JIMENEZ-LOPEZ

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, 

 160 (1988 & Supp. IV 1992), who is
paroled into the United States for criminal prosecution under 

(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) [

(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 

(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 

 (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, 

(a)(23) (1988).' The applicant was apparently
then paroled into the United States pursuant to 

(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, 

(a)(2)(B) (1988), and 

(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.2 The 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.
  2 We 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, 

 (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, 

(d)(5)(A) (Supp. IV
1992); Leng May Ma v. Barber, 

 (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, 

 (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, 

 (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, 

 (1988 &
Supp. IV 1992). See Matter of Lin, 

 (1982) (citing Luk
v. Rosenberg, 

 (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,

(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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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, 

 (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, 

 (BIA 1991) (clearing customs); Mutter of
Pierre, supra; see also Matter of Ching and Chen, 

(BIA 1984) (escaping from Service custody); Matter of A-, 

 (BIA 1961); Matter of A - 71, 

 (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, 

 (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, 

(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, 

(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. 4 Obviously, 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, 

(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
  3 We 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
                                                                     of status under
United States with a valid immigrant visa. In the context of adjustment
other provisions of the Act, such as sections 209, 245, and 245A, 

,
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_ 6 The 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.
  6 We 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. 

 Matter of Huang, supra.

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