The Board of Immigration Appeals (BIA) has sustained the motion filed by the Department of Homeland Security in the Matter of Paula Cruz de Ortiz, a native and citizen of the Dominican Republic. DHS argued that Ms. Cruz de Ortiz was not protected under Section 246(a) of the Act and was eligible for removal.
On 9 November 1989, Ms. Cruz de Ortiz was convicted in the United States District Court for the District of Puerto Rico of using an altered passport to gain entry into the United States, and was then deported. On 9 February 1995, Ms. Cruz de Ortiz was admitted to the United States as a conditional lawful permanent resident (LPR) and her conditions removed on 30 December 1996. In 2009, DHS informed Ms. Cruz de Ortiz that she was removable as an alien who was inadmissible at the time of entry by failing to disclose her attempted unlawful entry in 1989 with an altered document.
Ms. Cruz de Ortiz filed a motion to terminate the proceedings against her based on the prior decisions by the United States Court of Appeals for the Third Circuit in Garcia v. Attorney General of the United States, 553 F.3d 724 (3d Cir. 2009) and previously Bamidele v. INS 99 F.3d 557 (3d Cir. 1996), which found that the 5-year statute of limitations on initiating proceedings to rescind LPR status in Section 246(a) of the Act extends to deportation proceedings where the grounds of deportability are based on the alien's fraud or misrepresentation in obtaining adjustment of status. Ms. Cruz de Ortiz argued that she is ineligible for deportation and protected under Section 246(a) of the Act since the 5-year statute of limitations had lapsed by 2009. DHS opposed this motion on the grounds that the 5-year statute of limitations is only applicable to aliens who acquire that status through the process of adjustment, and since Ms. Cruz de Ortiz was admitted to the United States from abroad as a conditional lawful permanent resident and never actually adjusted status, she is not protected under Section 246(a).
Upon review, the Board of Immigration Appeals finds that Garcia and Bamidele both involved aliens who did in fact adjust their status in the United States and that these cases give no indication that Section 246(a) of the Act applies to Ms. Cruz de Ortiz who was admitted as a lawful permanent resident from a abroad and whose status was never adjusted. While the BIA agrees that adjustment of status can be treated as an "admission" and that aliens who have adjusted their status are assimilated to the same status as those who have been admitted at the border with an immigrant visa (See Matter of Alyazji, 25 I&N De. 397, 399-404 (BIA 2011), the converse cannot be true. Therefore, Ms. Cruz de Ortiz was found to be eligible for removal proceedings.