Interim Decision #3235 

MATTER OF GRINBERG 

In Deportation Proceedings 

A-71571961 

Decided by Board November 22, 1994 

Notwithstanding a clerical error in the redundant designation of "section 245(1)" of 

the Immigration and Nationality Act, to be codified at 8 U.S.C. § 1255(i), immigration 

judges have jurisdiction to entertain applications for relief based on both the section 

245(i) that was created through section 506(b) of the Departments of Commerce, 

Justice, and State Appropriations Act for 1995, Pub. L. No. 103-317, 108 Stat. 1724, 

1765, and the separate section 245(i) that was created through section 130003 of the 

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 

Stat. 1796, 2024. 

CHARGE: 

Orden Act of 1952—Sec. 241(a)(1)(3) [8 U.S.C. § 1251(a)(1)(13)1—Nonimrnipant—remained longer than permitted 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Jolanta Kasztelewicz, Esquire Margaret Reichenberg 

David M. Sturman, Esquire General Attorney 

The Atrium 

16530 Ventura Boulevard, Suite 306 

Encino, California 91436 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes, 

Alternate Board Member 

In a decision dated October 4, 1994, an immigration judge found 

the respondent deportable as a nonimmigrant who remained longer 

than permitted, granted the respondent voluntary departure, and 

denied his Motion to Request Additional Relief in the form of an 

adjustment of status based on section 245(i) of the Immigration and 

Nationality Act (to be codified at 8 U.S.C. § 1255(i)). The immigration judge found that he lacked jurisdiction to consider such an 

application for relief, because the version of section 245(i) upon which 

the respondent sought to rely had been superseded by subsequent 

legislation- On October 6, 1994, the immigration judge certified his 

decision to this Board for review pursuant to regulations at 8 C.F.R. 

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§ 3.1(c) (1994). Upon consideration, the decision of the immigration 

judge will be vacated, and the record will be remanded for further 

proceedings. 

The sole issue presented for our resolution upon certification is 

whether an immigration judge has jurisdiction over applications for 

relief based upon "section 245(i)" of the Act, as enacted on August 16, 

1994, through section 506(b) of the Departments of Commerce, 

Justice, and State Appropriations Act for 1995, Pub. L. 14b. 103 -317, 

108 Stat. 1724, 1765 ("Appropriations Act"), in light of the unusual 

fact that a new "section 245(i)" was enacted less than 3 weeks later 

through section 130003 of the Violent Crime Control and Law 

Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2024 

("Crime Control Act").' We conclude that both sections 245(i) are 

effective, that they create separate adjustment eligibility provisions, 

and that the immigration judge has jurisdiction over applications 

based on these subsections. 

We begin by observing that the object of statutory construction is to 

determine congressional intent with respect to the legislation enacted. 

The paramount index of congressional intent is the plain meaning of 

the words used in the statute taken as a whole. INS v. CardozaFonseca, 480 US_ 421, 431 (1987); Phinpathya 17- INS, 464 U.S. 183, 

189 (1984). Whenever possible, statutes should be read as consistent 

with one another. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 

468 (1982). Accordingly, we must not lightly presume that existing law 

is repealed by subsequent legislation in the absence of clear legislative 

language expressing an intent to repeal. lA N. Singer, Sutherland 

Statutory Construction §§ 23.09, 23.10 (4th ed. 1985). 

An examination of the words Congress used in the Crime Control 

Act shows no evidence of any intent to repeal the original section 

245(i), which Congress had enacted less than 3 weeks earlier in the 

Appropriations Act, and which had not even gone into effect. Since 

there was no expressed repeal of the provision in question, a 

conclusion that the original section 245(i) was repealed could only be 

reached upon a finding of repeal by implication. In this case, the 

immigration judge made such a finding, determined that the later 

enacted statute repealed the prior statute, and concluded that he had 

no jurisdiction to entertain the respondent's application for adjustment of status. 

We disagree with the immigration judge's conclusion. As the 

Supreme Court has stated repeatedly over the course of more than a 

'The legislative vehicles for these Acts, H.R. 4603 and H.R. 3355, 103d Congress, 2d 

Sess. (1994), will be referred to as the "Appropriations Bill" and the "Crime Bill," 

respectively. 

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Interim Decision #3235 

century and a half, it is a cardinal rule of statutory construction that 

repeals by implication are not favored. County of Yakirna v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 

(1992); United States v. Fausto, 484 U.S. 439 (1988); Georgia v. 

Pennsylvanicz R.R. Co., 324 U.S. 439, 456-57 (1945); Posadas v. 

National City Bank, 296 U.S. 497 (1936); Wood v. United States, 41 

U.S. 342 (18 42). Indeed, repeal by implication will not be found unless 

intent to repeal is "clear and manifest." Rodriguez v. United States, 

480 U.S. 522, 524 (1987) (citations omitted). Thus, "'[i]n the absence 

of some affirmative showing of an intention to repeal, the only 

permissible justification for a repeal by implication is when the earlier 

and later statutes are irreconcilable."' St. Martin Evangelical Lutheran 

Church v. South Dakota, 451 U.S. 772, 787 (1981) (quoting Morton v. 

Mancari, 411 U.S. 535, 550 (1974); see also United States v. Fausto, 

supra (requhing "clear repugnancy"); Georgia v. Pennsylvania R.R. 

Co., supra. 

Applying these principles to the instant case, we observe that the 

plain substantive language of the two enactments in question is not 

irreconcilable, nor even slightly ambiguous as to the intended effect. 

Rather, the relevant language evinces> a clear congressional intent to 

add two separate, new provisions to existing law. Specifically, section 

506(b) of the Appropriations Act created an exception to the usual 

adjustment of status provisions, so that certain aliens who are out of 

legal status, such as the respondent here, may nevertheless apply for 

adjustment under section 245(a) of the Act. Section 130003 of the 

Crime Control Act, on the other hand, offers the new possibility of 

adjustment of status to a separate, newly created category of nonimmigrant aliens who have fulfilled a promise to supply the United States 

with certain critical information. The substance of neither of these 

provisions conflicts in any way with the substance of the other. 

Further, as the Immigration and Naturalization Service correctly 

points out in its well-written brief in this matter, the legislative history 

of the Crime Bill does not indicate an intent to repeal any existing law 

under section 245. The Crime Control Act and the Appropriations Act 

both indicates that the relevant amendment in each case creates a 

"new" subsection under section 245 and that no existing portion of 

that section is to be repealed. Each act states: "Section 245 of the 

Immigration and Nationality Act, as amended (8 U.S.C. 1255), is 

amended by .adding at the end thereof the following new subsection." 

(Emphasis added). 

We note that the bills in question made their way through the 

legislative process more or less simultaneously. It could not have been 

known with certainty when the relevant provisions were introduced 

that either or both of the bills would be enacted as written—much less 

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which would be enacted first. Thus, it is no surprise that each bill 

designated its "new" subsection identically, as subsection "(i)," to 

follow the existing subsections (a) through (h). All the relevant 

evidence indicates that in the period of less than 3 weeks between the 

passage of the Appropriations Bill and the Crime Bill, the duplication 

of subsection "(i)" in the Crime Bill was simply overlooked. 

In view of the foregoing, we conclude that the redundant subsection 

designation at section 245 of the Act is properly understood for what it 

clearly is, namely, a clerical oversight. Since there exists no inconsistency in the substantive language of the legislation in question, and 

since there was no express repeal, our duty is to give force and effect to 

both acts of Congress, and not to a clerical error. United States v. 

Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83 (1932). 2 

Accordingly, we conclude that the immigration judge in this case 

had jurisdiction to entertain the respondent's application for adjustment of status under section 245(i) of the Act, and denial of the 

respondent's prehearing "notion to apply for relief under this subsection was unnecessary. Consequently, the decision of the immigration 

judge will be vacated and the record will be remanded for further 

proceedings. 

ORDER: The decision of the immigration judge is vacated. 

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing 

opinion. 

2The Service argues erroneously in its brief that the Board owes substantial deference 

to the Service's own administrative interpretation of the statutory law. See 59 Fed. Reg. 

51,091, 51,094 (1994). However, we exercise our judgment independently of the Service, 

and our decisions are binding on all officers and employees of the Service in the 

administration of tho Aot. 8 C.F.R.§§ 2.1, 3.0, 3.1(e) (1994) (setting forth the authority 

of the Board); see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) 

(discussing the duty of the Board to exercise its own independent judgment where the 

Attorney General has, by regulation, delegated this responsibility to the Board). 

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