(1) In removal proceedings arising within the jurisdictions of the United States Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits, an aggravated felony conviction disqualifies an alien from relief under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry. Bracamontes v. Holder, Nos. 10-2033, 10-2280, 2012 WL 1037479 (4th Cir. Mar. 29, 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), followed in jurisdiction only.
(2) In removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section 212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), reaffirmed.
This decision addresses the LPR bars to the inadmissibility waiver at INA 212(h). The BIA states that except where it is not permitted to by the Circuit Court of Appeal with jurisdiction over the case, it will hold that all LPRs, regardless of how they acquired their LPR status, are subject to the LPR bars to 212(h). If subject to these bars, an LPR may not apply for 212(h) if she (a) has not accrued seven years lawful residence in the U.S. before issuance of an NTA and/or (b) was convicted of an aggravated felony since becoming an LPR.
In contrast to the BIA’s interpretation, all the Circuit Courts of Appeal that have considered the issue have found that persons who became LPRs through adjustment of status are not subject to the 212(h) bar. The courts found that due to the unique language in 212(h), the 212(h) bars only apply to LPRs who were admitted as LPRs at the border, having gone through consular processing.
In Matter of Rodriguez the BIA states that in cases arising in the Fourth, Fifth and Eleventh Circuits, it will not apply its rule but will follow the courts’ interpretation. The BIA ought to recognize that the Ninth Circuit also has joined with these courts to find the bar only applies to LPRs who were admitted as LPRs at the border, but it ignores the Ninth Circuit case.
For further discussion of the issue, see the federal cases cited below and see Brady, “Update on 212(h)” at www.ilrc.org/crimes and at Bender’s Immigration Bulletin.
By its terms, INA 212(h) is not available to certain permanent residents. Certain permanent residents are barred from 212(h) if they lack seven years of lawful residence before the NTA is filed, or have been convicted of an aggravated felony since becoming an LPR.
The question is, to which LPRs do these bars apply? Section 212(h) provides that the bars apply to a noncitizen who has “previously been admitted to the United States as an alien lawfully admitted for permanent residence.”
Because the statutory language contains this double reference to “admission,” federal courts that have considered the issue have decided that the bar applies only to LPRs who were admitted at the border as permanent residents, i.e. after consular processing, and that adjustment of status to LPR does not trigger the bar. The Fourth, Fifth, and Eleventh, as well as the Ninth, Circuits have interpreted the language this way. Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (adjustment after admission does not trigger bar), Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011) (adjustment after EWI does not trigger bar), Bracamontes v. Holder, –F.3d– (4th Cir.Mar. 29, 2012) (adjustment after admission does not trigger bar); and see Sum v Holder, 602 F.3d 1092 (9th Cir. 2010) (only admission at the border as an LPR triggers212(h) bar; but the fact that the person was inadmissible at the time of being admitted at the border as an LPR does not prevent the 212(h) bar from applying).
The BIA disagrees with this interpretation. In today’s case, Matter of Rodriguez, it states that unless an immigration case arises within the Fourth, Fifth and Eleventh Circuits, the Board will apply the LPR bars to 212(h) relief to any LPR, regardless of whether the person became an LPR through adjustment or consular processing.
Oddly the BIA did not mention the Ninth Circuit decision of Sum v Holder, 602 F.3d 1092 (9th Cir. 2010). There the Ninth Circuit reaffirmed the Fifth Circuit’s statutory interpretation in Martinez, supra, and found that as a matter of statutory construction, the 212(h) bar applies only to those who were admitted at the border as LPRs after consular processing. The Ninth Circuit then went on to hold that the 212(h) bar applies to an LPR who went through consular processing even if the person had committed fraud and was actually inadmissible at the time he immigrated. The Ninth Circuit based its holding on the fraudulent admission upon its interpretation of the 212(h) language that was consistent with the Fifth Circuit, and that stated that the 212(h) bar does not apply to an LPR who adjusted status.
In Matter of Rodriguez, however, the BIA does not mention Sum, and acts as if the Ninth Circuit has not addressed the 212(h) bar issue at all. In Matter of Rodriguez the BIA reaffirms holding of its flawed decision in Matter of Koljenovic. It is important to note that Matter of Koljenovic and the instant case, Matter of Rodriguez, both dealt with someone who entered without inspection before adjusting status. Matter of Koljenovic restricted itself to this scenario, and based its decision on the issues presented by the fact that the person was EWI.
As the Eleventh Circuit held in Lanier, supra, Matter of Koljenovic itself was wrongly decided. Even an LPR who adjusted status after entering without inspection is not subject to the LPR bars to 212(h). For further critique of Matter of Koljenovic see Brady, Update on 212(h), supra.
Now Matter of Rodriguez, although the issue was not presented in the case, appears to take Koljenovic a step farther and find that the LPR bars apply to all LPRs, period, including those who adjusted status after admission.
As the BIA concedes, the Fourth, Fifth and Eleventh Circuits made their rulings based on the clear language of the statute. The BIA is not allowed to claim deference to its contrary reading, under Chevron and Brand X. The BIA ought to treat the Ninth Circuit’s decision in Sum the same way. However, the BIA opinion does not mention Sum. Ninth Circuit practitioners should assert Sum as well as the other opinions, but ICE probably will fight it.