Matter of Briones and INA §245(i)
Matter of Briones, 24 I&N Dec. 355 (BIA 2007), is a leading precedent defining the limits of INA §245(i). The Board held that §245(i) does not make adjustment available to an applicant who is inadmissible under INA §212(a)(9)(C)(i)(I), the permanent-bar provision covering certain persons who accumulated more than one year of unlawful presence and then entered or attempted to enter the United States without being admitted. Briones is therefore a critical reminder that §245(i) can overcome important adjustment barriers but is not a general waiver of inadmissibility.
What did Matter of Briones hold?
Always perform a separate INA §212 inadmissibility analysis after determining that an applicant is grandfathered.
See INA §245(i).
The permanent-bar provision at issue
INA §212(a)(9)(C)(i)(I) generally makes inadmissible a person who:
- Was unlawfully present in the United States for an aggregate period of more than one year;
- Departed the United States; and
- Entered or attempted to reenter without being admitted.
The ground is aimed at recidivist immigration violations. The unlawful presence must precede the later unlawful entry or attempted reentry that activates the statutory provision.
Briones clarified the required sequence
The Board explained that §212(a)(9)(C)(i)(I) covers a person who:
- Accumulates more than one year of unlawful presence;
- Leaves the United States; and
- Thereafter enters or attempts to enter without being admitted.
This sequence is important because:
- Unlawful presence accrued only after the last unlawful entry does not by itself satisfy the same sequence;
- Earlier periods must be reconstructed carefully;
- Departure dates matter;
- Entry method matters; and
- Aggregate unlawful presence before the triggering reentry must be calculated.
What INA §245(i) does
A qualifying grandfathered applicant can potentially use §245(i) notwithstanding ordinary barriers such as:
- Entry without inspection;
- Lack of current lawful status;
- Failure to maintain status;
- Unauthorized employment; and
- Other statutory barriers covered by §245(i).
The applicant must still establish:
- Grandfathering;
- A current immigrant basis;
- Visa availability;
- Admissibility;
- Required Supplement A;
- Required statutory payment where applicable; and
- Favorable discretion.
A qualifying pre-April 30, 2001 filing can grandfather the applicant, but the applicant may adjust through a different present-day immigrant petition if all §245(i) rules are satisfied.
What INA §245(i) does not do
Section 245(i) does not automatically waive:
- INA §212(a)(9)(C);
- Fraud or willful misrepresentation;
- False claim to U.S. citizenship;
- Criminal inadmissibility;
- Controlled-substance inadmissibility;
- Drug trafficking;
- Security and terrorism grounds;
- Prior-removal inadmissibility;
- Alien smuggling;
- Public charge where applicable; or
- Other independent INA §212 grounds.
The §245(i) inquiry and the INA §212 inquiry must be completed separately.
Why Briones rejected the broader interpretation
The Board examined the text and structure of the INA and concluded that Congress knows how to expressly create exceptions to inadmissibility when it intends to do so.
It reasoned that:
- §245(i) expressly allows adjustment notwithstanding subsections (a) and (c) of INA §245;
- The statute does not say adjustment is available notwithstanding INA §212(a)(9)(C);
- Congress created explicit inadmissibility waivers in other adjustment programs; and
- The Board could not infer a waiver Congress did not enact.
When Congress says a statute applies “notwithstanding” specified provisions, that language does not automatically extend to unrelated statutory bars Congress did not identify.
Briones and Matter of Lemus
Related BIA precedent applied the same distinction to unlawful-presence inadmissibility under INA §212(a)(9)(B).
Matter of Lemus held that §245(i) does not itself overcome INA §212(a)(9)(B)(i)(II).
Briones and Lemus together establish an important principle:
When the applicant leaves the United States after unlawful presence or returns unlawfully, separate §212(a)(9) analysis becomes essential.
Briones and advance parole after DELCARMEN-LARA
The interaction between §245(i), unlawful presence and departure became even more important after Matter of DELCARMEN-LARA, 29 I&N Dec. 830 (BIA 2026).
For prospective advance-parole travel:
- The trip can constitute a departure under INA §212(a)(9)(B)(i)(II);
- §245(i) does not itself waive the resulting unlawful-presence bar;
- The applicant may require a separate §212(a)(9)(B)(v) waiver;
- A prior unlawful reentry can require §212(a)(9)(C) analysis; and
- §245(i) cannot be assumed to overcome §212(a)(9)(C) after Briones.
The ten-year-outside-the-United-States consent provision
INA §212(a)(9)(C)(ii) contains a narrow statutory exception for certain applicants seeking permission to reapply after the required period.
In general, the statute requires:
- More than ten years to have elapsed since the date of the person's last departure from the United States; and
- Advance consent from DHS to reapply for admission.
The statutory framework does not ordinarily permit a person subject to §212(a)(9)(C) to remain inside the United States for ten years and then obtain consent as though the statutory waiting requirement had been completed abroad.
Do not confuse §212(a)(9)(B) with §212(a)(9)(C)
| Ground | Typical Trigger | General Relief Structure |
|---|---|---|
| §212(a)(9)(B) | Departure after specified unlawful presence followed by seeking admission within 3 or 10 years. | Potential waiver under §212(a)(9)(B)(v) for qualifying applicants. |
| §212(a)(9)(C) | Specified unlawful presence or prior removal followed by unlawful entry or attempted unlawful reentry. | Narrow statutory consent mechanism after the required period outside the United States, plus limited category-specific exceptions. |
A person eligible for a §212(a)(9)(B) waiver may still have no comparable immediate waiver if §212(a)(9)(C) applies.
Multiple entries require a complete chronology
A Briones analysis should reconstruct every relevant period.
For each entry and departure identify:
- Date of entry;
- Method of entry;
- Whether admitted, paroled or EWI;
- Age during the period;
- Lawful status;
- Periods of unlawful presence;
- Departure date;
- Removal order if any;
- Return date;
- Method of return; and
- Whether permission to reapply had been granted.
Do not diagnose a permanent bar from the phrase “entered illegally twice.” The statute requires a specific sequence of events.
Unlawful presence before April 1, 1997
Unlawful-presence calculations must account for the effective date of the IIRIRA unlawful-presence provisions.
Therefore, old immigration histories require analysis of:
- Dates before and after April 1, 1997;
- Age under 18;
- Pending asylum or other statutory exceptions where applicable;
- Periods of authorized stay;
- Prior removal proceedings;
- Voluntary departure; and
- Other statutory tolling or exclusion rules.
An old period of physical presence is not automatically countable unlawful presence.
Grandfathering must still be proven
Even if §212(a)(9)(C) does not apply, the applicant still must establish §245(i) grandfathering.
Evidence may include:
- Old Form I-130 receipt;
- Old Form I-140 receipt;
- Old labor certification;
- Approval notice;
- USCIS or DOL records;
- Evidence the filing was properly filed;
- Evidence it was approvable when filed;
- Qualifying relationship evidence;
- December 21, 2000 physical-presence evidence where required; and
- Derivative grandfathering evidence.
Current petition need not be the grandfathering petition
A grandfathered applicant can potentially adjust through a later immigrant petition.
The old qualifying filing establishes §245(i) grandfathering. A different current family or employment petition can provide the immigrant visa basis for adjustment if all current requirements are met.
That principle does not eliminate Briones: the applicant must still remain admissible or qualify for a separate waiver.
Example: §245(i) applicant with one EWI
An applicant is properly grandfathered under §245(i), entered without inspection once, remained in the United States and never departed or unlawfully reentered. The EWI can be a problem that §245(i) is designed to overcome. Briones does not create §212(a)(9)(C) merely from that single entry because the required unlawful-presence-then-departure-then-unlawful-reentry sequence is absent.
Example: unlawful presence followed by EWI
An applicant accumulated more than one year of unlawful presence, departed, and later entered the United States without being admitted. Even if the applicant is grandfathered under §245(i), Briones requires analysis of INA §212(a)(9)(C)(i)(I), which §245(i) does not itself waive.
Briones case-analysis checklist
- Confirm §245(i) grandfathering.
- Identify original qualifying filing.
- Confirm approvable-when-filed requirement.
- Confirm December 21, 2000 physical presence if applicable.
- Build complete entry and departure timeline.
- Calculate unlawful presence before each departure.
- Identify each EWI or attempted EWI.
- Identify prior removals.
- Analyze §212(a)(9)(A).
- Analyze §212(a)(9)(B).
- Analyze §212(a)(9)(C).
- Determine whether Briones applies.
- Review statutory exceptions.
- Review Form I-212 eligibility where relevant.
- Confirm current immigrant petition.
- Confirm visa availability.
- Analyze every other inadmissibility ground separately.
Common Briones mistakes
Assuming §245(i) Waives Everything
Grandfathering is treated as a blanket cure for all immigration violations and inadmissibility.
Diagnosing §212(a)(9)(C) Without a Timeline
The statutory sequence of unlawful presence, departure and unlawful reentry is never established.
Confusing §212(a)(9)(B) and (C)
The applicant assumes both grounds have the same waiver structure.
Counting All Pre-1997 Presence
Years physically present before the unlawful-presence statute's effective date are automatically treated as countable unlawful presence.
Ignoring Later Travel
The §245(i) analysis focuses on the old grandfathering petition but overlooks a later departure and unlawful return.
Using the Old Petition as the Only Immigrant Basis
The applicant overlooks that grandfathering and the present immigrant visa basis can be different petitions.
Primary authorities
Related INA245.com guides
Frequently asked questions
What did Matter of Briones hold?
It held that INA §245(i) does not permit adjustment for an applicant who is inadmissible under INA §212(a)(9)(C)(i)(I).
Does §245(i) forgive entry without inspection?
It can permit qualifying grandfathered applicants to adjust notwithstanding the ordinary admission requirement and specified adjustment bars, but all other requirements still apply.
Does §245(i) waive the permanent bar?
No. That is the central holding of Briones.
What sequence triggers §212(a)(9)(C)(i)(I)?
The person generally must accumulate more than one year of unlawful presence, depart, and thereafter enter or attempt to enter without being admitted.
Can someone be grandfathered but still unable to adjust?
Yes. Grandfathering does not eliminate separate inadmissibility grounds, visa-availability requirements or other eligibility requirements.
Can a different modern petition be used for adjustment?
Potentially yes. A qualifying old filing can establish grandfathering while a later family or employment petition supplies the current immigrant basis.
Briones defines the boundary of §245(i): grandfathering can overcome major adjustment barriers, but it does not rewrite the separate grounds of inadmissibility in INA §212.
The Messersmith Law Firm, P.A. represents adjustment applicants in INA §245(i) cases involving entry without inspection, old petitions, labor certifications, unlawful presence, INA §212(a)(9)(B) and (C), prior removal and complex waiver strategy.
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