BIA: 212(h) waiver can’t overcome crime-based cancellation bar for non-LPRs

Last month the BIA held that a waiver under INA § 212(h) cannot overcome ineligibility for cancellation of removal as a result of having been convicted of an offense under INA § 212(a)(2). Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011) (Pauley, Wendtland, and Greer, Board Members). Board Member Wendtland wrote the panel’s decision.

This case involved an individual who entered without inspection and was convicted of possession of not more than 20 grams of marijuana, Fla. § 893.13(6)(b). Bustamante conceded removability because he was neither admitted nor paroled, then sought cancellation of removal for non-LPRs under INA § 240A(b). Matter of Bustamante, 25 I&N Dec. at 564-65.

The government argued that he was ineligible for cancellation because his marijuana possession conviction constituted an inadmissible offense under INA § 212(a)(2)(A)(i)(II) (controlled substances offenses). As a result, the government added, he was ineligible for cancellation because § 240A(b)(1)(C) requires an applicant to show that he “has not been convicted of an offense under 212(a)(2)” or other statutory sections not applicable here. The IJ agreed with the government’s position. Matter of Bustamante, 25 I&N Dec. at 564-65.

On appeal to the BIA, the Board addresses “whether section 212(h) can waive the effect of a conviction for an offense under section 212(a)(2)(A)(i)(II)…to overcome the bar to cancellation of removal under section 240A(b)(1)(C).” Matter of Bustamante, 25 I&N Dec. at 565.

The BIA does not appear to have had much difficulty deciding that a § 212(h) waiver cannot overcome the crime-based basis of ineligibility for cancellation for non-LPRs. The Board’s conclusion turns on what it views as the subject of § 212(h)’s waiver power. To the Board, § 212(h) waives the ground of inadmissibility found in § 212(a)(2); it does not waive commission of the offense or a conviction.

To put it another way, § 212(h) does not erase the fact of conviction; it merely waives the effect that such a conviction has on an applicant for admission (inadmissibility). As the Board explained, “we have stated that ‘w[e] interpret section 212(h), which waives the application of…[section 212(a)(2)(A)(i)(II)], to mean that it is the ground of inadmissibility—rather than the offense or the conviction—whose  application may be waived.’” Matter of Bustamante, 25 I&N Dec. at 567.

The cancellation statutory provision, in contrast, is concerned only with the fact of conviction. “Therefore, a waiver of inadmissibility is not pertinent to the criteria for eligibility set forth in section 240A(b)(1)(C).” Matter of Bustamante, 25 I&N Dec. at 569.

For cancellation purposes, all that matters is whether the cancellation applicant was convicted of an offense that falls within INA § 212(a)(2). In the BIA’s words, “where an alien who is inadmissible by reason of a conviction is granted a waiver, the conviction is not nullified. Only the application of the ground of inadmissibility resulting from the conviction is waived, not any other immigration-related consequence.” Matter of Bustamante, 25 I&N Dec. at 569-70. Bustamante, therefore, was properly found ineligible for cancellation, the Board concluded. Matter of Bustamante, 25 I&N Dec. at 570.

See Jacqueline Scott Brown’s blog about this decision too.