U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike. Suite 2000

Falls Church, Virginia 22041

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Gonzalez, Raed Olivieri DHS/ICE Office of Chief Counsel - HOU
Gonzalez Olivieri LLC 126 Northpoint Drive, Suite 2020
2200 Southwest Frwy Ste 550 Houston, TX 77060
Houston, TX 77098

Name: GOMEZ, SAMUEL A 090-921-930

Date of this notice: 4/6/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

/7

I

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.

Usertea m: Docket

For more unpublished BIA decisions, visit

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Cite as: Samuel Gomez, A090 921 930 (BIA April 6, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals
' Executive Office for Immigration Review

. Falls Church, Virginia 22041

File: A090 921 930 - Houston, TX Date:

APR - 6 2017
In re: SAMUEL GOMEZ a.k.a. Samuel Martinez Gomez a.k.a. Samuel Martinez

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act (8 U.S.C. 1182(a)(6)(A)(i)] -

Present without being admitted or paroled

APPLICATION: Adjustment of status

This case has a lengthy procedural history. On May 17, 2013, an Immigration Judge granted
the Department of Homeland Security's ("DHS") motion to pretermit the respondent's
application for adjustment of status under section 245(a) of the Immigration and Nationality Act
8 U.S.C. 1255(a). 1 In reaching his decision, the Immigration Judge found that the respondent
did not meet his burden to establish that he had been lawfully admitted to the United States in
1993 as she claimed.

The respondent appealed, and on August 22, 2014, the Board dismissed the appeal finding
that the record did not show that the respondent was admitted as a temporary resident in 1993 as
he claimed or paroled into the United States as required by section 245(a) of the Act. We also
concluded that even if he was admitted in 1993 as a temporary resident, the record reflected that
his temporary resident status expired in 1994. We concluded that when the temporary resident
status expired, the respondent's status reverted to that of an alien present in the United States
without being admitted or paroled. Our conclusion was based on 8 C.F.R. 245a.2(u)(4), which
provides as follows:

Return to unlawful status after termination. Termination of the status of any alien
previously adjusted to lawful temporary residence under section 245A(a) of the
Act shall act to return such alien to the unlawful status held prior to the
adjustment, and render him or her amenable to exclusion or deportation
proceedings under section 236 or 242 of the Act, as appropriate.

8 C.F.R. 245a.2(u)(4).
1
The Immigration Judge issued a prior decision on September 19, 2012, to this effect but the
Immigration Judge gave the respondent additional time to identify any other relief for which he
may have been eligible. In his May 17, 2013, decision, the Immigration Judge entered his final
order granting the DHS's motion to pretermit (I.J. dated May 17, 2013, at 2).

Cite as: Samuel Gomez, A090 921 930 (BIA April 6, 2017)
A090 921 930

On November 14, 2014, the respondent filed with the Board a timely motion to reopen
alleging ineffective assistance of counsel pursuant to Matter of Lozada, 19 l&N Dec. 63 7
(BIA 1988). We denied the motion on January 26, 2015.

The respondent filed a petition to review our decisions with the United States Court of

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Appeals for the Fifth Circuit, under whose jurisdiction this case arises. On April 20, 2016, the
Fifth Circuit affirmed the Board's conclusion that the respondent was never lawfully admitted
and denied the petition for review. Gomez v. Lynch, 819 F.3d 769 (5th Cir. 2016), superseded by
831 F.3d 652 (5th Cir. 2016).2

After that decision, the respondent and the DHS filed with the Fifth Circuit a joint motion to
vacate because the DHS located evidence confirming that the respondent had been admitted into
the United States in 1993 as the respondent had previously claimed. The Fifth Circuit granted
the motion to vacate its April 20, 2016, opinion and accepted briefing from the parties on the
interpretation of 8 C.F.R. 245a.2(u)(4).

The case is now before the Board pursuant to the Fifth Circuit's August 5, 2016, remand
order. Gomez v. Lynch, 831 F.3d 652 (5th Cir. 2016). The court agreed with the respondent that
his 1993 admission, which occurred while he held temporary resident status, was not affected by
his unlawful status in the United States. Id. at 658, 662.

The court reasoned that status and admission are fundamentally different concepts. Id. at
658-60. Citing to Matter of Quinlantan, 25 l&N Dec. 285 (BIA 2010), the court noted that an
admission is defined in wholly factual and procedural terms. An alien "who presents himself at
an immigration checkpoint, undergoes a procedurally regular inspection, and is given permission
to enter the United States has been admitted, regardless of whether he had any underlying legal
right to do so." Id. at 658. The court explained status as the type of permission to be present in
the United States. The Fifth Circuit stated that "[because] the concepts are separate, an alien can
be admitted despite the absence of any lawful status, as when an immigration officer accidentally
processes him through a checkpoint." Id. at 658-59. Conversely, "an alien who was admitted in
a lawful status can acquire unlawful status, as by overstaying a visa - but that does not mean he
was never admitted." Id. at 659.

The court also explained that section 245(a) of the Immigration and Nationality Act, 8 U.S.C.
1255(a) includes the admission/status distinction by providing separate bars to adjustment of
status with different exceptions and is addressed in different subsections of the Act. Finally, the
court explained that the regulatory language of 8 C.F.R. 245a.2(u)(4) that provides for an alien
to return to a previous unlawful status does not undo a factual admission that occurred during the
time when the alien was in lawful status. Id. at 662.

2
The court also affirmed the denial of the motion to reopen.

Cite as: Samuel Gomez, A090 921 930 (BIA April 6, 2017)
A090 921 930

Tlius, although the respondent returned to his previous unlawful status when his temporary
resident status expired, his lack of status did not undo his historical, factual admission for
purposes of adjustment of status pursuant to section 245(a) of the Act. We conclude that a
remand is warranted for the Immigration Judge to consider the respondent's application for
adjustment of status under section 245(a) of the Act. On remand the parties should have the
opportunity to update the record regarding the respondent's application.

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Accordingly, the following orders will be entered.

ORDER: The Board's August 22, 2014, decision is vacated.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and for the .entry of a new decision.

'FORTHE

Cite as: Samuel Gomez, A090 921 930 (BIA April 6, 2017)