2nd Circuit: LPR who Adjusted After Admission is Eligible for 212(h) Waiver

11 Jan

Case: Husic v. Holder, Docket No. 14-607, 2nd Circuit, January 8, 2015

Holding: An alien who entered the country lawfully but not as an LPR, and who later adjusted to become an LPR, is not considered “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” under INA 212(h). Since he does not fall under that definition, he is eligible for a 212(h) waiver.

Analysis: This case represents yet another circuit court disagreeing with the BIA on this same issue. INA 212(h) is not available to an alien who has either an aggravated felony conviction or less than 7 years of lawful presence if he has “previously been admitted to the United States as an alien lawfully admitted for permanent residence.” The question is whether someone who was previously lawfully admitted but not as a permanent resident but later adjusts status in the United States, falls under this definition. The BIA says such a person would still fall under the definition but the Second Circuit now becomes the eighth federal appellate court to reach the opposite conclusion.

The problem arises from a lack of clarity in the language and definitions in the INA. An admission is a lawful entry after inspection and authorization by an immigration officer. An adjustment is a change of status to “an alien lawfully admitted for permanent residence.” The dispute is whether an adjustment therefore is an “admission” or at least the functional and legal equivalent to an “admission” such that an adjustment of status should be considered an “admission” for the purpose of interpreting this statute. That is what the BIA says. The Second Circuit and other courts have disagreed. They read the statute more literally. A previous admission as a permanent residence means both of those things must have happened together: (i) a lawful admission (ii) as a permanent residence. Under this interpretation, an adjustment is changing someone’s status to that of a permanent resident but is not a new admission.

The aggravated felony bar to removal relief is comprehensive and can be harsh in many cases. For a lot of people, the 212(h) waiver is the only option they have to present their equities to the immigration court and hope to stop their deportation. The alien must still have a relative to sponsor him and must still be able to show extreme hardship to immediate relatives unless it has been more than 15 years since his conviction. Therefore, this relief is still only available to a limited number of people. But, for those who are eligible and who adjusted status, this can be a lifeline to staying in the country.

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