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Resolution
SECTION 245(I) OF THE IMMIGRATION AND
NATIONALITY ACT AS AMENDED
WHEREAS, The League of United Latin American
Citizens (LULAC) is committed to protecting the
human and civil rights of all immigrants living
and working in the United States; and
WHEREAS, action is needed to
amend and update section 245(i) of the
Immigration and Nationality Act (INA), 8 U.S.C.
section 1255(i), PL 103-307 Title V section
506(b). 108 Stat. 1724 (August 26, 1994). PL
106-554, Title XV 114 Stat. 2763 (December 21,
2000)l Sections 8 C.F.R. sections 245.10,
1245.10; 146 Cong. Rec. S.1123-01 (daily ed.
Oct. 27, 2007); 146 Cong. Rec. S11850-52 (daily
ed. December 15, 2000); and
WHEREAS, Section 245(i) is a
procedural humanitarian provision of the
Immigration and Nationality Act which
ameliorates the costs of having to travel to the
aliens country of origin for his or her
interview for lawful permanent residence. The
humanitarian rationale of this provision
recognizes that the alien’s costs of travel may
be significant and that the alien may be
required to remain in his or her country of
origin for many months, hence away from his or
her family and from employment. Section 245(i)
allows such a person to apply for adjustment of
status in the United States, i.e. to be
interviewed by an officer of the U.S.
Citizenship and Immigration Service instead of
an officer of the U.S. Consulate in the person’s
country of origin, notwithstanding the fact that
she/he entered without inspection, overstayed,
or worked without authorization. §245(i) last
sunset date was April 30, 2001. Therefore,
notwithstanding INA §245(a), or INA §245(c), a
person can apply for adjustment of status id he
or she paid a penalty fee of $1,00.00 if he or
she (and members of his or her family) is the
beneficiary of any labor certification or
petition under INA §204 that was filed on or
before April 30, 2001; and
WHEREAS, §245(i) was added to
the Immigration and Nationality Act by §506(b),
Department of Commerce, Justice, and State, the
Judiciary and Related Agencies Appropriations
Act, Act of August 26, 1994, Pub. L No. 103-317,
108 Stat. 1724 Effective Date, Sunset and Repeal
of Sunset Under §506(c) of said Act as
originally enacted, the amendment adding
subsection (i) was to take effect on October 1,
1994, and cease to have effect on October 1,
1997. However, following a series of interim
amendments, such section sunset date was
extended to January 14, 1998; and
WHEREAS, §245(i) was revived
under the LIFE Act amendments to include any
application or petition filed before April 30,
2001 if the person applying was physically
present in the United States on December 21,
2000. Eligible persons also included stowaways,
crewmen, and visa waiver entrants. Legal
Immigration Family Equity (LIFE) Act Amendments
of 2000, Title XV of Public Law 106-554, 114
Stat. 2763 (December 21, 2000); and
WHEREAS, certain conflicts
arising in the application of §245(i) before
January 14, 1998 and the one extended to sunset
on April 30, 2001, have been resolved without
recourse tot eh courts by the U.S. Citizenship
and Immigration Service (previously the
Immigration and Naturalization Service); and
WHEREAS, an early conflict
between §245(i) and another section of the
Immigration and Nationality Act, §212(a)(6)(A),
which makes entrants without inspection or
parole, inadmissible, was resolved in favor of
these illegal entrants under §245(i). Legal
Opinion, Martin, General Counsel, U.S.
Immigration and Naturalization Service, CO
212(a)(6)(A) (February 19, 1997). Also, the
physical presence on or before December 21, 2000
requirement in the most recent enactment of
§245(i) was held to apply only to labor
certifications and petitions filed after January
14, 1998. Memorandum, Cronin, Acting Executive
Associate Commissioner. U.S. Immigrationa dn
Naturalization Service, HQ 70/23. 1-P (January
26, 2001); and
WHEREAS, some circuit courts
offer a different reading of §245(i) from other
circuit courts. For instance, and applicant for
adjustment of status under §245(i) whi is
inadmissible for §212(a)(6)(C) and
§212(a)(9)(A)-(C) violations may apply for
adjustment proceedings if he or she lives in
Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon, and eastern and western
districts of Washington because the 9th Circuit
decided that §245(i) preceded the
inadmissibility ground of some parts of §212.
Perez-Gonzalez v. Ashcroft, 379 F. 3d 783 (9th
Cir. 2004) motion to reconsider denied 403 F. 3d
1116 (2005). Also see Acosta v. Gonzalez, 436
F.3d 550 (9th Cir. 2006) relying on
Perez-Gonzalez, id. Adjustment applicants under
§245(i) are also treated the same way by the
10th Circuit court. Padilla-Caldera v. Gonzalez,
426 F. 3d 1294 (10th Cir. 2005). Therefore,
adjustment applicants living in Colorado,
Kansas, New Mexico, Oklahoma, Utah, and Wyoming
are able to adjust in spite of previous illegal
entries and status violations committed before
December 21, 2000, the deadline for physical
presence in the united States per the LIFE Act
amendments. Everyone else living outside of the
jurisdiction of these courts, like Texas and
Louisiana, would be unable to have their illegal
entry under INA §212(a)(9)(C) (entry or reentry
to the United States after being unlawfully
present in the United States for an aggregate
period of more than one year) waived under
§245(i). A difference of opinion between the 5th
Circuit and the 9th as well as the 10th Circuits
is causing a huge difference in the way that
§245(i) is applied; and
WHEREAS, the 10th Circuit in
Padilla-Caldera found that Congress clearly
intended to override any application of
inadmissibility ground of §212(9)(C)(i)(l) with
the enactment of the LIFE Act amendments as well
as §245(i). The court reasoned, it is improbable
that Congress having explicitly allowed
applications for adjustment from aliens who have
been in the country illegally by requiring INS/USICE
to continue to superimpose the requirements of
the earlier conflicting statutory provision; and
WHEREAS, it is in the interest
of a uniform administration of a new §245(i) for
Congress to explicitly waive grounds of
inadmissibility under INA §212(a)(6)(A)-(C) in
accordance with the above-mentioned court
decisions. Furthermore, in those cases in which
an applicant for adjustment has been ordered
removed or deported. Congress should allow a
waiver of such grounds in the interest of family
unification or, in the alternative, in the
national, economic or security interest of the
country. In those cases in which an applicant
for adjustment has falsely represented himself
or herself, or who has conspired for someone to
falsely represent himself or herself, to be a
U.S. citizen for any purpose or benefit under
INA. Congress should allow a waiver of such
grounds in the interest of family unification
or, in the alternative, in the national,
economic or security interest of the country. A
waiver currently exists in INA §212(a)(6)(C)(ii)
for those who made such a claim before September
30, 1996. Updating this provision along with
§245(i) will substantially allow many to be
absorbed into our system of administration of
justice; and
WHEREAS, the new §245(i) needs
to sunset as of the date of its enactment, not
later, in order to prevent fraudulent attempts
to immigrate, such as in the case of those who
marry U.S. citizens before the sunset date in
order to circumvent our immigration laws. In
addition, the fingerprinting minimum age should
be reduced to 12 years of age in order to expand
the national fingerprint data system and be
better able to identify potential or current
members of gangs for social prevention programs;
and
WHEREAS, the transparency of
all those who are living in the United States
illegally, while awaiting for their interview of
lawful permanent residence in their countries of
origin, is in the best interest of the United
States. These are people who are entitled to
lawful permanent residence. Processing them
inside of the United States while enabling the
U.S. Citizenship and Immigration Service to
interview them, fingerprint them, identify
security risks, and decide who are eligible for
waivers of deportation or removal or other
inadmissibility grounds, will add to such
transparency and strengthen out security. Above
all, preventing the undue hardships upon
families and employers who have used our legal
system of immigration is in the best national
interest.
THEREFORE, BE IT RESOLVE THAT:
1) The revival of §245(i)
would help thousands of individuals who have
been unable to travel to their countries of
origin for their final interview for lawful
permanent residence due to lack of sufficient
funds, or lack of time, or because of the
demands of their families, especially those with
young children, or the demands of their jobs (A
new § 245(i) needs to sunset as of the date of
its enactment for those physically present in
the United States as of the date of the
enactment of section 245(i). In addition, the
fingerprinting minimum age should be reduced to
12 years of age.
2) The U.S. Congress needs to
inject uniformity to the application of §245(i)
in view of current discrepancies that exit in
different federal judicial districts of the
United States by explicitly waiving grounds of
inadmissibility under INA sections
212(a)(6)(A)-(C) and §212(a)(9)(A)-(C).
Furthermore, in those cases in which an
applicant for adjustment has been removed or
deported, a waiver of such grounds in the
interest of family unification or, in the
alternative, in the national, economic or
security interest of the country is in the best
interest of a uniform application of §245(i). In
those cases in which an applicant for adjustment
has falsely represented himself or herself, or
who has conspired for someone to falsely
represent himself or herself, to be a U.S.
citizen for any purpose or benefit under INA, a
waiver of such ground in the interest of family
unification, or in the alternative, in the
national, economic or security interest of the
country is in the best interest of the country
is in the best interest of a uniform application
of §245(i). Because a waiver currently exists in
INA §212(a)(6)(C)(ii) for those who made such a
claim before September 30, 1996, this waiver
should be updated for those who made such a
claim before the new date of §245(i)
Adopted this 14th day of July
2007.
Rosa Rosales
LULAC National President |
