The U.S. Court of Appeals for the Second Circuit held that anyone who did not enter the country as a lawful permanent resident is eligible for a waiver of inadmissibility under INA § 212(h). Husic v. Holder, No. 14-607, slip op. (2d Cir. Jan. 8, 2015) (Katzmann, Winter, and Marrero). Chief Judge Katzmann wrote the panel’s decision.
This case involves a 65-year-old migrant who entered the United States in 1994 on a B-2 nonimmigrant visa. About four years later he became an LPR by adjusting his status. In 2012, he pleaded guilty to attempted criminal possession of a weapon in the second degree, N.Y. Penal Law § 265.03. Id. at 4. It appears that he conceded that he was convicted of a crime involving moral turpitude. Importantly, he argued that his offense did not constitute an aggravated felony, but the IJ disagreed. Id. at 5.
On appeal to the Second Circuit, he turned his focus to a related topic: if he was convicted of an aggravated felony, he can apply for readjustment of status and pair that application with a waiver of inadmissibility under INA § 212(h). This is the issue that takes center stage for the Second Circuit.
To explain the significance of § 212(h) and the Second Circuit’s analysis, let me quote at length from my forthcoming book Crimmigration Law (ABA 2015).
Another means of obtaining relief from removal is the waiver of inadmissibility provided by INA § 212(h). This waiver applies only to specified grounds of inadmissibility: a crime involving moral turpitude, two or more convictions, prostitution, certain serious criminal offenses, and a controlled substance offense. It cannot be used to waive any basis for deportation.
The second key nuance about § 212(h) to consider is the statute’s unfavorable view of people convicted of an aggravated felony. The statute provides that a migrant “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” is ineligible for a waiver if “since the date of such admission the alien has been convicted of an aggravated felony.” Does this mean that all LPRs convicted of an aggravated felony are ineligible? The BIA certainly takes that position. It claims that an LPR with an aggravated felony conviction is ineligible if she entered the United States as an LPR or became an LPR while in the United States through adjustment of status (discussed below). One circuit agrees. Every other circuit to decide the issue, however, takes a contrasting position, holding that migrants who entered the United States as LPRs are subject to § 212(h)’s aggravated felony bar, but those who became LPRs while in the United States through the adjustment of status process are not because they were not “admitted” into the United States as LPRs. Illustrating this reasoning, the Fifth Circuit explained, “for the § 212(h) bar to apply: when the alien is granted permission, after inspection, to enter the United States, he must then be admitted as an LPR.” But, the court added, “for aliens who adjust post-entry to LPR status, § 212(h)’s plain language demonstrates unambiguously Congress’ intent not to bar them from seeking a waiver of inadmissibility.” In this vein, the Sixth Circuit explained that had Congress wanted to bar everyone who becomes an LPR from obtaining a 212(h) waiver, that “result could quite easily have been obtained by saying something much simpler, such as: No waiver shall be granted under this subsection in the case of a lawful permanent resident if…since the date of obtaining such status the alien has been convicted of an aggravated felony.” Congress, of course, did not include such a statement. (A separate and little used exception applies for applicants who have continuously resided as an LPR for at least seven years prior to the initiation of removal proceedings.)
The Second Circuit adopted very similar reasoning. In doing so, the Second Circuit continued to leave the Eighth Circuit as an outlier. Perhaps this trend will encourage the Eighth Circuit to revisit its earlier position.
 See Matter of Rodriguez, 25 I&N Dec. 784, 789 (BIA BIA 2012); see also Matter of Koljenovic, 25 I&N Dec. 219, 225 (BIA 2010) (adopting similar conclusion regarding seven-year continuous residence requirement); Matter of Paek, 26 I&N Dec. 403, 407 (BIA 2014) (same regarding admission as a “conditional permanent resident” under INA § 216(a)).
 See Roberts v. Holder, 745 F.3d 928, 932 (8th Cir. 2014).
 See Stanovsek v. Holder, 768 F.3d 515, 517-18 (6th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1054 (9th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790, 794 (7th Cir. 2013); Leiba v. Holder, 699 F.3d 346, 356 (4th Cir. 2012); Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366-67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); see also Hanif v. Attorney General of the U.S., 694 F.3d 479, 484 (3d Cir. 2012) (reaching identical holding regarding seven-year continuous residence requirement).
 Martinez v. Mukasey, 519 F.3d 532, 544, 546 (5th Cir. 2008).
 Stanovsek v. Holder, 768 F.3d 515, 517 (6th Cir. 2014).
 INA § 212(h).
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