No one can accuse the Board of Immigration Appeals of giving up easily. Only after nine federal circuits disagreed did the BIA finally reconsider its position on which lawful permanent residents are eligible to seek a waiver of inadmissibility under INA § 212(h). Matter of J-H-J-, 26 I&N Dec. 563 (BIA May 12, 2015).
This case involved a migrant who became an LPR through adjustment of status. After being convicted of an assault offense that he conceded was an aggravated felony, he sought to readjust his status. To overcome the inadmissibility bar that resulted from his conviction, the migrant sought a waiver under § 212(h).
This is where things got complicated because of a deep conflict that existed between the BIA and most federal circuits. As I describe in my book Crimmigration Law (available for purchase in mid-August 2015):
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. 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.
César Cuauhtémoc García Hernández, Crimmigration Law 79-80 (forthcoming 2015) (citations omitted).
In May, the BIA shifted course. “Given the overwhelming circuit court authority in disagreement with [the BIA and Eighth Circuit’s position]…we will now accede to the clear majority view of these nine circuits….and hold that section 212(h) of the Act only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction.” Matter of J-H-J-, 26 I&N Dec. at 564, 565.
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