L-T-P

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 (BIA 2016)                                Interim Decision #3879




                        Matter of L-T-P-, Respondent
                            Decided December 1, 2016

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


(1) An applicant for adjustment of status under section 209 of the Immigration and
   Nationality Act, 

 (2012), must be either a refugee or an asylee.
(2) Cubans who were paroled into the United States under section 212(d)(5) of the Act,
   

(d)(5) (1976), between April 1, 1980, and May 18, 1980, are
   considered to have been admitted as refugees pursuant to the Refugee Act of 1980,
   

 Stat. 102.
(3) The respondent, who was paroled into the United States on August 25, 1980, with an
   Arrival/Departure Record (Form I-94) that was stamped “Cuban/Haitian Entrant
   (Status Pending)” and indicates that the purpose of his parole was for “Cuban
   Asylum,” is ineligible to adjust his status under section 209 of the Act because he was
   neither admitted as a refugee nor granted asylum.

FOR RESPONDENT: Joseph ThurdeKoos, Esquire, Orlando, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY:                         Yon Alberdi, Assistant
Chief Counsel
BEFORE: Board Panel:           COLE and PAULEY, Board Members; O’HERRON,
Temporary Board Member.
O’HERRON, Temporary Board Member:


    In a decision dated February 4, 2014, an Immigration Judge found
the respondent removable on his own admissions under section
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 

(a)(2)(A)(i)(II) (2012), as an alien who has been convicted of a
controlled substance violation, and denied his applications for relief from
removal. 1 The respondent has only appealed from the Immigration Judge’s
denial of his request for a waiver of inadmissibility under section 209(c) of
the Act, 

(c) (2012). The Immigration Judge found that he
lacked jurisdiction to grant such a waiver because the respondent is neither
1
   The Immigration Judge’s decision incorporates by reference a prior decision that was
entered on September 18, 2012.


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a refugee nor an asylee and is therefore ineligible for adjustment of status
under section 209 of the Act. The appeal will be dismissed.

             I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Cuba who was paroled into the
United States on August 25, 1980, as part of the Mariel Boatlift. His
Arrival/Departure Record (Form I-94) was stamped “Cuban/Haitian Entrant
(Status Pending).” The form indicates that he was paroled pursuant to
section 212(d)(5) of the Act, 

(d)(5) (1976), for the purpose
of seeking “Cuban Asylum.”
    On August 19, 1986, the respondent was convicted of three counts of
conspiracy to violate Maryland’s controlled dangerous substance laws. On
May 11, 2010, he applied for adjustment of status under section 245 of
the Act, 

 (2006), and section 1 of the Cuban Refugee
Adjustment Act of November 2, 1966, 

 Stat. 1161,
1161, as amended (“Cuban Adjustment Act”). The United States
Citizenship and Immigration Services (“USCIS”) denied the respondent’s
application for adjustment of status under section 245 of the Act on
July 22, 2010, determining that he was inadmissible under sections
212(a)(2)(A)(i)(II) and (a)(2)(C) of the Act, for which there is no available
waiver of inadmissibility.
    The Department of Homeland Security issued a notice to appear on
October 26, 2010, initiating removal proceedings and charging the
respondent with inadmissibility under section 212(a)(2)(A)(i)(II) of the Act.
At a removal hearing, the respondent applied for adjustment of status in
conjunction with a waiver of inadmissibility under section 209(c). The
Immigration Judge denied the application after determining that the
respondent lacked the requisite status as either a refugee or an asylee,
finding instead that he had been paroled into the United States under
section 212(d)(5) of the Act. The Immigration Judge also pretermitted the
respondent’s application for asylum and related relief. The respondent has
appealed only from the determination that he is ineligible for adjustment of
status and a waiver of inadmissibility under section 209(c) of the Act
because he was not admitted as a refugee or an asylee. 2

2
    The respondent also argues that his 1986 controlled substance conviction does not
preclude him from applying for a section 209(c) waiver since it is not a conviction for
illicit trafficking of a controlled substance under section 212(a)(2)(C) of the Act.
Because we conclude that the respondent is statutorily ineligible for adjustment of status
under section 209 of the Act, we need not decide whether his conviction renders him
ineligible for a section 209(c) waiver.


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                                       II. ISSUE
    To resolve whether the respondent can waive his inadmissibility under
section 209(c) of the Act, we must decide if he is a refugee or an asylee as a
result of his parole into the United States in August 1980 and is therefore
eligible for adjustment of status under sections 209(a) or (b) of the Act. We
review this question of law de novo. 

(d)(3)(ii) (2016).

                                   III. ANALYSIS
             A. Adjustment of Status Under Section 209 of the Act

    Section 209 of the Act authorizes the Attorney General to adjust the
status of certain aliens who have either been admitted as refugees under
section 207 of the Act, 

 (2012), or granted asylum under
section 208 of the Act, 

 (2012). Sections 209(a)−(b) of the
Act; 

, 1209.2 (2016). To be eligible for adjustment of
status, such refugees and asylees must, among other requirements, be
admissible to the United States. However, even if an applicant is
inadmissible, section 209(c) of the Act provides a mechanism for waiving
certain grounds of inadmissibility. 3 See Matter of Jean, 

 (A.G. 2002).
    The threshold question for determining the respondent’s eligibility for
adjustment of status under sections 209(a) or (b) of the Act is whether he
has been admitted as a refugee under section 207 or was granted asylee
status under section 208. Both sections require an applicant to qualify as a
“refugee,” as that term is defined in section 101(a)(42)(A) of the Act,

(a)(42)(A) (2012). However, section 207 of the Act only
applies to individuals who seek to be admitted as refugees from outside the
United States, whereas section 208 applies to those who apply for asylum
while physically present in the country. Sections 207(c)(1), 208(a)(1) of
the Act.


3
    Section 209(c) of the Act provides as follows:

         The provisions of paragraphs (4), (5), and (7)(A) of section 212(a) shall not be
       applicable to any alien seeking adjustment of status under this section, and the
       Secretary of Homeland Security or the Attorney General may waive any other
       provision of such section (other than paragraph (2)(C) or subparagraph (A), (B),
       (C), or (E) of paragraph (3)) with respect to such an alien for humanitarian
       purposes, to assure family unity, or when it is otherwise in the public interest.


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              B. History of Cuban Migration to the United States

    To determine whether the respondent was either admitted to the United
States as a refugee or obtained asylee status in the United States, we must
first consider the history of classifying Cubans who enter the United States
as “refugees” under the Act.
    By the time the respondent arrived in August 1980, the United States
had been accepting Cubans fleeing their country for more than two decades.
After Fidel Castro came to power in 1959, Cubans did not enter the United
States as refugees but were instead paroled into the country. H.R. Rep. No.
96-608, at 4 (1979). 4
    Between 1959 and 1966, former section 245(c) of the Act, 

(c) (1964), prohibited Cubans from adjusting their status from inside
the United States, because it required natives of countries that were
contiguous to the United States or of adjacent islands to leave the country
and reenter in order to become eligible for permanent resident status. See
H.R. Rep. No. 89-1978, at 2, 7 (1966); 112 Cong. Rec. H27,449, H27,450
(daily ed. Oct. 21, 1966) (statement of Rep. Rooney); 107 Cong. Rec.
S19,949–50 (daily ed. Sept. 26, 1961) (statement of Sen. Javits); see also
H.R. Rep. No. 96-608, at 4. In 1966, the Cuban Adjustment Act exempted
Cuban migrants from the requirement that they apply for permanent
residence outside the United States, but this exemption did not confer
“refugee” status on them under the immigration laws. See 112 Cong. Rec.
at H27,450.
    On March 17, 1980, Congress enacted section 201(b) of the Refugee
Act of 1980, 

 Stat. 102, 103 (“Refugee Act”),
which designated a maximum number of refugees that the United States
would admit each year, along with procedures to increase that number
in emergency situations. Edward M. Kennedy, Refugee Act of 1980,

4
    The Attorney General’s parole authority under section 212(d)(5) of the Act, which
was first authorized by the Immigration and Nationality Act of 1952, ch. 477, 

, was originally intended for the temporary admission of an otherwise inadmissible
alien. The practice of using parole for the admission of groups or classes of aliens, rather
than individuals, started with the Hungarian refugee crisis in 1956, and it was
subsequently used on an ad hoc basis to parole Cubans coming into the United States.
H.R. Rep. No. 96-608, at 3–4.
    In 1961, President Kennedy created the Cuban Refugee Program, a comprehensive
assistance program for Cuban migrants that defined the term “refugee” broadly for
purposes of its administration. John F. Thomas, Cuban Refugee Program, 1 Welfare Rev.
1, 1–2, 5–6 (1963), http://heinonline.org/HOL/Page?handle=hein.journals/welfinre1&id
=95&collection=journals. However, the program did not alter the fact that those Cubans
who were paroled into the country had “parolee” status. 

 at 5–6.


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15 Int’l Migration Rev. 141, 149–50 (1981), http://www.lirs.org/wpcontent/uploads/2016/06/Refugee-Act-of-1980.pdf; see also 126 Cong.
Rec. H1519, H1520 (daily ed. Mar. 4, 1980) (statement of Rep. Holtzman).
The relevant legislative history of the Refugee Act indicates that “all
refugees . . . will be admitted as refugees,” rather than as parolees. H.R.
Rep. No. 96-608, at 16; see also 126 Cong. Rec. at H1521. 5 The effective
date of the new refugee admission provisions was April 1, 1980. Refugee
Act, § 204(b)(1)(A), 94 Stat. at 108.
    Although the Refugee Act maintained the Attorney General’s parole
authority under section 212(d)(5) of the Act, the new scheme under section
207 was intended to replace the ad hoc use of parole to manage the influx
of Cubans coming to the United States during the previous two decades.
Kennedy, supra, at 143, 151; see also Refugee Act, § 203(f), 94 Stat. at
107–08; 126 Cong. Rec. at H1520. To that end, Congress added section
212(d)(5)(B) to the Act, which provided that the Attorney General could
not parole an alien “who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with respect to
that particular alien require that the alien be paroled into the United States
rather than be admitted as a refugee under section 207 of the Act.”
(Emphasis added.) Section 212(d)(5)(B) became effective 60 days after
the March 17, 1980, enactment of the Refugee Act. Refugee Act,
§ 204(b)(1)(B), 94 Stat. at 108.
    At the beginning of 1980, the large numbers of Cubans entering the
United States were considered to be refugees under the Refugee Act.
Kennedy, supra, at 153. On April 15, 1980, President Carter signed an
executive order to invoke the emergency provisions of the Refugee Act to
allow greater numbers of Cubans to be admitted as refugees. Exec. Order
No. 12,208, 

 (Apr. 16, 1980). However, as result of the
escalating crisis, “[t]he Administration abandoned the use of the Refugee
Act and refused to consider any Cubans as refugees.” Kennedy, supra, at
153. The Carter Administration eventually “settled on a policy of officially
considering the Cubans as ‘illegal’ entrants.” Id. at 152. On June 20, 1980,
5
    The Refugee Act also provided the definition of a “refugee,” which is set forth in
section 101(a)(42) of the Act. This definition conformed to that used by the United
Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, 19 U.S.T.
6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954), and the United Nations
Protocol Relating to the Status of Refugees, opened for signature Jan. 31,1967, 19 U.S.T.
6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1,
1968). See also Refugee Act, § 201(a), 94 Stat. at 102–03; H.R. Rep. No. 96-608, at 9;
126 Cong. Rec. at H1520. The previous definition of a “refugee” had applied only to
aliens fleeing communism or certain areas of the Middle East. Kennedy, supra, at 143;
see also 126 Cong. Rec. at H1520.


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President Carter announced “an additional ad hoc response to the Cuban
crisis by exercising parole authority for six months and seeking special
legislation to adjust the status of the refugees and provide resettlement
assistance. A new temporary status was created: ‘Cuban/Haitian Entrant
(Status Pending)’.” Id. at 155.
    For several weeks, the former Immigration and Naturalization Service
(“INS”) granted “conditional entrant” status to a number of aliens who
were outside the United States, and these aliens were subsequently
“paroled” into the country from abroad rather than being “admitted” as
refugees under new section 207 of the Act. See 7 USCIS Policy Manual,
pt. L, chp. 2 (updated Mar. 4, 2014), http://www.uscis.gov/policymanual
/HTML/PolicyManual-Volume7-PartL-Chapter2.html (“USCIS Policy
Manual”). To ensure that such conditional entrants were not placed at a
disadvantage relative to those who had been admitted as refugees, the
regulations implementing section 209 of the Act specified that “[e]very
alien processed by the [INS] abroad and paroled into the United States as a
refugee after April 1, 1980, and before May 18, 1980[,] shall be considered
as having entered the United States as a refugee under section 207(a) of the
Act.” 

(a)(2) (1982).
    Thus, only Cubans who were paroled into the United States between
April 1, 1980, and May 18, 1980, were considered to have entered as
“refugees” under the Refugee Act. Beginning on June 20, 1980, pursuant
to President Carter’s announcement, Cubans who came to the United States
were treated as parolees rather than refugees. Kennedy, supra, at 155. 6

              IV. APPLICATION TO THE RESPONDENT
    Considering the respondent’s case in light of the historical context
outlined above, we conclude that he is not eligible for adjustment of status
under either sections 209(a) or (b) of the Act in conjunction with a
waiver of inadmissibility under section 209(c) because he is neither a
refugee under section 207 of the Act nor an asylee within the meaning of
section 208.



6
   On August 5, 1980, the Cuban/Haitian Entrant Bill, which would have allowed for the
adjustment of status of refugees and provided resettlement assistance, was introduced in
both houses of Congress. See Kennedy, supra, at 155 (citing S. 3013, 96th Cong. (1980);
H.R. 7978, 96th Cong. (1980)). However, Congress took no action on the bill or on
Senator Kennedy’s substitute amendment that would have declared a Cuban/Haitian
Entrant to be a “refugee” under the Refugee Act of 1980. See id.


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                                     A. Refugee

    The respondent asserts that he was admitted as a refugee. At the outset,
we note that he has not established that he filed a Registration for
Classification as Refugee (Form I-590) with the INS at an office or
consular post abroad and presented himself for inspection at a port of entry.
See 

(a), 207.2, 207.4 (2016). Therefore, the respondent
did not apply for refugee status abroad and then procure “admission”
pursuant to any orderly refugee procedure.
    Furthermore, as discussed above, for several weeks after the effective
date of the Refugee Act of 1980, the INS granted “conditional entrant”
status to a number of aliens who were outside the United States, and these
aliens were subsequently paroled into the country from abroad rather than
being admitted as “refugees” under section 207 of the Act. By regulation,
every alien who was processed by the INS abroad and paroled into the
United States between April 1, 1980, and May 18, 1980, was considered to
have entered the United States as a “refugee.” 

(a)(2).
However, after June 1980, President Carter used parole authority to allow
Cubans to enter the United States. The record reflects that the respondent
was paroled into the United States on August 25, 1980. He therefore did
not enter this country as a “refugee.”
    The respondent recognizes that his parole document indicates only that
he was paroled pursuant to section 212(d)(5) of the Act. However, he
contends that he must have been paroled as a refugee under section
212(d)(5)(B) for “compelling reasons in the public interest” because of the
political and humanitarian concerns surrounding the Mariel Boatlift. He
also argues that his Form I-94 demonstrates that he was paroled as a
refugee because it is stamped “Cuban/Haitian Entrant (Status Pending)”
and reflects that his parole was granted pursuant to section 212(d)(5) of the
Act for the purpose of “Cuban Asylum.”
    We are not persuaded that the respondent’s Form I-94 demonstrates that
he was paroled as a “refugee” under section 212(d)(5)(B) of the Act. That
section prohibits the parole of an alien as a refugee absent compelling
reasons “with respect to that particular alien.” The respondent has not
provided any evidence that the Attorney General found, with respect to him
specifically, that “compelling reasons in the public interest” required him to
be paroled as a refugee under section 212(d)(5)(B) of the Act. And his
arrival via the Mariel Boatlift is not, by itself, sufficient to show that he was
identified as an alien who should be paroled for such compelling reasons.
    The respondent also asserts that he must have been designated as a
refugee because the INS did not fully implement the new refugee admission
procedures of the Refugee Act until 1981. However, President Carter had

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stopped using the refugee admission provisions of the Refugee Act—in
section 207 of the Act—to allow Cubans to come to the United States well
before the respondent entered in August 1980. In fact, the respondent
entered the United States 2 months after President Carter announced the use
of ad hoc parole authority in response to the crisis in June of 1980. He
therefore cannot be considered to be a refugee under the provisions of the
Refugee Act.
    We acknowledge the respondent’s argument that Cubans who entered
during the Mariel Boatlift were accorded a special immigration parole
status pursuant to the Refugee Education Assistance Act of 1980, 

(e), 

, 1810 (“Refugee Education Assistance
Act”). 7 However, the statute does not, on its face, designate Cuban/Haitian
Entrants as refugees. Id.; see also Garcia-Mir v. Meese, 

 (11th Cir. 1986) (recognizing the special parole status granted to
Cubans who entered during the Mariel Boatlift). In fact, as the respondent
acknowledges, the purpose of the provision was to treat Cuban and Haitian
migrants as refugees for purposes of the Federal refugee resettlement
program and most other Federal benefits and assistance. See Ruth Ellen
Wasem, Cong. Research Serv., RS 21349, U.S. Immigration Policy on
Haitian Migrants 8−9 (2011). There is no indication that the change was
intended to modify the immigration laws. See Garcia-Mir, 

.
    As the United States Court of Appeals for the Eleventh Circuit has
noted, the Refugee Education Assistance Act granted Cubans from the port
of Mariel, Cuba, special parole status “only for the purpose of providing
social welfare benefits.” 

. Notwithstanding this special status,
7
  Section 501(e) of the Refugee Education Assistance Act defines the term “Cuban and
Haitian entrant” as follows:

       (1) any individual granted parole status as a Cuban/Haitian Entrant (Status
     Pending) or granted any other special status subsequently established under the
     immigration laws for nationals of Cuba or Haiti, regardless of the status of the
     individual at the time assistance or services are provided; and
       (2) any other national of Cuba or Haiti—
         (A) who—
           (i) was paroled into the United States and has not acquired any other status
         under the Immigration and Nationality Act;
           (ii) is the subject of exclusion or deportation proceedings under the
         Immigration and Nationality Act; or
           (iii) has an application pending with the Immigration and Naturalization
         Service; and
         (B) with respect to whom a final, nonappealable, and legally enforceable order
       of deportation or exclusion has not been entered.


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the court concluded that Cubans, like the respondent, “were paroled under
the general alien parole statute, [section 212(d)(5) of the Act] and were
thus treated no differently than any other aliens.” 

 As a result, the
respondent’s special status as a Cuban/Haitian Entrant does not establish
that he is a “refugee” under section 207 of the Act.
    Finally, we find it significant that the USCIS has stated in its policy
manual that an alien designated as a Cuban Entrant is not a refugee under
section 207 of the Act.

     Since 1959, thousands of Cuban nationals have been paroled or admitted into the
     United States, many for humanitarian reasons but not as refugees. Although
     Cubans from the port of Mariel, Cuba, entered the United States shortly after the
     enactment of the Refugee Act of 1980 and may have documentation that seems to
     indicate refugee status, they do not adjust status as refugees. Such persons who
     have been physically present in the United States for one year can adjust status
     under the Cuban Adjustment Act of 1966.

USCIS Policy Manual, supra (emphasis added). Although we are not
bound by the USCIS’s policy manual, we find this provision to be further
confirmation of our interpretation of the meaning of the term “Cuban
Entrant.” See, e.g., Matter of C. Valdez, 

, 826 n.1 (BIA
2012) (noting that a USCIS policy memorandum is persuasive rather than
binding authority).
    For these reasons, we are not persuaded that the respondent acquired
“refugee” status within the meaning of sections 207 and 209(a) of the Act
when he was paroled into the United States on August 25, 1980. We
therefore conclude that he does not qualify as a “refugee” for purposes of
adjusting his status under section 209(a) of the Act in conjunction with a
section 209(c) waiver of inadmissibility.

                                     B. Asylee

    Once the respondent set foot in the United States, he became statutorily
ineligible for admission as a “refugee” under section 207 of the Act and
was obliged to pursue a claim for “refugee” status, if at all, by means of a
request for asylum under section 208. See Matter of M/V “Runaway,”

, 130–31 (BIA 1981). We must therefore next consider
whether the respondent was ever designated an “asylee” within the meaning
of sections 208 and 209(b) of the Act.
    The respondent’s Form I-94 includes the phrase “Cuban Entrant” in a
box corresponding to the purpose of his parole into this country.
However, this notation alone does not sufficiently establish that the
respondent is an “asylee” for purposes of section 209(b) of the Act. See

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Matter of Castellon, 

 (BIA 1981) (considering the
“extraordinary circumstances” under which Cubans entered the United
States in 1980 and noting that, because they lacked entry documents, they
were paroled into the United States, where they could apply for asylum);
see also Refugee Education Assistance Act, § 501(e), 94 Stat. at 1810.
    Finally, although the respondent filed an asylum application in 1980 in
accordance with section 208 of the Act, there is no indication that he was
ever granted asylum. Moreover, the Immigration Judge pretermitted the
respondent’s 2012 application for asylum, and the respondent did not
appeal that determination. Consequently, there is no basis for considering
the respondent to be an asylee under section 208 of the Act for purposes of
adjusting his status under section 209(b) of the Act with a section 209(c)
waiver.

                             V. CONCLUSION
   The respondent is not eligible to adjust his status under sections
209(a) or (b) of the Act in conjunction with a waiver of inadmissibility
under section 209(c) because he has not established that he was either
admitted as a “refugee” within the meaning of section 207 or granted
asylum under section 208 of the Act. Accordingly, the respondent’s appeal
will be dismissed.
   ORDER: The appeal is dismissed.




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