Lawful Admission of a Refugee as a Permanent Resident and the Aggravated Felony Bar Under 212(h)(2) of the Immigration and Nationality Act
On September 17, 2021, the Board of Immigration Appeals (“BIA”) published a decision in which it determined that:
A person who enters the United States as a refugee and later adjusts in the United States to lawful permanent resident status is not precluded from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or she has not “previously been admitted to the United States as an alien lawfully admitted for permanent residence” under that provision.
See Matter of N-V-G-, 28 I&N Dec. 380, (BIA 2021) Interim Decision #4027.
The procedural history, facts of record, holding and rationale in Matter of N-V-G- are as follows:
Case History
On September 13, 2018, an Immigration Judge granted the respondent’s request for a waiver of his inadmissibility under section 212(h) of the Immigration and Nationality Act, as amended (“the Act”).
The Department of Homeland Security (“DHS”) appealed from this decision.
Facts
The respondent is a native and citizen of Laos who entered the United States as a refugee in 1989 under section 207 of the Act.
In 1990, he adjusted his status to that of a lawful permanent resident pursuant to section 209(a) of the Act.
In 2001, he was convicted of second degree assault with a dangerous weapon in violation of section 609.222(1) of the Minnesota Statutes Annotated, and sentenced to 21 months of incarceration.
Based on this conviction, the DHS placed the respondent in removal proceedings, charging him with removability under section 237(a)(2)(E)(i) of the Act, as an “alien . . . convicted of a crime of domestic violence.”
The respondent admitted the allegations and conceded that he was removable as charged.
The Immigration Judge determined that the respondent had been convicted for an aggravated felony “crime of violence” for which the term of imprisonment was at least 1 year under section 101(a)(43)(F) of the Act.
The Immigration Judge acknowledged that section 212(h)(2) of the Act bars a respondent who has been convicted of an aggravated felony after “previously [being] admitted to the United States as an alien lawfully admitted for permanent residence.”
However, the Immigration Judge concluded that the respondent was not subject to this bar because he had entered the United States as a refugee, not as a lawful permanent resident, and he was not “admitted to the United States as an alien lawfully admitted for permanent residence” based on his adjustment of status under section 209(a) of the Act.
The DHS challenged this conclusion on appeal.
Held
Appeal sustained (in favor of the respondent)
Remanded
Rationale
The BIA reasoned as follows:
- Section 207 of the Act explicitly provides for the admission of “refugees,” and, unlike section 209(a)(2), it does not use the term “lawfully admitted . . . for permanent residence.” Thus, an “admission” under section 207 is an “admission” to the United States in the status of a “refugee,” not a lawful permanent resident. Matter of D-K-, 25 I&N Dec. 761, at 769 (BIA 2012).
- Section 209 of the Act, which governs the adjustment of status of refugees “admitted to the United States under section 207,” explicitly precludes refugees from adjusting their status if they have “acquired permanent resident status.” Sections 209(a)(1), (1)(C) of the Act. Accordingly, sections 207 and 209 provide that the respondent, who entered the United States as a “refugee” and later adjusted his status under section 209(a) of the Act, was not “previously . . . admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Act.
- The language of section 209(a)(2) of the Act is as follows:
- Any alien who is found . . . after a hearing before an immigration judge to be admissible . . . shall . . . be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien’s arrival into the United States.
- However, being “regarded,” following an adjustment of status, as “lawfully admitted . . . for permanent residence” as of one’s date of arrival in the United States is not the same thing as being “admitted” to the United States as a lawful permanent resident, as required by the bar to relief under section 212(h)(2) of the Act. Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015).
- Even though the BIA had previously held that a person “admitted to the United States as a refugee has been ‘admitted’ for purposes of section 101(a)(13)(A) of the Act,” Matter of D-K-, 25 I&N Dec. 761, 769 (BIA 2012) [emphasis added], it had never said that such a “refugee” has been admitted in the status of an alien “lawfully admitted for permanent residence,” for purposes of section 101(a)(20) of the Act [emphasis added].
- Therefore, to trigger the bar under section 212(h)(2) of the Act based on conviction for an aggravated felony, respondents must have (1) “entered the United States,” (2) “as lawful permanent residents,” (3) prior to being convicted of an aggravated felony. Matter of J-H-J-, 26 I&N Dec. 563, at 565 (BIA 2015) [emphasis added].
- The BIA explained that prior to Matter of J-H-J-, it had held that the term “admitted” in section 212(h) of the Act was ambiguous and could encompass an adjustment of status within the United States. Matter of E.W. Rodriguez, 25 I&N Dec. 784, 789 (BIA 2012); Matter of Koljenovic, 25 I&N Dec. 219, 220–23 (BIA 2010).
- Moreover, the BIA admitted that the Eighth Circuit Court of Appeal, in whose jurisdiction the instant case arises, deferred to BIA holdings in those cases. Roberts v. Holder, 745 F.3d 928, at 932 (8th Cir. 2014) (per curiam).
- However, in the face of “overwhelming circuit court authority in disagreement with Koljenovic and E.W. Rodriguez,” concluding that the term “admitted to the United States as an alien lawfully admitted for permanent residence” in section 212(h)(2) plainly and unambiguously required a person to enter the United States as a permanent resident, the BIA “accede[d] to the clear majority view of these . . . circuits” and withdrew from its prior holdings in Matter of Koljenovic and Matter of E.W. Rodriguez. See Matter of J-H-J-, 26 I&N Dec. at 564–65.
Commentary
The BIA remanded the record of proceedings to the Immigration Judge because, although the Immigration Judge had correctly decided that the respondent is not barred from applying for a 212(h) waiver based on his conviction for an aggravated felony, the initial decision contained an error that could only be corrected in immigration court proceedings.
Specifically, the Immigration Judge had erroneously determined that the respondent could apply for a “stand-alone” 212(h) waiver. As the BIA succinctly pointed out, that determination is inconsistent with Matter of Rivas, 26 I&N Dec. 130, at 132–33 (BIA 2013) (holding that a waiver of inadmissibility under section 212(h) of the Act is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status).
Based on the BIA’s flip flop on the issue of “lawfully admitted to the United States for permanent residence” in section 209(a)(2) of the Act, after it had persuaded the Eighth Circuit Court of Appeal to agree to the original BIA interpretation that can be described as assimilation of an applicant for adjustment of status to the posture of an applicant for admission to the United States, it should not be surprising to find other conundrums associated with the application of the 212(h) waiver.
Slightly stirring the ingredients of the recipe for the rationale in Matter of N-V-G- raises at least one question about the effect of entering the United States with an immigrant visa issued abroad by a United States Consulate Officer or returning to the United States as a lawful permanent resident after international travel before conviction for an aggravated felony.
Entry of a lawful permanent resident to the United States from abroad with an immigrant visa or under circumstances listed in section 101(a)(13)(C) of the Act (such as being absent from the United States for a continuous period in excess of 180 days) and subsequent conviction for an aggravated felony seems to bar such traveler from access to the 212(h) waiver “as an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” and since that admission has been convicted for an aggravated felony. See section 212(h)(2) of the Act.
Is there a rational basis for recognizing eligibility for a 212(h) waiver of a lawful permanent resident convicted for an aggravated felony who has remained in the United States and barring a lawful permanent resident in the same circumstances from applying for a 212(h) waiver on account of entry with an immigrant visa or upon return from international travel?
Perhaps, the reader can discern other questions and issues related to application of the 212(h) waiver after Matter of N-V-G-.
A summary of the standards applicable to the 212(h) waiver might be helpful.
A waiver of inadmissibility under section 212(h) of the Act is limited to the waiver of subparagraphs 212(a)(2)(A)(i)(I), (B), (D), and (E), and subparagraph 212(a)(2)(A)(i)(II) of the Act. These categories of inadmissible aliens include:
1) aliens who are convicted of or admit the commission of a crime or crimes involving moral turpitude (section 212(a)(2)(A)(i)(I) of the Act);
2) aliens convicted of multiple crimes for which the aggregate sentences amount to 5 years or more, whether or not they involve moral turpitude (section 212(a)(2)(B) of the Act);
3) aliens involved in prostitution or commercialized vice (section 212(a)(2)(D) of the Act);
4) aliens involved in serious criminal activity who have asserted immunity from prosecution (section 212(a)(2)(E) of the Act); and
5) aliens who are convicted of or admit the commission of a single offense of simple possession of marihuana weighing 30 grams or less (section 212(a)(2)(A)(i)(II) of the Act).
The term “serious criminal activity” means:
1) any felony;
2) any crime of violence, as defined in 18 U.S.C. § 16; or
3) any crime of reckless driving or of driving while intoxicated if such crime involves personal injury to another person.
See section 101(h) of the Act.
An applicant for a 212(h) waiver must qualify under one of three sets of criteria. The first set of criteria under section 212(h)(1)(A) of the Act requires proof that:
1) the applicant is inadmissible only for prostitution or procurement of prostitutes or proceeds from prostitution under section 212(a)(2)(D)(i) or (ii) of the Act (i.e. not inadmissible for coming to the United States to engage in commercialized vice, whether or not related to prostitution, under section 212(a)(2)(D)(iii) of the Act); or
2) the activities for which the applicant is inadmissible occurred more than 15 years before the application for a visa, admission, or adjustment of status; and
3) the applicant’s admission to the United States would not be contrary to the national welfare, safety, or security of the United States; and
4) the applicant has been rehabilitated.
The second alternative set of criteria under section 212(h)(1)(B) of the Act requires proof that:
1) the applicant is the spouse, parent, son, or daughter of a United States citizen or lawful permanent resident of the United States; and
2) the applicant’s exclusion would result in extreme hardship to one or more of the above described qualifying relatives.
It is important to note that the qualifying relatives for a 212(h) waiver differ from the qualifying relatives recognized for suspension of deportation and cancellation of removal for non-permanent residents. Only hardship to a United States citizen or lawful permanent resident spouse, parent or child can be considered for suspension of deportation and cancellation of removal applicants. A child cannot be 21 years of age or older. See section 101(b)(1) of the Act. A son or daughter can be a person who is 21 years of age or older. Thus, the pool of qualifying relatives for a 212(h) waiver applicant is deeper than the pool of qualifying relatives for a suspension of deportation or cancellation of removal applicant.
The third alternative set of criteria under section 212(h)(1)(C) of the Act only requires proof that the applicant is a battered spouse or child.
For all three alternatives, the Attorney General must consent to an application or re-application for a visa, admission to the United States, or adjustment of status. This consent is discretionary and is dictated to a great extent by statute and regulation. See section 212(h)(2) of the Act; 8 C.F.R. § 1212.7(d).
In practice, most applicants are limited by surrounding circumstances to applications under the second alternative set of criteria that requires proof of extreme hardship to one or more qualifying relatives. See section 212(h)(1)(B) of the Act.
The 212(h) waiver is not only limited to specific grounds of inadmissibility. The circumstances in which the waiver is appropriate are also limited. The BIA has recognized the use of the 212(h) waiver in the following situations:
1) when an alien is an applicant for admission to the United States; or
2) when in deportation or removal proceedings:
a. to waive a ground of inadmissibility that renders an alien deportable on a nunc pro tunc (i.e. legalese meaning “now for then”) basis;
b. in conjunction with an application for adjustment of status under section 245 of the Act; or
c. in conjunction with an application for registry under section 249 of the Act.
Matter of Rivas, 26 I&N Dec. 130 (BIA2013); Matter of Sanchez, 17 I&N Dec. 218, at 222-23 (BIA 1980); Matter of Parodi, 17 I&N Dec. 608, at 611 (BIA 1980); Matter of Bernabella, 13 I&N Dec. 42, at 44 (BIA 1968).
This circumstantial limitation relating to the 212(h) waiver forms the basis for the error committed by the Immigration Judge in Matter of N-V-G-, supra, that resulted in remand.
The 11th Circuit Court of Appeal expanded the availability of the 212(h) waiver in deportation proceedings under the nunc pro tunc criteria, regardless of whether or not the applicant had departed from the United States and returned. Yeung v. INS, 61 F.3d 833 (11th Cir. 1995). According to Yeung v. INS, an alien who is subject to a deportation charge and is otherwise eligible can apply for a 212(h) waiver as long as a qualifying family member exists.
Since Yeung v. INS was decided using the same rationale as Francis v. INS, 532 F.2d 268 (2nd Cir. 1976) (allowing nunc pro tunc application of the 212(c) waiver in deportation proceedings), the statutory counterpart rationale (i.e. determining whether an exclusion ground that is comparable or parallel to the charged deportation ground exists) would ordinarily come into play. However, as decided in connection with the 212(c) waiver, the United States Supreme Court has disapproved the statutory counterpart rationale. Judulang v. Holder, 565 U.S. 42 (2011). It appears, in the light of these decisions that the 212(h) waiver will become more widely applicable.
The following aliens are not eligible for a 212(h) waiver due to limitations on the consent of the Attorney General to an application or reapplication for a visa, admission to the United States, or adjustment of status:
1) aliens who have been convicted of or have admitted to committing acts of murder or torture, or an attempt or conspiracy to commit murder or torture;
2) lawful permanent resident aliens if after the date of admission as a lawful permanent resident the applicant has been convicted for an aggravated felony;
3) lawful permanent resident aliens who have not resided continuously in the United States for at least 7 years immediately preceding the initiation of deportation or removal proceedings; or
4) aliens who are inadmissible under section 212(a)(2) of the Act (criminal grounds) in cases involving “violent or dangerous crimes.”
See section 212(h)(2) of the Act; 8 C.F.R. § 1212.7(d).
In the case of aliens who are inadmissible for “violent and dangerous crimes,” consent to apply or reapply for a visa, admission to the United States, or adjustment of status can be given if:
1) the applicant demonstrates “extraordinary circumstances, such as those involving national security or foreign policy considerations;” or
2) denial of such consent would result in “exceptional and extremely unusual hardship.”
See 8 C.F.R. § 1212.7(d). This regulation further states that, depending on the gravity of the applicant’s offense, “a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.”
Since the respondent in N-V-G-, supra, appears to have committed a violent crime of domestic violence, this regulation could come into play on remand.
The vague manner in which 8 C.F.R. § 1212.7(d) was drafted and its contents make it almost impossible to refrain from further discussion.
The most obvious observation is that the “exceptional and extremely unusual hardship” standard for consent to consider a 212(h) waiver application is a higher standard than the “extreme hardship” standard for the 212(h) waiver itself. This raises the question of whether the regulatory scheme is inconsistent with the statute by denying access to the waiver based on a higher hardship standard than the statutory hardship standard for ultimate relief.
More than one appellate court has answered this question in the negative by distinguishing between section 212(h)(1) and 212(h)(2) of the Act and emphasizing the broad discretion of the Attorney General regarding consent under the latter section of law. Samuels v. Chertoff, 550 F.3d 252, at 257 (2nd Cir. 2008); Perez Pimental v. Mukasey, 530 F.3d 321, at 324-25 (5th Cir. 2008); Mejia v. Gonzalez, 499 F.3d 991 (9th Cir. 2007).
Nevertheless, the result of these decisions appears to be that a regulation bars access to the 212(h) waiver by imposing a higher hardship standard than Congress imposed for relief under section 212(h)(1)(B) of the Act. The tension between the regulation and the statute seems to linger after all the legal reasoning has concluded.
The remaining questions about the application of 8 C.F.R. § 1212.7(d) that remain puzzling to me are:
1) What criteria should be used to classify a crime as a “violent or dangerous crime?”
2) Since a conviction is not necessary for inadmissibility under section 212(a)(2) of the Act, and there might not be any criminal record, what evidence can be considered to classify an offense as a “violent and dangerous crime?”
3) Since section 212(h)(2) of the Act is independent and distinct from section 212(h)(1) of the Act, is it appropriate to limit consideration of hardship to the qualifying relatives identified in the latter section of law? If not, what individuals should be considered for the purpose of determining exceptional and extremely unusual hardship to obtain consent to apply or reapply for a visa, admission to the United States or adjustment of status; the respondent, any family member, any person?
4) What is the scope of “extraordinary circumstances,” other than national security or foreign policy considerations?
Perhaps, the reader can think of other unanswered questions about the application of 8 C.F.R. § 1212.7(d).
Another puzzle about the application of section 212(h)(2) of the Act is that Congress appears to have placed a higher burden on lawful permanent residents than on other aliens. For example, a lawful permanent resident who has been convicted for an aggravated felony or has not resided continuously in the United States for 7 years immediately preceding the initiation of immigration court proceedings is not eligible for a 212(h) waiver. However, an alien who entered the United States without inspection or is otherwise unlawfully in the United States and has been convicted for the same aggravated felony remains eligible to apply for a 212(h) waiver (if otherwise eligible) without any residence requirements. Nobody, including DHS attorneys with whom I have discussed this issue, has been able to come up with a cogent explanation.
There has been some litigation generated by unsuccessful attempts of lawful permanent resident aliens to deny “lawful” permanent resident status to gain access to the 212(h) waiver. See Matter of Ayala-Arevalo, 22 I&N Dec. 398 (BIA 1998). In Matter of Ayala-Arevalo, the respondent asserted that he was not subject to the 7 year continuous residence requirement. According to Ayala-Arevalo, he was inadmissible to the United States on the date he was admitted as a lawful permanent resident because at that time he was involved in an ongoing conspiracy to commit fraud. Therefore, Ayala-Arevalo argued that he was not a lawful permanent resident and should not be precluded from applying for relief under section 212(h) of the Act.
This reversal of litigation postures is striking. Usually, the DHS alleges unlawful status and the respondent vigorously maintains that immigration status is lawful.
It might be appropriate to make one other observation about rejecting the assimilation of an adjustment applicant to the posture of an applicant for admission by requiring a physical entry to qualify as an admission as a lawful permanent resident pursuant to section 101(a)(13) of the Act.
At least three circuit courts of appeal have held that aliens who acquire lawful permanent residence through adjustment of status, as opposed to aliens admitted at a port of entry with an immigrant visa, are not barred from applying for relief under section 212(h) of the Act. Martinez v. Mukasey, 519 F.3d 532, at 544-45 (5th Cir. 2008); Sum v. Holder, 602 F.3d 1092, at 1096 (9th Cir. 2010); Lanier v. United States Attorney General, 631 F.3d 1361, at 1366-67 (11th Cir. 2011). The underlying rationale for these decisions is that adjustment of status is not an admission as defined under section 101(a)(13) of the Act.
However, this interpretation could adversely affect access to other forms of relief. If, for example, an adjusted alien is not deemed to have been admitted as a lawful permanent resident of the United States, an alien who entered the United States without inspection and then adjusted to lawful permanent resident status would not be eligible to apply for a waiver under section 212(c) of the former Act or cancellation of removal for lawful permanent residents under section 240A(a) of the Act because such alien was never “admitted.” See Matter of Rosas, 22 I&N Dec. 616, at 623 (BIA 1999).
Hmm . . . a two-edged sword?
This commentary turned out to be more lengthy than originally intended. Hopefully, the tax on the reader’s time does not exceed the value of this discourse about the 212(h) waiver.