [7]

AILF Practice Advisory, Orozco v. Mukasey: Current Status of the Case and Preliminary Strategies (May 19, 2008) [9]