The BIA held that conditional permanent residents are barred from obtaining a waiver of inadmissibility under INA § 212(h). Matter of Paek, 26 I&N Dec. 403 (BIA September 17, 2014). Board Member Guendelsberger wrote the panel’s decision.
The migrant in this case obtained conditional LPR status in 1991 through a marriage. After three convictions, he was placed in removal proceedings and found removable for having been convicted of two crimes involving moral turpitude and an aggravated felony. To avoid removal, he sought to readjust his status while simultaneously requesting a § 212(h) waiver. The § 212(h) waiver applies to a small number of removable basis including the CIMT and multiple convictions grounds. The problem for Paek was that is unavailable to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if…since the date of such admission the alien has been convicted of an aggravated felony.”
Until now, the BIA hadn’t addressed whether someone admitted as a conditional LPR under INA § 216(a) was properly described as having been “admitted for permanent residence” for purposes of § 212(h) eligibility. The Board had no trouble decided that Paek fits this description, thus he is ineligible for a § 212(h) waiver. According to the Board, “[t]he plain language of section 216 of the Act establishes that an alien admitted as a conditional permanent resident is ‘lawfully admitted for permanent residence’ as defined in section 101(a)(20) of the Act…and incorporated into section 212(h) of the Act.” Id. at 406.
I wasn’t particularly surprised by the Board’s conclusion. What did surprise me was how easily it got there. There is a fairly rigorous debate happening within the federal circuits about whether the § 212(h) bar for LPRs with aggravated felony convictions applies to people who came to the United States in some status other than LPR status. The Board acknowledged this debate in a single paragraph plus a footnote. Neither grapples with this debate’s possible relevance.
There is no question that conditional LPR status is not equivalent to LPR status. Ordinary LPR status grants a migrant the right to live and work in the United States indefinitely. The migrant doesn’t have to meet any other requirements ever. Conditional LPR status is just that—conditional. People who have this status must abide by statutorily imposed requirements roughly two years after receiving the conditional LPR status. They have to prove the legitimacy of their marriage. If they are no longer married to the person who petitioned for them to come to the United States, they must provide an explanation for why the marriage dissolved.
Isn’t it possible that Congress might have wanted to hold ordinary LPRs to a higher standard, as some circuits have concluded when addressing the difference between people admitted to the United States as LPRs versus those who entered without inspection or who were admitted in a non-LPR status and later became LPRs. This strikes me as plausible—at least as plausible as the position that several circuits have taken regarding § 212(h).
The Board doesn’t engage this line of cases so we’ll have to wait to find out.
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