26 I. & N. Dec. 563
BIA2015Background
- Respondent is a native and citizen of China whose status was adjusted to lawful permanent resident in 2009.
- On March 21, 2012, Respondent was convicted in Minnesota of first-degree assault, an aggravated felony.
- Respondent sought a waiver of inadmissibility under section 212(h) in conjunction with his adjustment of status application under section 245(a).
- Immigration Judge found Respondent ineligible for 212(h) waiver due to the then-controlling view that 212(h) precluded those who had entered as LPRs from eligibility after an aggravated felony.
- Board remanded the record to address the record further; on remand, the Board accedes to the majority view regarding 212(h) and remands for a new IJ decision.
- Court remands for further proceedings: (a) eligibility for 212(h) waiver consistent with the majority interpretation, and (b) consideration of potential removal under the Convention Against Torture if fact-finding supports it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 212(h) bars eligibility for a waiver when Respondent adjusted status in the U.S. rather than entering as an LPR. | Roberts v. Holder favors preclusion. | Koljenovic and E.W. Rodriguez favored broader preclusion. | 212(h) precludes only those who entered as LPRs. |
| Whether Respondent may apply for 212(h) waiver on remand given the majority view denying broader preclusion. | Respondent remains eligible under the plain language as not an LPR entrant. | Administrative interpretations must align with prior BIA decisions. | Remanded for eligibility determination consistent with the majority view. |
| Whether the case should be remanded to address potential CAT relief with adequate factual and legal analysis. | CAT relief analysis should be addressed if record supports it. | Further fact-finding and legal analysis required before CAT ruling. | Remand for adequate factual findings and legal analysis on CAT relief. |
Key Cases Cited
- Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014) (statutory interpretation at 212(h) ambiguity)
- Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) (BIA interpretation prior to majority view)
- Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) (BIA interpretation prior to majority view)
- Medina-Rosales v. Holder, 778 F.3d 1140 (10th Cir. 2015) (circuits favor plain-language reading of 212(h))
- Husic v. Holder, 776 F.3d 59 (2d Cir. 2015) (circuits reject Koljenovic/E.W. Rodriguez in favor of plain language reading)
- Stanovsek v. Holder, 768 F.3d 515 (6th Cir. 2014) (circuit alignment with majority interpretation)
- Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014) (circuit alignment with majority interpretation)
- Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013) (circuit alignment with majority interpretation)
- Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012) (circuit alignment with majority interpretation)
- Hanif v. Att’y Gen. of U.S., 694 F.3d 479 (3d Cir. 2012) (circuit alignment with majority interpretation)
- Lanier v. U.S. Att’y Gen., 631 F.3d 1363 (11th Cir. 2011) (circuit alignment with majority interpretation)
- Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008) (circuit alignment with majority interpretation)