The U.S. Court of Appeals for the Fifth Circuit recently held that a lawful permanent resident (LPR) inside the United States might be eligible for a waiver of inadmissibility only by applying for adjustment of status. Cabral v. Holder, 632 F.3d 886, No. 09-60386, slip op. (5th Cir. Feb. 2, 2011) (Jones, Dennis, and Clement, J.). Judge Clement wrote the panel’s decision.
This case involves an LPR who was convicted of two crimes involving moral turpitude (CIMTs) and found ineligible for a waiver of inadmissibility under INA § 212(h). Under § 212(h), an immigration judge (IJ) acting on behalf of the Attorney General may admit into the United States an individual who has been convicted of multiple CIMTs, among other crimes. Though the text of § 212(h) refers only to individuals who are deemed inadmissible, “‘in practice the waiver is also available to deportable aliens.’” Cabral, No. 09-60386, slip op. at 5-6 (quoting Flores-Ledezma v. Gonzales, 415 F.3d 375, 379 n.5 (5th Cir. 2005)).
For a deportable individual to be eligible for a § 212(h) waiver, the court held, the individual must apply for adjustment of status. Cabral, No. 09-60386, slip op. at 6. By applying for adjustment (often called “readjustment” because many LPRs adjusted their status previously) “‘the applicant is assimilated to the position of an alien outside the United States seeking entry as an immigrant.’” Cabral, No. 09-60386, slip op. at 6 (quoting Jankowski-Burczyk v. INS, 291 F.3d 172, 175 n.2 (2d Cir. 2002)).
This case thus requires that LPRs seeking a § 212(h) waiver apply for adjustment of status. In the court’s words: “The adjustment of status application ‘shall be the sole method of requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an alien in the United States.’” Cabral, No. 09-60386, slip op. at 6 (quoting 8 C.F.R. § 1245.1(f)).
Accordingly, the court found that because Cabral was an LPR physically present in the United States who had not filed an adjustment application he was ineligible for a § 212(h) waiver. Cabral, No. 09-60386, slip op. at 6.