Interim Decision #3094 

MATTER OF SIn Adjustment of Status Proceedings 

Designated by Commissioner December 19, 1,988 

(1) An immigrant alien who entered the United States prior to January 1, 1982, is 

eligible for temporary resident status linelPr section 245A of the Immigration and 

Nationality Act, S U.S.C. § 1255a (Supp. IV 1986), if he can establish that he has 

been residing in the United States in an unlawful status since such date and is 

otherwise eligible under the statute. 

(2) An immigrant alien who has been found deportable by an immigration judge on 

the grounds that his initial entry prior to January 1, 1982, was obtained by fraud, 

and who has been mailing in the United States since such date. is an alien who 

has been residing in the United States in an unlawful status within the purview 

of section 245A(aX2(A) of the Act. 

(3) An immigrant alien who entered the United States by fraud prior to January 1, 

1982, must file an application for waiver of grounds of exoludability in order to be 

eligible for temporary resident status under section 245A of the Act. 

ON BEHALF OF APPLICANT: Keith W. Bell, Esquire 

12350 Industry Way, Suite 203 

Anchorage, Alaska 99515 

This matter is an appeal from the director's decision finding the 

applicant ineligible for temporary resident status under section 

245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a 

(Supp. IV 1986). The case will be remanded for further action and 

consideration. 

The applicant is a married 31-year-old female native and citizen 

of the Philippines. Her spouse is a 39-year-old native, citizen, and 

resident of the Philippines. The couple have two sons. One son is a 

United States citizen. The other son, who has applied for temporary resident status, is a native and citizen of the Philippines. 

The director denied the application because the applicant failed 

to establish continuous residence in the United States in an unlawful status since prior to January 1, 1982. The director reasoned 

that because the applicant was a permanent resident on January 1, 

1982, ;:u.td she was found deportable in 1986, she was in a lawful 

status from January 1, 1982, to 1986. 

On appeal, counsel asserts that an Order to Show Cause, Notice 

of Hearing, and Warrant for Arrest of Alien (Form I-221S) was 

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issued to the applicant on February 12, 1986, alleging her visa was 

invalid as the product of fraud, since she was married at the time 

of her entry into the United States. At a deportation hearing on 

June 26, 1986, the immigration judge found the applicant deportable as charged and granted her voluntary departure. An appeal is 

pending before the Board of Immigration Appeals. Counsel asserts 

further, "It is clear beyond dispute that a person who makes an 

entry into the United States with a fraudulently obtained visa does 

not acquire any lawful status in the United States. That person is 

just as deportable as one who had entered the United States without any documentation and who had enjoyed the benefits of residing in the United States." Finally, counsel asserts the director's 

finding that the applicant has maintained a lawful status since her 

entry is "overtly hostile to the purpose of IRCA." 

The applicant first arrived in the United States at Anchorage, 

Alaska, on February 28, 1980, and was admitted for permanent residence, "P2-2," as an unmarried daughter of a lawful permanent 

resident. The Immigration and Naturalization Service records of 

the applicant indicate that she is under deportation proceedings because it appears she was not an "unmarried" daughter of a lawful 

permanent resident at the tine she received her immigrant visa 

and at the time she entered the United States on February 28, 

1980, since she married Quirino Salazar in Cainta, Rizal, the Philippines, on January 9, 1979. The immigration judge, by his order of 

June 26, 1986, found the applicant to be deportable and granted 

her the privilege of voluntary departure from the United States. 

The issue raised in this case is when is an immigrant in an unlawful status for purposes of eligibility under section 245A of the 

Act. 

Section 245A(a.)(2)(A) states that "the alien must establish that 

he entered the United States before January 1, 1982, and that he 

has resided continuously in an unlawful status since such date and 

through the date the application is filed under this subsection." 

(Emphasis added.) If the alien entered as a nonimmigrant prior to 

January 1, 1982, the alien must. establish that either his authorized 

stay expired before such date or the alien's "unlawful status was 

known to the Government." Section 245A(a)(2)(B) of the Act (emphasis added). 

The definition of the term "unlawful status" is the most critical 

aspect of this statutory requirement. Given the plain meaning of 

section 245A(a)(2) of the Act, it is, clear that while nonimmigrants 

have to show their unlawful status was known to the Government, 

all other aliens, including immigrants, have to establish they were 

in an unlawful status as of January 1, 1982. 

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The term "unlawful status" is not defined in the statue. However, in the regulations implementing this provision the Service defined the meaning of "unlawful status . . . known to the government." 8 C.F.R. § 245a.1(d) (1988). These regulations state that an 

alien's unlawful status was known to the Government if, inter alb= 

(1) the Service had in its files sufficient information which showed 

the alien violated his nonimmigrant status; or (2) the Service made 

an affirmative determination prior to January 1, 1982, that the 

alien was subject to deportation proceedings. While this definition 

has been the subject of court litigation, the arguments in court 

have focused on the meaning of "known to the Government" and 

not on the term "unlawful status." See Ayuda, Inc. v. Meese, 687 F. 

Supp. 650 (D.D.C. 1988); Farzad v. Chandler, 670 F. Supp. 690 (N.D. 

Tex. 1987). 

Unlike the requirements for nonimmigrants, the statute does not 

require that an immigrant's unlawful status had to be "known to 

the Government" as of January 1, 1982. Accordingly, an alien must 

only prove he was in an "unlawful status" as of January 1, 1982. 

Although the Service has not defined "unlawful status" for the 

purpose of determining eligibility for an alien who did not enter 

the United States as a nonimmigrant, it seems clear, in light of the 

statutory framework, that we must accord this term a definition 

that is consistent with how it is being applied to nortimmigrants. 

Our conclusion is based on the following reasons. 

First, it is a well-established rule of statutory construction that 

"each part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious 

whole." 2A N. Singer, Sutherland Statutory Construction § 46.05 

(4th ed. 1984). Here, we would do violence to the statute if the 

words "unlawful status" that appear in the same subsection of the 

statute were to be interpreted differently because they do not 

appear in the same paragraph. Harmony can only be preserved if 

these words are given consistent meaning. Second, an alien is "lawfully admitted for permanent residence" if he is admitted in "accordance with the immigration laws, such status not having 

changed." Section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1982). 

An immigrant alien who is not admitted in accordance with the 

immigration laws has not been admitted lawfully. Matter of T-, 6 

I&N Dec. 136 (BIA, A.G. 1954). Thus, the alien remains in an "unlawful status" in the United States subject to deportation proceedings. Third, the case law is settled that an immigrant alien who is 

found excludable at entry has not been lawfully admitted to the 

United States. See Fedorenkc v. United States, 449 U.S. 490 (1981) 

(because the alien was not lawfully admitted to the United States, 

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he was ineligible for citizenship). Finally, it would. be disingenuous 

for the Service to conclude that an alien is in the United States 

unlawfully for purposes of deportation proceedings, but lawfully in 

the United States for purposes of adjudicating his application for 

temporary resident status under section 245A of the Act. 

Turning to the facts in this case, it is undisputed that an immigration judge found the applicant deportable on the ground her initial entry on February 28, 1980, was obtained by fraud. It is well 

settled that an alien who is excludable at entry does not acquire a 

lawful status. In re Langstaff, 716 F.2d 1439 (5th Cir. 1983) ("Admission is not lawful if it is regular only in form. The term 'lawfully' denotes compliance with substantive legal requirements, not 

merely procedural regularity. . ."); Monet v. INS, 791 F.2d 752 

(9th Cir. 1986); Matter of 7', supra (the alien's entry was not lawful 

because he obtained an immigrant visa by fraud). Here, because 

the applicant was found excludable at entry on. the ground of 

fraud, her status subsequent to that entry date has been unlawful. 

Because the alien committed fraud at entry, a deportable offense 

the Attorney General can waive for the purpose of granting temporary resident status, this case is remanded to permit the applicant 

to apply for such waiver. 8 C.F.R. § 245a.2(k) (1988) - If the waiver is 

denied, the applicant will be permitted to file an appeal without a 

fee to the Legalization Appeals Unit. 

To the extent that our decision in this case is inconsistent with 

any of our prior decisions denying section 245A relief on the 

grounds that the alien was an immigrant in a lawful status, we 

will reopen sua sponte those denials pursuant to 8 C.F.R. § 103.5(b) 

(1988). 

ORDER: The decision is withdrawn. The case is remanded for 

appropriate action and a decision consistent with the foregoing.