§ 24.11 B. Special Agricultural Workers
A noncitizen who met the requirements of the SAW program could apply to become a lawful permanent resident.[134] To be eligible a noncitizen needed to be admissible to the United States, apply for adjustment within 18 months of November 6, 1986, and have resided in the United States and performed at least 90 man-days of work within certain periods of time.[135] If the requirements were met, the noncitizen was deemed a "Lawful Temporary Resident" upon application and the noncitizen would automatically become a lawful permanent resident upon a specified date.[136] The information contained in the SAW application was to be kept confidential, and could not be used for any purpose except to determine eligibility under the SAW program itself.[137]
A three misdemeanor/one felony bar was added for SAWs mid-program, through legislation effective December 18, 1989.[138] It permitted the government to rescind temporary resident status or deny permanent resident status to SAWs based on such convictions, and made the grounds of exclusion rather than the grounds of deportation the standard of eligibility for permanent residence. An aggravated felony, domestic violence, or firearms conviction does not necessarily bar legalization under this program unless it is a felony conviction under the law of the rendering jurisdiction, or otherwise triggers inadmissibility. A reduction from felony to misdemeanor can therefore avoid this bar. See § 11.13, supra. If the conviction is a misdemeanor, it can constitute one of the three misdemeanor convictions required to bar amnesty for SAWs.
A crime of moral turpitude, a drug offense, or any other criminal offense listed as a ground of inadmissibility[139] renders a noncitizen ineligible for legalization as an applicant must not be inadmissible.[140] Although a waiver of certain grounds of inadmissibility is built into the legalization portion of the Act, this waiver does not work for convictions of crimes of moral turpitude, or any drug offense, except a single offense of simple possession of 30 grams or less of marijuana.[141] There is no reason, however, why a noncitizen subject to the Petty Offense, Youthful Offender or Political Offense exceptions to the CMT inadmissibility ground[142] would be barred from legalization, unless the applicant was convicted of a felony or three misdemeanors.
In 2006, the Ninth Circuit, en banc, reversed an earlier decision that held that a noncitizen applicant for legalization under the SAW program was not considered to have adjusted status to that of a lawful permanent resident until the actual date of adjustment.[143] In reversing, the en banc court deferred to a prior BIA decision,[144] and found that a noncitizen who applied for SAW, and therefore become a Lawful Temporary Resident ("LTR"), is considered to have "adjusted status" on the LTR date. Therefore a criminal offense triggering a ground of inadmissibility that occurred between the LTR and LPR dates could not be used to find that the noncitizen was inadmissible at time of adjustment of status, under INA § 237(a)(1)(A).[145]
While Immigration Judges and the Board of Immigration Appeals lack jurisdiction to review decisions of the Legalization Appeals Unit ("LAU") denying applications for temporary resident status under the SAW program where the noncitizen claims that the LAU erred substantively in denying an application, at least one circuit has held that it has petition for review jurisdiction to consider these claims.[146]
[134] See INA § 210, 8 U.S.C. § 1160.
[135] INA § 210(a)(2), 8 U.S.C. § 1160(a)(2).
[136] Ibid. See, e.g., Francis v. Gonzalez, 442 F.3d 131 (2d Cir. Mar. 27, 2006) (Special Agricultural Worker's Program automatically adjusted applicants without regard to admissibility at the time of adjustment); Matter of Jimenez-Lopez, 20 I. & N. Dec. 738, 742 (BIA 1993).
[137] INA § 210(b)(6), 8 U.S.C. § 1160(a)(6).
[138] The requirement was included in provisions attached to the Immigration Nursing Relief Act of 1989, P.L. No. 101-238, 103 Stat. 2099, § 4. See discussion in 67 Interpreter Releases 5 (Jan. 1, 1990).
[140] INA § 210(a)(1)(C), 8 U.S.C. § 1160(a)(1)(C). But see INA § 210(c)(2)(A), 8 U.S.C. § 1160(c)(2)(A).
[141] INA § 210(c)(2)(B)(ii)(I), 8 U.S.C. § 1160(c)(2)(B)(ii)(I).
[143] Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. Sept. 15, 2006) (en banc), reversing 411 F.3d 1079 (9th Cir. June 14, 2005).
[144] Matter of Jimenez-Lopez, 20 I. & N. Dec. 738, 742 (BIA 1993).
[145] INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A).
[146] Perez-Martin v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005).
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