23.4 Presumption of Lawful Admission and Creation of Record under 8 CFR 101.

(a) General .

The law provides for an alien to be presumed to be a lawful permanent resident of the U.S. if he or she can show presence in the U.S. under any of the standards set forth in 8 CFR 101.1 . It is important to understand that this process does not involve a granting of adjustment of status, but rather a recognition of a status. With the exception of applications under 8 CFR 101.2, it does not involve any consideration of admissibility or discretion, and for someone who meets the standards for presumption, there is no basis for denial of the application. For the same reason, there is no need for any alien who is eligible for presumption of lawful admission to obtain a waiver of inadmissibility . In short, it is more of a verification process than an adjudication process.

If the applicant is unable to establish the criteria necessary for presumption of lawful admission, you should examine the case to determine whether he or she has submitted sufficient evidence to establish eligibility for registry under section 249 of the Act (see Chapter 23.6 of this field manual ), and if so, convert the application to one for that benefit.

Note

If you discover that an alien who is otherwise eligible for presumption of lawful admission is also amenable to removal proceedings as a deportable or inadmissible alien, you must first create the record of admission so that the file reflects that he or she is a lawful permanent resident, and then refer the case to the ICE for consideration of removal proceedings.

(b) Presumption under 8 CFR 101.1 .

8 CFR 101.1 lists more than 30 different situations under which an alien is entitled to presumption of lawful admission. Some merely require that the applicant for presumption of lawful admission establish that he or she entered the U.S. before a certain date, others require that the applicant show that he or she is of a particular nationality, that the entry occurred at a particular location, that the entry occurred in a certain manner, etc. An alien may apply for Presumption of Lawful Admission under 8 CFR 101.1 by filing Form I-485, with supporting documentation and fee,

Although it is the applicant’s responsibility to establish (through documentation, or through unambiguous testimony or affidavits) his or her eligibility for whichever provision he or she claims to qualify under, as the adjudicating officer you should take into account the passage of time since the events in question and the difficulties inherent in documenting events which occurred up to a century ago.

Some of the provisions of 8 CFR 101.1 have been the subject of precedent decisions, including:

· 8 CFR 101.1(i) - Aliens admitted to Guam (prior to December 24, 1952, except contract laborers) . In Matter of C– Y– L– , 8 I. & N. Dec. 371 (BIA 1959) it was held that the bar which relates to contract laborers does not pertain to higher levels of employees. In Matter of L– , 9 I. & N. Dec. 82 (BIA 1960) and Matter of A– , 9 I. & N. Dec. 85 (BIA 1960) it was held that an admission prior to December 24, 1952, as a contract laborer cannot be “cured” by an admission subsequent to that date as a higher level of employee. In Matter of Antolin , 12 I. & N. Dec. 127 (BIA 1967) it was held that an alien’s failure to maintain continuous residence in Guam since 1952 nullified his eligibility (his 8 year residence in the Philippines (from 1957 to 1965) did not qualify under the temporary absences provision).

· 8 CFR 101.1(j) - Erroneous admission as United States citizens or as children of citizens . In Matter of M– Y– C– , 8 I. & N. Dec. 313 (BIA 1959) it was held that an alien who was not in fact the child of a U.S. citizen at the time of his or her admission could not qualify. In Matter of K– B– W– , 9 I. & N. Dec. 610 (BIA 1962) it was held that an alleged adoptive child of a U.S. citizen who is not within the definition contained in section101(b)(1)(E) of the Act (because he was not legally adopted under the law of either his or his father’s country of residence) does not qualify. In Matter of Cruz-Gastelum , 12 I. & N. Dec. 704 (BIA 1968) it was held that in the absence of a record of his claimed admission the alien did not qualify.

(c) Presumption under 8 CFR 101.2 .

This section of the regulations (entitled “Presumption of lawful admission; entry under erroneous name or other errors”) may be applied to entry as either an immigrant or a nonimmigrant, and is used merely to correct certain errors which may have occurred at the time of admission. It is not used to create a record which did not previously exist, nor is it used to make someone a permanent resident who was not already a permanent resident. The errors which can be corrected in this process are specified in the section, as are the limitations of the provision. If the alien seeking correction of an erroneous admission should have been admitted as a nonimmigrant, he or she applies on Form I-102 , if he or she should have been admitted as an immigrant, he or she files Form I-485 .

(d) Children of Diplomats .

Children born of diplomats accredited to the U.S. and having full diplomatic immunity (in other words, listed on the Department of State’s Diplomatic List or “Blue List”) are not subject to the laws of the U.S. As such, those children do not fall within the provisions of the 14 th Amendment and are not citizens or nationals of the U.S. They are, however, eligible for consideration as lawful permanent residents of the U.S. pursuant to 8 CFR 101.3 . Form I-485 is used to apply for status as a permanent resident under this provision.

Registration as a lawful permanent resident is governed by the provisions of 8 CFR 101.3 and 101.4 and is entirely voluntary on the part of the alien. The only issues to be considered in processing the application for permanent residence are:

· Whether the individual is voluntarily seeking such benefits (which is automatically established through his or her filing of the Form I-485);

· Whether he or she was born in the U.S., which is normally established through the submission of his or her birth certificate;

· Whether he or she maintained continuous residence (but not necessarily continuous physical presence) in the U.S. Generally, an absence for a duration or purpose which would not affect the LPR status of any other lawful permanent resident would not break the residence of an applicant for presumption of lawful admission under 8 CFR 101.3 and 101.4. Some additional general guidelines applicable to this particular type of case are:

– Temporary or even extended absences from the U.S. do not break continuous residence if the diplomatic parent remained accredited to the U.S. during the alien’s absence. For example, many children of diplomats attend school in their parents’ home country while the parents are on diplomatic assignment. An absence for this purpose, even if it extended for a year or longer, would not be considered to break the child’s residence in the U.S.

– Readmission to the U.S. as an A or G nonimmigrant at the end of an absence from the U.S. does not break continuous residence for this purpose.

– Departure of the applicant’s diplomatic parent does not break the applicant’s residence, provided the applicant remains in the U.S. when that parent departs.

· Whether either of his or her parents had full diplomatic immunity at the time of the applicant’s birth and was therefore not subject to the jurisdiction of the U.S. (Not all individuals who are admitted to the U.S. under the A or G nonimmigrant classification have full diplomatic immunity and are on the “Blue List”.) If either parent was on the listed on the Department of State’s “Blue List” when the applicant was born, the applicant was not subject to the jurisdiction of the U.S. It does not matter if the second (alien) parent is on the blue list, was a lesser governmental representative, was an LPR who had filed a waiver of diplomatic immunity on Form I-508, was in some other nonimmigrant classification, was an illegal alien, or was not even in the U.S. when the applicant was born. The only exception is if the other parent is a USC, in which case the child acquires dual nationality. In order to determine whether the parent in question was on the Blue List, complete Form I-566 and submit it to the Department of State, Office of Protocol.

· Whether the applicant for presumption of lawful admission has lost or waived his or her diplomatic immunity. Because a lawful permanent resident cannot be immune from the laws of this country, the applicant must complete and sign a Waiver of Rights, Privileges, Exemptions and Immunities ( Form I-508 , or Form I-508F if he or she is French). See the discussion on this topic in Chapter 23.2(k) of this field manual .

Note

It does not matter whether the applicant is still a child or is now an adult; it does not matter whether the applicant is inadmissible to the U.S., and it does not matter whether there are any negative discretionary factors involved (since 8 CFR 101.2 does not vest USCIS with any discretionary authority over such applications).

For a further discussion on the issue of presumption of lawful admission in the case of a person born in the U.S. to parents who are in diplomatic status, see Matter of Huang , 11 I. & N. Dec. 190 (BIA, 1965) .