MATTER OF R 

In SECTION 249 Proceedings 

A-5760666 

Decided by Assistant Commissioner March 9, 1960 

Record of lawful entry—Not precluded under section 249 where record of lawful 

admission for permanent residence exists but was vitiated by subsequent 

illegal entry. 

Prior record of lawful admission in 1928 for permanent residence does not 

preclude adjustment of status under section 249 of the act where applicant's 

immigration status became unlawful as a result of Illegal reentry In 1954, 

and he has otherwise established his eligibility under the terms of the 

statute. 

APPLICATION: For creation of a record of lawful entry for permanent residence under the provisions of section 249 of the Immigration 

and Nationality Act., 

BEFORE THE ASSISTANT COMMISSIONER 

Discussion : The applicant, a 36 year old cinglo male, native and 

citizen of Germany, first entered the United States at New York, 

New York, on May 28, 1928, as a nonpreference quota immigrant 

for permanent residence. Since that date he has been absent from 

the United States on one occasion, about August 1, 1954, when he 

went to Canada and reentered at St. Albans, Vermont, about 

August 4, 1954. At the time of reentry, he falsely represented himself to be a native-born citizen of the United States and upon such 

claim gained entry. He was not then in possession of a reentry 

permit, border-crossing card, or other document authorizing his reentry into the United States as an alien. The applicant has served 

honorably in the Armed Forces of the United States for two 

periods, each for approximately one year. 

An order to show cause was issued on May 3, 1956, charging deportability under section 241 ( a) (2) of the Immigration and Nationality Act in that he entered without inspection. An expulsion 

hearing wan accorded the applicant by a special inquiry officer on 

May 17, 1956, and resulted in a finding of deportability on the 

charge stated with the granting of voluntary departure and preexamination. Neither of these privileges was pursued. 

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On January 13, 1959, the applicant filed an application pursuant 

to the provisions of section 249 of the Immigration and Nationality 

Act. Although there is a record of applicant's lawful admission to 

the United States in 1928, the district director granted the application and ordered that a record be created showing the applicant as 

having been lawfully admitted to the United States for permanent 

residence on May 25, 1959. The district director then certified the 

order to the Regional Commissioner who approved the order but 

has forwarded it to this office for review. 

The issue here involved is whether the provisions of section 249 

are applicable to persons in whose cases there exists a prior record 

of lawful admission for permanent residence. Section 249 provides, inter (Ilia: 

A record of lawful admission for permanent residence may, in the discretion of the Attorney General • • be made in the case of any alien • • • 

if no such record is otherwise available * * *. (Emphasis supplied.) 

A literal interpretation of the above-quoted provision would seem 

at first blush to preclude the applicability of section 249 to any person for whom a record of lawful entry can be found. However, 

section 101(a) (20) of the act defines the term lawfully admitted 

for permanent residence as "the status of having been lawfully 

accorded the privilege of residing permanently in the United States 

as an immigrant in accordance with the immigration laws, such, 

status not having changed" (emphasis supplied). It has been held 

that illegal reentry constitutes a change of status in the case of an 

alien who had been a lawful permanent resident (Matter of M—, 

5 I. & N. Dec. 642, 647). Hence, in such case no record of lawful 

admission is available within the meaning of section 249. 

Therefore, it is concluded that although an alien may have lawfully entered the United States for permanent residence, a subsequent illegal entry vitiates the prior record of lawful admission, 

and if the alien is otherwise eligible, he may be granted the benefits 

of section 249. This finding is not inconsistent with the decision 

in Matter of S—, 6 I. N. Dec. 392, holding that the fact that 

the status of a person lawfully admitted for permanent residence 

may have changed by reason of his subsequent deportability does 

not preclude the exercise of the discretionary authority contained in 

section 212(c) of the act, notwithstanding the definition contained 

in section 101(a) (20) of the act. 

In the instant case the applicant has been found to be unlawfully 

in the United States but has established the requisite continuous 

residence in this country since prior to June 28, 1940. His departure in 1954 F1,ab nut the result of exclusion or expulsion proceedings and his absence was temporary (Matter of P 

A-4577395, Int. Dec. No. 976). He also established that he is not 

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a member of one of the excludable classes enumerated in section 

249; that he is not ineligible to citizenship; and that he is a person 

of good moral character. He has established that he is eligible for 

the benefits of section 249. 

Order: It is ordered that the order of the district director directing that a record of lawful admission for permanent residence be 

created as of May 25, 1959, under the provisions of section 249 of 

the Trn migration and Nationality Act, as amended, be and same is 

hereby approved. 

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