By Guest Blogger Toni Maschler
This week, the U.S. Court of Appeals for the Fourth Circuit reversed a decision “pretermitting” (denying due to ineligibility) the application for relief from inadmissibility under INA § 212(h) due to an aggravated felony conviction. Mendoza Leiba v. Holder, slip op. No. 11-1845 (4th Cir. Nov. 9, 2012). Mr. Mendoza’s petition for review was granted, reversing the earlier decisions of the Immigration Court and Board of Immigration Appeals.
Mr. Mendoza, a Salvadoran married to a U.S. citizen and the father of five U.S. citizen children, had been placed in removal proceedings after a conviction for receiving stolen property. At the time of the decision, Mr. Mendoza was a lawful permanent resident, having “adjusted status” (obtained his green card) while in the United States.
Non-citizens who have violated immigration laws and/or committed a crime are usually “inadmissible” due to their violation of civil or criminal law, which means that they are ineligible to obtain or re-obtain permanent residence. Conviction of a crime also usually makes an individual deportable, if he or she is already in the United States, even if the person is a lawful permanent resident (green card holder). However, in certain cases, a deportable and/or inadmissible individual may apply for Lawful Permanent Residence as well as a discretionary waiver of the inadmissibility caused by the criminal conviction. A waiver may be available pursuant to § 212(h) of the Immigration and Nationality Act in certain cases in which the non-citizen can demonstrate that failure to grant an exception would cause “extreme hardship” to one or more qualifying U.S. citizen or lawful permanent resident relatives. Qualifying relatives for § 212(h) waivers are limited to the applicant’s parent, spouse, and/or child.
Before 1996, § 212(h) waivers required 1) a showing that the applicant’s U.S. citizen or Lawful Permanent Resident parent(s), spouse, and/or child(ren) would suffer “extreme hardship” and 2) that the individual merited the favorable exercise of discretion. Each case was considered individually, evaluating the degree of hardship which would be suffered by qualifying relatives, and weighing the positive and negative factors relevant to exercising discretion. The only absolute bar to such relief was for those who had been convicted of murder or acts involving torture, or conspiracy related to murder or torture. However, the law changed in 1996, extending the bar to anyone convicted of an “aggravated felony” a much larger class of crimes than murder and torture, including, in many cases, crimes designated as misdemeanors according to state criminal codes.
One of the many categories of crimes which constitute “aggravated felonies” is a “theft offense” for which the term of imprisonment imposed is one year or more—even if the offense is classified as a misdemeanor by the state, and even if the entire sentence is suspended. Thus, individuals convicted of shoplifting, “bouncing” a check, and other relatively minor crimes have been found ineligible for waivers, depending upon the wording of the statute and the sentence imposed. Here, it was uncontested that Mr. Mendoza’s conviction for “receipt of stolen property” and 36-month suspended sentence meant that he had been convicted of an aggravated felony.
The 1996 law stated:
No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.
Pub. L. No. 104-208, Div. C, § 348, 110 Stat. 3009, codified at 8 U.S.C. § 1182(h).
Despite conceding that he had been convicted of an aggravated felony, Mr. Mendoza argued that, because he had become a lawful permanent resident while in the United States, and had not been “previously been admitted to the United States as an alien lawfully admitted for permanent residence” his conviction did not bar him categorically from potentially obtaining a waiver.
The Court of Appeals for the 4th Circuit, which governs Washington, D.C. and surrounding states, agreed with Mr. Mendoza that the aggravated felony bar applied only to those who had physically entered the U.S. while in Lawful Permanent Resident status. The Court referred to its earlier decision Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012), and also noted that the Third and Seventh Circuits had already considered this very issue. The Court agreed with Mr. Mendoza that, consistent with the cited decisions, Congress had been clear in limiting the scope of those precluded from consideration for § 212(h) relief due to aggravated felony convictions.
The court held that Mr. Mendoza’s waiver application had been improperly pretermitted, because he might qualify for a waiver of inadmissibility if he could demonstrate that the failure to grant such waiver would cause “extreme hardship” to one or more qualifying relatives, and that he deserved the Court’s favorable exercise of discretion.