Villalobos was granted temporary residence under the legalization provisions found in section 245A of the Immigration and Nationality Act (INA).  Before adjusting his status to permanent residence, he was convicted of several cocaine-related offenses.  Nonetheless, his application for permanent residence was approved.  Later, when he sought to renew his residency card, his criminal history came to light, and he was placed in removal proceedings, where he sought a waiver under section 212(c) of the INA.  An Immigration Judge found him removable as a person inadmissible at the time of adjustment, and further concluded he was not eligible for a waiver because he had never been lawfully admitted to permanent residence.

On appeal, the Board of Immigration Appeals (Board) acknowledged that the Department of Homeland Security has exclusive jurisdiction over legalization applications, but found that the Immigration Judge and the Board retained jurisdiction to determine if the grant of permanent residency was lawful, and thus, whether the non-citizen is removable.  The Board further determined that the legality of Villalobos' adjustment to permanent residency could be examined, because this adjustment was a separate grant of status from the approval of his temporary residency, and required a second evaluation of his admissibility to the United States.  Finally, because Villalobos' drug-related offenses rendered him inadmissible, he was never lawfully admitted to permanent residence, and was not eligible for a waiver under section 212(c) of the INA.

In a footnote, the Board noted that Villalobos' criminal history came to light outside of the context of his legalization application, which is protected by strict confidentiality provisions.  Presumably, his criminal history was revealed when he was fingerprinted for the renewal of his resident card.  This is a reminder to practitioners that information in the legalization application, which cannot be used by an Immigration Judge to undermine a previous grant of permanent residency to a legalization, may still be discovered through other, non-protected channels.

The full text of Matter of Villalobos can be found here: