Cite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
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Matter of E. W. RODRIGUEZ, Respondent
Decided May 2, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(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.
FOR RESPONDENT: Anne E. Kennedy, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Roslyn Gonzalez, Assistant
Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER and ADKINS-BLANCH, Board Members.
Dissenting Opinion: PAULEY, Board Member.
GUENDELSBERGER, Board Member:
In a decision dated May 27, 2011, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted
of an aggravated felony, determined that he was ineligible for a waiver
of inadmissibility under section 212(h)(1)(B) of the Act, 8 U.S.C.
§ 1182(h)(1)(B) (2006), and ordered him removed from the United States.
On October 11, 2011, we dismissed the respondent’s appeal from that
decision. The respondent has filed a timely motion to reconsider pursuant
to section 240(c)(6) of the Act, 8 U.S.C. § 1229a(c)(6) (2006). In his motion,
the respondent argues that our prior decision was erroneous because it failedCite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
1
Section 245A of the Act, which was codified pursuant to section 201 of the Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3394, authorized the
Attorney General to confer lawful permanent resident status on individuals who had been
unlawfully present in the United States for a continuous period beginning before January 1,
1982.
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to follow controlling circuit precedent regarding his eligibility for a waiver
of inadmissibility under section 212(h)(1)(B). The motion to reconsider will
be granted and the record will be remanded for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The respondent is a native and citizen of El Salvador who entered the
United States without inspection on December 25, 1981. His status was
adjusted to that of a lawful permanent resident on March 8, 1989, pursuant
to the “legalization” program in section 245A of the Act, 8 U.S.C. § 1255a
(1988).1 On December 17, 2007, the respondent was convicted of bank fraud
in violation of 18 U.S.C. § 1344 (2006). The respondent has conceded
removability, so there is no dispute that his conviction renders him removable
as an alien convicted of an aggravated felony. Accordingly, the only issue
before us is whether the respondent has established that he is eligible for relief
from removal, as required by section 240(c)(4)(A) of the Act.
II. ANALYSIS
The respondent seeks adjustment of status, a form of relief that can only
be granted to an alien who has been “inspected and admitted or paroled”
into the United States and who demonstrates, among other things, that
he is “admissible to the United States for permanent residence.” Section
245(a) of the Act, 8 U.S.C. § 1255(a) (2006). The respondent does not
presently satisfy the “admissibility” requirement for adjustment, however,
because his bank fraud conviction renders him inadmissible under section
212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime involving moral
turpitude. To overcome his inadmissibility and qualify for adjustment
of status, the respondent needs a waiver under section 212(h)(1)(B) of the Act.
See Matter of Parodi, 17 I&N Dec. 608, 611 (BIA 1980). To qualify for this
waiver, the respondent must establish, inter alia, that a “denial of admission”
would result in extreme hardship to certain relatives and that he deserves
a favorable exercise of discretion. Section 212(h)(1)(B) of the Act; see also
Matter of Mendez, 21 I&N Dec. 296 (BIA 1996).Cite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
2 This so-called “aggravated felony bar” was codified by section 348(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.
104-208, 110 Stat. 3009-546, 3009-639.
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A. Section 212(h) Aggravated Felony Bar
According to the Immigration Judge, the respondent is ineligible
for a section 212(h)(1)(B) waiver—and by extension adjustment
of status—because he was convicted of an aggravated felony after having been
admitted to lawful permanent residence. In support of that determination, the
Immigration Judge relied on the penultimate sentence of the undesignated
paragraph appearing at the end of section 212(h), which states as follows,
in pertinent part:
No waiver shall be provided 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 if . . . since the date of such admission the alien has been
convicted of an aggravated felony. . . .2
In his motion to reconsider, the respondent argues, as he did on appeal,
that the above-quoted “aggravated felony bar” does not apply to him because
he was never “admitted to the United States as an alien lawfully admitted
for permanent residence,” and that the Immigration Judge’s decision to the
contrary was invalid because it conflicted with the decision of the
United States Court of Appeals for the Fifth Circuit in Martinez v. Mukasey,
519 F.3d 532 (5th Cir. 2008). In Martinez, the Fifth Circuit reviewed
a decision in which the Board applied the aggravated felony bar to deny
section 212(h) relief to an individual who had originally been admitted to the
United States as a nonimmigrant but who had sustained an aggravated felony
conviction after adjusting to lawful permanent resident status. The Martinez
court reversed our denial of relief, holding that the statutory phrase “an alien
who has previously been admitted to the United States as an alien lawfully
admitted for permanent residence” was unambiguous and referred exclusively
to individuals who had lawfully entered the United States as permanent
residents after inspection at a port of entry, not to aliens who had acquired
lawful permanent residence through adjustment of status from within the
United States after entry. Id. at 542-46. Reasoning by negative inference, the
Martinez court held that “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.” Id. at 546.
In our decision dismissing the respondent’s appeal, we acknowledged
Martinez v. Mukasey but concluded that it was distinguishable on its factsCite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
3
In Matter of Koljenovic, we interpreted the phrase “an alien who has previously been
admitted to the United States as an alien lawfully admitted for permanent residence”
in connection with the statutory requirement that a lawful permanent resident must show
7 years of continuous lawful residence prior to the commencement of removal proceedings.
Although this case involves an aggravated felony conviction rather than the continuous
lawful residence requirement, the operative statutory phrase is the same in both cases.
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because it involved an alien who had adjusted to lawful permanent resident
status after having been admitted as a nonimmigrant at a port of entry, whereas
the respondent had adjusted status under the legalization program without ever
having previously been admitted. Since the respondent had adjusted to lawful
permanent resident status without a prior admission, we concluded that his
case was controlled by Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010),
in which we distinguished Martinez as follows:
The respondent cites Martinez v. Mukasey to support his claim that he is eligible
for a waiver under section 212(h) of the Act. In that case, the alien was admitted after
inspection as a nonimmigrant visitor and subsequently adjusted his status to that
of a lawful permanent resident under section 245A of the Act. The . . .
Fifth Circuit . . . held that “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.” However, Martinez did not consider whether
the same rule would apply in a case like the respondent’s where the alien was not
previously admitted. Indeed, if we were to literally apply the Fifth Circuit’s holding
to this case, the respondent would have no admission date at all. Given that the Fifth
Circuit did not have to confront the factual scenario presented here, we are not
persuaded by respondent’s contention that Martinez should control.
Id. at 223 (citations omitted).3
In his motion to reconsider, the respondent maintains that Martinez is not
meaningfullydistinguishable because the Fifth Circuit’s central holding—that
the section 212(h) aggravated felony bar applies only to those who have been
lawfully admitted as permanent residents at a port of entry—clearly inures
to the benefit of any alien who (like himself) acquired lawful permanent
resident status without admission. In further support of his argument, the
respondent invokes the Eleventh Circuit’s recent decision in Lanier v. U.S.
Attorney General, 631 F.3d 1363 (11th Cir. 2011), which rejected Koljenovic
and applied the rationale of Martinez in a factual setting virtually identical
to that presented here. See also Bracamontes v. Holder, Nos. 10-2033,
10-2280, 2012 WL 1037479 (4th Cir. Mar. 29, 2012) (following Martinez and
Lanier and holding that an alien convicted of an aggravated felony after
adjusting to lawful permanent resident status is not ineligible for section
212(h) relief). Finally, the respondent accurately points out that the BoardCite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
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has issued inconsistent unpublished decisions in the wake of Martinez and
Koljenovic, sowing confusion in the Immigration Courts. Under the
circumstances, we agree with the respondent that reconsideration
is appropriate.
B. Deference to Martinez v. Mukasey
We acknowledge at the outset that Martinez v. Mukasey, 519 F.3d 532,
is controlling precedent in removal proceedings arising within the Fifth
Circuit. We respectfully disagree with the Martinez court’s interpretation
of the statute, but we are not free to construe the statute differently
in Fifth Circuit cases because the Martinez court found the language of section
212(h) to be unambiguous. See Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005) (holding that a court’s prior judicial
construction of a statute trumps a subsequent agency construction that
is otherwise entitled to deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), where the prior court
decision held that its construction followed from the unambiguous terms of the
statute and thus left no room for agency discretion). Because Bracamontes
v. Holder, 2012 WL 1037479, and Lanier v. U.S. Attorney General, 631 F.3d
1363, also found section 212(h) to be unambiguous, we likewise conclude that
those decisions are binding precedent in removal proceedings arising within
the Fourth and Eleventh Circuits, respectively.
Although the respondent’s case is factually distinguishable from Martinez
because he was never “admitted” to the United States, the breadth of the
Fifth Circuit’s holding persuades us that this factual distinction does not justify
a different legal outcome. In the Martinez court’s view, the section 212(h)
aggravated felony bar applies only if the applicant was admitted as a lawful
permanent resident at the border, but not if he was merely admitted to lawful
permanent resident status. Since the respondent was not lawfully admitted
to the United States as a lawful permanent resident following inspection
at a port of entry, Martinez dictates that the aggravated felony bar
is no impediment to his eligibility for section 212(h) relief.
In light of the foregoing, we will grant the respondent’s motion
to reconsider and remand the record to the Immigration Judge for further
proceedings regarding his applications for relief from removal.
C. Continued Adherence to Matter of Koljenovic
Although Immigration Judges and the Board are obliged to follow
Martinez, Lanier, and Bracamontesin removal proceedings arising within the
relevant circuits, we respectfully decline to follow those decisionsCite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
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in proceedings arising elsewhere. We conclude—for reasons already stated
in Matter of Koljenovic, 25 I&N Dec. at 220-23—that the language of section
212(h) is ambiguous when understood in the context of the statute taken
as a whole. We also hold that the proper resolution of that ambiguity
is to interpret the statute as barring relief for 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 is one of a series of precedents in which the Board
has grappled with whether (or when) the statutory terms “admitted” and
“admission” should be construed to include a grant of adjustment of status.
While we have acknowledged that adjustment of status does not fit within the
statutory definition of the term “admission” set forth at section 101(a)(13)(A)
of the Act, we have nevertheless been constrained to treat adjustment
as an admission in order to preserve the coherence of the statutory scheme and
avoid absurdities. E.g., Matter of Espinosa Guillot, 25 I&N Dec. 653, 655
(BIA 2011); Matter of Alyazji, 25 I&N Dec. 397, 399, 403 (BIA 2011); Matter
of Lemus, 24 I&N Dec. 373, 377 (BIA 2007); Matter of Rodarte, 23 I&N Dec.
905, 908 (BIA 2006); Matter of Shanu, 23 I&N Dec. 754, 757 (BIA 2005),
vacated sub nom. Aremu v. Dep’t of Homeland Sec., 450 F.3d 578 (4th Cir.
2006), and overruled in part by Matter of Alyazji, 25 I&N Dec. 397; Matter
of Rosas, 22 I&N Dec. 616, 621, 623 (BIA 1999).
Our prior decisions have explained at some length that refusal to treat
adjustment of status as an admission can result in serious incongruities, and
it is unnecessary to repeat that discussion here. We respectfully conclude that
the language of the statute does not compel such an interpretation.
III. CONCLUSION
In conclusion, deference to Fifth Circuit precedent requires us to reconsider
our prior decision in this matter and to conclude that the respondent is not
ineligible for section 212(h) relief as a result of his aggravated felony
conviction. Accordingly, we will grant the respondent’s motion to reconsider,
sustain his appeal, and remand the record to the Immigration Judge for further
proceedings.
In jurisdictions where controlling circuit law does not forbid us from doing
so, however, we will continue to hold—in accordance with the reasoning
underlying our own precedent in Matter of Koljenovic, 25 I&N Dec. 219, that
section 212(h) relief is unavailable to any alien who has been convicted
of an aggravated felony after acquiring lawful permanent resident status.Cite as 25 I&N Dec. 784 (BIA 2012) Interim Decision #3749
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ORDER: The respondent’s motion to reconsider is granted.
FURTHER ORDER: Upon reconsideration, the respondent’s appeal
is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
DISSENTING OPINION: Roger A. Pauley, Board Member
I respectfully dissent and would apply Matter of Koljenovic, 25 I&N Dec.
219 (BIA 2010), to the facts of this case because they present a scenario not
addressed in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008).