Bracamontes v. Holder, 675 F.3d 380

Bracamontes, a Mexican national, entered the U.S. illegally in 1976 and gained temporary residency in 1987, later adjusting to lawful permanent resident status in 1990.
He was convicted in 1999 of malicious wounding, an aggravated felony, and later faced removal proceedings based on that conviction.
Petitioner sought a § 212(h) waiver as the spouse of a U.S. citizen, arguing removal would cause extreme hardship to family.
IJ denied adjustment and § 212(h) waiver; BIA affirmed, holding his post-entry adjustment constituted an “admission.”
Petitioner challenged the BIA’s interpretation, arguing § 212(h) does not apply to his post-entry adjustment; the Fourth Circuit granted review.
Court vacated the BIA order, held § 212(h) does not bar a waiver for post-entry adjustment, and remanded for discretionary consideration of the waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 212(h) bars a waiver for a post-entry adjustee	Bracamontes was not admitted as a permanent resident when he adjusted; § 212(h) bars only those previously admitted as permanent residents.	§ 212(h) bars a waiver for any alien previously admitted as a permanent resident after an aggravated felony.	Petition granted; § 212(h) does not bar a waiver for post-entry adjustment.
Whether the BIA's other rulings (remand, Convention Against Torture, stay) are reviewable	Requests review of discretionary/ factual determinations.	Those decisions are non-reviewable discretionary or factual rulings.	No jurisdiction to review those claims; dismissed.

Saintha v. Mukasey, 516 F.3d 243 (4th Cir. 2008) (Chevron step one–deference when ambiguous)
Li Fang Lin v. Mukasey, 517 F.3d 685 (4th Cir. 2008) (statutory interpretation in immigration context)
Aremu v. Dep't of Homeland Sec., 450 F.3d 578 (4th Cir. 2006) (date of admission not necessarily the adjustment date; Chevron)
In re Michel, 21 I. & N. Dec. 1101 (BIA 1998) (statutory text plain; no waiver for permanent resident with aggravated felony)
In re Koljenovic, 25 I. & N. Dec. 219 (BIA 2010) (ambiguity; BIA preferred adjustment-based approach)
Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (§ 212(h) rational basis; differentiated treatment for adjustees)
Lanier v. United States Att'y Gen., 631 F.3d 1366 (11th Cir. 2011) (plain meaning; strict interpretation of admission)
Aguirre-Aguirre v. INS, 526 U.S. 415 (1999) (Chevron deference in immigration context)
Conn. Nat'l Bank v. Germain, 503 U.S. 249 (1992) (statutory interpretation principle: mean what statute says)
Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (admission/adjustment distinction under § 212(h))
Martinez v. Mukasey (5th Cir.), 519 F.3d 532 (5th Cir. 2008) (§ 212(h) waiver eligibility under specific facts)