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212(h) Discretionary Waiver May Now Be Available Even for Aggravated Felony

September 3, 2013

JailThere is new case law from a recent court decision that now allows certain green card holders to apply for a discretionary waiver from removability even for an aggravated felony conviction. The US Court of Appeals for the Seventh Circuit just held that the IIRIRA bar that prohibits 212(h) waivers to green card holders convicted of an aggravated felony, does not apply when the person has not been previously admitted to the US while in permanent residence status. This means that if you have a green card, and you were charged with removability based upon an aggravated felony conviction, you can apply for a 212(h) discretionary waiver of removability if you were never previously admitted to the US while already in green card status.

Section 212(h) of the Immigration and Nationality Act (INA) allows for a discretionary waiver of removability. Prior to the 1996 Immigration Reform and Immigrant Responsibility Act (IIRIRA), the only people who were barred from applying for the 212(h) waiver were those convicted of murder or criminal acts involving torture, or the attempt or conspiracy to commit such crimes. After IIRIRA, the bar was expanded to include those who have been convicted of an aggravated felony.

US courts have previously held that those permanent residents who were previously “admitted” are barred from applying for the 212(h) discretionary waiver. The BIA held in Matter of Koljenovic, decided April 21, 2010, that a person who entered without inspection (EWI) and then later adjusted status to permanent residence while in US, is subject to the bar. The BIA reasoned that although a person who came into the US as an EWI is not deemed to have been “admitted” into the US, it held that once that person has adjusted status to permanent residence, that person is deemed to have been “admitted” into the US as a result of being granted legal LPR status.

The US Court of Appeals for the Seventh Circuit held in Papazoglou v. Holder, decided August 6, 2013, held that a person who is not a permanent resident enters the US and then adjusts to permanent resident status while in the US, that person is not subject to the bar provided that the person did not enter the US in LPR status. The Court of Appeals did not necessarily disagree with the BIA decision regarding admission. Rather, it disagreed with the BIA as to whether the statute requires one to have been admitted as a permanent resident.

The Court of Appeals examined the statutory language of § 212(h) that “No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence…” Using the doctrines of statutory construction, the court reasoned that the words “admitted to the United States as an alien lawfully admitted for permanent residence” means that the statute only applies to a person who was admitted while the person was already a permanent resident.

Consequently, an aggravated felony no longer be an absolute bar to the 212(h) discretionary waiver for certain permanent residents.

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