Interim Decision #3211 

MATTER OF JIMENEZ-LOPEZ 

In Exclusion Proceedings 

A-29279152 

Decided by Board November 3, 1993 

An alien admitted for lawful temporary residence under section 210 of the 

Immigration and Nationality Act, 8 U.S.C. § 1 160 (1988 & Supp. IV 1992), who is 

paroled into the United States for criminal prosecution under 8 C.F.R. § 212.5(a)(3) 

(1990) does not subsequently make an "entry" as that term is defined under the 

immigration laws when the Immigration and Naturalization Service adjusts his status to 

that of a lawful permanent resident under section 210(a)(2)(B) of the Act, and 8 C.F.R. 

210.5(a)(2) (1990). 

EXCLUDABLE: Act of 1952—Sec. 212(a)(23) [8 U.S.C. § 1182(a)(23)]—Trafficker 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE: 

Pro se Leo Abbott 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

At the conclusion of a hearing conducted on March 10, 1993, an 

immigration judge terminated these exclusion proceedings and certified her decision to us for review pursuant to 8 C.F.R. §§ 3.1(c) and 

3.7 (1993). In an order dated April 19, 1993, we remanded the record 

to the immigration judge for preparation of a transcript of the 

proceedings and her oral decision and for compliance with the 

requirements of certification as set forth at 8 C.F.R. § 3.7 (1993). A 

transcript of the proceedings and the decision of the immigration 

judge was prepared and forwarded to the applicant and the attorney 

for the Immigration and Naturalization Service. Both have submitted 

statements in support of their respective positions and we deem the 

case ripe for our review. The record will be remanded to the 

immigration judge for further proceedings. 

The facts in this case are not in dispute. The applicant is a 32-yearold native and citizen of Mexico who applied for lawful temporary 

residence under the special agricultural worker ("SAW") provisions set 

forth at section 210 of the Immigration and Nationality Act, 8 U.S.C. 

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§ 1160 (1988 & Supp. IV 1992), on June 2, 1988. That application was 

approved on November 10, 1989. 

On April 8, 1990, the applicant was returning from a trip to Mexico 

and presented himself for inspection as a returning temporary 

resident. Because the motor vehicle in which the applicant was 

traveling was found to contain marijuana, the applicant was arrested 

and charged with excludability as an alien who the immigration officer 

had reason to believe was a drug trafficker under section 212(a)(23) of 

the Act, 8 U.S.C. § 1182(a)(23) (1988).' The applicant was apparently 

then paroled into the United States pursuant to 8 C.F.R. § 212.5(a)(3) 

(1990) for the purpose of his criminal prosecution. 

On October 1, 1990, the applicant was convicted, in the United 

States District Court for the Southern District of California, of 

importation of a controlled substance and possession of a controlled 

substance with intent to distribute. He was sentenced to a concurrent 

term of imprisonment of 46 months and is currently serving that 

sentence. 

On December 1, 1990, the Immigration and Naturalization Service 

adjusted the applicant's status as a lawful temporary resident to that of 

a lawful permanent resident pursuant to the provisions of section 

210(a)(2)(B) of the Act, 8 U.S.C. § 1160(a)(2)(B) (1988), and 8 C.F.R. 

§ 210.5(a)(2) (1990). No appeal is pending from that adjustment. 

The immigration judge, at a hearing conducted on March 10, 1993, 

terminated the exclusion proceedings on the ground that the Service's 

adjustment of the applicant's status to that of a lawful permanent 

resident after the institution of proceedings was the equivalent of 

admitting the applicant into the United States as a resident alien. The 

immigration judge added that rescission of the applicant's lawful 

permanent resident status might be proper, but concluded that the 

Service could no longer seek to exclude the applicant as a drug 

trafficker. 

On certification, the applicant claims that his case was heard and 

the proceedings terminated, thus making applicable the doctrine of res 

judicata. He requests to be notified if the decision is "holding," as he is 

under the impression that the immigration judge's decision should 

stand.2The Service, for its part, argues that it is without authority to 

This section of the Immigration and Nationality Act is cited in its form before the 

redrafting and redesignation of section 212 by the Immigration Act of 1990, Pub. L No. 

101-649, 104 Stet. 4978. This later redesignation has no impact on the issues in this 

case. 

2We note that the immigration judge reserved both parties' right to appeal and 

granted the Service's request that the case be certified to this Board should neither party 

perfect an appeal. Although the applicant's statement in his brief would initially lead us 

to believe that he was misinformed about the procedural posture of this case, our letter 

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Interim Decision #3211 

rescind the applicant's status after adjustment under section 

210(a)(2)(B) of the Act and that such rescission is therefore not a 

condition precedent to the commencement or continuation of exclusion proceedings. The parties' arguments notwithstanding, we believe 

that the issue now before us is whether pending exclusion proceedings 

must be terminated after adjustment of an applicant's status from 

lawful temporary. residency to that of a lawful permanent resident 

under section 210(a)(2)(B) of the Act. We conclude that they need not. 

An alien who is seeking to enter the United States who does not 

appear to be admissible clearly and beyond a doubt is properly placed 

in exclusion proceedings by operation of section 235 of the Act, 8 

U.S.C. § 1225 (1988 & Supp. IV 1992). Such an alien is not 

considered to have entered the United States, even if he or she is 

paroled into this country for humanitarian or other purposes. See 

section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (Supp. IV 

1992); Leng May Ma v. Barber, 357 U.S. 185 (1958). In addition, it is 

well established that an alien's status as a lawful permanent resident of 

the United States does not affect the propriety of exclusion proceedings, although such status may have an impact on the course of the 

proceedings. See, e.g., Landon v. Plasencia, 459 U.S. 21 (1982) 

(holding that due process applies in exclusion pxoceedings when the 

alien sought to be excluded is a lawful permanent resident); see also 

Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988), and cases cited 

therein (stating that the burden rests on the Service to establish 

excludability of lawful permanent residents). On the other hand, aliens 

who have "entered" the United States, by whatever means, must have 

their right to remain in this country adjudicated in deportation 

proceedings under section 242 of the Act, 8 U.S.C. § 1252 (1988 & 

Supp. IV 1992). See Matter of Lin, 18 I&N Dec. 219 (1982) (citing Luk 

v. Rosenberg, 409 F.2d 555 (9th Cir. 1969)). The question before us 

therefore is whether, after the applicant's parole into the United States, 

the Service's adjustment of his status to that of a lawful permanent 

resident under section 210(a)(2)(B) of the Act caused him to make an 

entry into this country as a matter of law. 

The term "entry" is defined in part by section 101(a)(13) of the Act, 

8 U.S.C. § 1101(a)(13) (1988), as "any coming of an alien into the 

United States, from a foreign port or place or from an outlying 

possession, whether voluntary or otherwise." We have further refined 

this definition to require that the following elements be met before an 

alien effects an entry into the United States as a matter of law: first, 

to the applicant affording him additional time in which to submit a brief, to which he 

responded with a second copy of the same, has sufficiently advised him of the issue 

before this Board and hence the pending nature of these proceedings. 

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Interim Decision #3211 

there must be a crossing into the territorial limits of the United States; 

second, an alien must be inspected and admitted by an immigration 

officer, or, in the alternative, actually and intentionally evade such 

inspection; and, finally, the alien must be free from official restraint. 

See Matter of Pierre, 14 I&N Dec. 467 (BIA 1973). 

In this case, as the applicant has been paroled into this country, 

there has been a crossing into the territorial limits of the United States. 

With respect to the second element, the record establishes that the 

applicant did not evade inspection, but rather presented himself for 

same. As such, although the applicant has been inspected, he has not 

been "admitted" since he was merely paroled into the United States 

for purposes of prosecution. See Matter of Lin, supra. 

It is therefore clear that the applicant was properly subject to 

exclusion at least up to the time that his status was adjusted to that of a 

lawful permanent resident of the United States. An alien. may, 

however, "enter" the United States by virtue of circumstances arising 

subsequent to his initial arrival and inspection. See, e.g., Matter of 

Patel, 20 I&N Dec. 368 (BIA 1991) (clearing customs); Mutter of 

Pierre, supra; see also Matter of Ching and Chen, 19 I&N Dec. 203 

(BIA 1984) (escaping from Service custody); Matter of A-, 9 I&N Dec. 

356 (BIA 1961); Matter of A -71, 3 I&N Dec. 178 (BIA 1948). We 

therefore proceed to the question of whether the Service's adjustment 

of the applicant's status after his parole into the United States under 

section 210(a)(2)(B) of the Act constituted such an admission as a 

matter of law. 

"Admission" has been defined as occurring when an inspecting 

officer communicates to an applicant for admission his or her 

determination that the applicant is not inadmissible. This communication normally takes place when the inspector allows the alien to pass 

through the port of entry. See Matter of Patel, supra; Matter of 

Areguillin, 17 I&N Dec. 308 (BIA 1980). This is not, however, the only 

instance in which an alien's admissibility is determined and that 

determination communicated to the alien. For example, with respect 

to adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 

(1988 & Supp. IV 1992), it is well established that an applicant for 

relief under that provision is "assimilated" to the position of an alien 

seeking entry into this country because a grant of such relief is 

contingent upon a favorable adjudication of the applicant's admissibility under section 212 of the Act. Matter of Connelly, 19 I&N Dec. 156 

(BIA 1984). In the case of an alien who otherwise meets the Pierre 

requirements of a territorial crossing and freedom from official 

restraint, his or her adjustment of status under section 245 would 

logically provide the final element of "admission" and would thereby 

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Interim Decision #3211 

create an entry, effective as of the date of adjustment. Cf. Matter of 

Lin, supra. 3 

Adjustment of status under section 210(a)(2) of the Act involves a 

different procedure, however. That section adjusts the status of an 

alien granted lawful temporary status under section 210(a)( I) to that of 

a lawful permanent resident on the basis of a fixed schedule, without 

regard for the alien's admissibility at that time. See Matter of Juarez, 

20 IeeN Dec. 340, 345 (BIA 1991). This mechanism is perhaps 

unique under the immigration laws, since an alien admitted for 

temporary residence under section 210(a)(1) may apparently adjust his 

or her status to that of a lawful permanent resident even if physically 

outside of the United States. 4Obviously, such an alien cannot be said 

to make an "entry" until his or her subsequent return to this country. 

It is true that section 210(a)(3)(B) of the Act, 8 U.S.C. 

§ 1160(a)(3)(B) (Supp. IV 1992), permits the Attorney General to deny 

a lawful temporary resident adjustment of status under section 

210(a)(2) and terminate temporary resident status upon, inter alia, the 

alien's commission of an act that renders him or her inadmissible 

under section 212(a) of the Act. However, the language of this 

provision is permissive in nature only; it does not mandate an 

examination of a lawful temporary resident's admissibility before 

adjustment to permanent status, such as is the case with respect to 

adjustment under section 245. 

Turning to the facts of this case, the record reflects that the Service 

clearly could have proceeded to deny the applicant's adjustment of 

status under section 210(a)(2) of the Act and to terminate his lawful 

temporary status, but did not. We do not find this omission, however, 

to constitute a new determination of the applicant's admissibility to 

the United States, as the Service was not obliged to make such a 

3We note that the administrative mechanism whereby an alien obtains lawful 

permanent residence under section 245 has been held not to constitute an entry in and of 

itself for immigration purposes. See Matter of Connelly, supra (finding no "territorial 

crossing" under Pierre test). That case, however, holds only that an alien who has 

already entered the United States as a matter of law does not again effect an entry on the 

basis of his or her subsequent adjustment of status. In the case of an alien paroled into 

the United States, an entry has not yet been made, as he or she has not been "admitted." 

The communication of the alien's admissibility when later adjusted under section 245 

completes the final element necessary to enter this country under the Pierre definition. 

That alien's "entry" date would thus occur at the time his or her status was adjusted and 

not on the earlier date when the alien physically arrived in this country. 

4 In most cases, an alien obtains lawful permanent resident status upon arriving in the 

United States with a valid immigrant visa. In the context of adjustment of status under 

other provisions of the Act, such as sections 209, 245, and 245A, 8 U.S.C. §§ 1159, 

1255, and 1255a (1988 & Supp. IV 1992), an alien must be physically present in the 

United States. 

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Interim Decision #3211 

finding before the automatic adjustment of the applicant's status took 

place on December 1, 1990. We further note in this regard that the 

applicant's conviction took place 2 months before his status was 

adjusted under section 210(a)(2) of the Act. It is possible the Service 

would not have had time to terminate his temporary residence in that 

time period. Had the applicant's conviction occurred a matter of days 

before the automatic adjustment of his status, it is clear the Service 

would have been unable to terminate his temporary status before 

adjustment to permanent status. The applicant, therefore, cannot be 

assimilated to the position of an alien seeking entry, as no new 

inspection took place. It follows that he was accordingly not "admitted" into this country when his status was adjusted on December 1, 

1990, and since the applicant has not been admitted to the United 

States, he has not made an entry as a matter of law. Matter of Patel, 

supra; Matter of Pierre, supra.s 

The necessary conclusion is that these exclusion proceedings are still 

proper despite the applicant's adjustment of his status to that of lawful 

permanent resident under section 210(a)(2) of the Act_ 6The following 

orders shall accordingly be entered. 

ORDER: The order of the immigration judge entered on 

March 10, 1993, terminating these exclusion proceedings, is vacated. 

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings. 

The record reflects that the applicant was paroled into the United States for purposes 

of prosecution and is currently incarcerated. It is therefore possible that he is unable to 

establish that he has been "free from official restraint," the final prong of the Pierre test. 

See Matter of Patel, supra. We are unable from a review of the record to determine 

whether or not this is the case, but, given our holding that the applicant has not been 

admitted to the United States, we find it unnecessary to remand the record for further 

findings in this regard. 

6We note in passing that the applicant's status as a lawful permanent resident is not 

completely without effect In these proceedings. Fur example, the burden of proof is now 

on the Service to establish the applicant's inadmissibility, and the full panoply of due 

process considerations now applies to these exclusion proceedings. Landon v. Plasencia, 

.supra; Matter of Huang, supra. 

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