26 I. & N. Dec. 130
BIA2013Background
- Respondent is a Colombian native and U.S. permanent resident since 1998 who committed two petit larceny offenses in 2001.
- Respondent conceded removability under 8 U.S.C. § 1227(a)(2)(A)(ii) as two crimes involving moral turpitude committed after admission.
- Respondent sought a waiver of inadmissibility under 8 U.S.C. § 1182(h).
- Immigration Judge granted a nunc pro tunc § 212(h) waiver on a stand-alone basis, without an adjustment of status application.
- DHS appealed, arguing § 212(h) requires concurrent adjustment and stand-alone waivers are not permitted.
- Panel sustains DHS appeal, denying respondent’s motion to remand and ordering removal to Colombia.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 212(h) waiver may be granted nunc pro tunc on a stand-alone basis in removal proceedings | DHS argues no stand-alone waiver without adjustment | Rivas argues Sanchez allows stand-alone waiver | Waiver cannot be stand-alone; nunc pro tunc relief not allowed without adjustment |
| Effect of amendments to § 212(h) post-Sanchez on eligibility in removal proceedings | Statutory amendments require adjustment application for waiver | Rivas contends Sanchez still controls | Amendments foreclose stand-alone waiver; eligibility tied to adjustment or admission context |
| Whether adjustment of status must be filed concurrently with § 212(h) waiver in removal proceedings | Statutory/regulatory text requires concurrent adjustment | Nunc pro tunc relief previously used to circumvent requirement | Concurrent adjustment is required; stand-alone waiver improper |
| Whether to remand in light of Ramos v. U.S. Attorney Gen. and related district case law | Ramos supports potential reopening/remand | Remand discretionary and not warranted here | Remand denied; Ramos did not alter removability issue in this record |
| Overall outcome of DHS appeal given lack of eligibility for adjustment or other relief | DHS seeks removal consistent with lack of waiver | Respondent seeks relief via waiver | DHS appeal sustained; respondent ordered removed |
Key Cases Cited
- Poveda v. U.S. Att’y Gen., 692 F.3d 1168 (11th Cir. 2012) (waiver eligibility tied to adjustment, not travel; stand-alone waiver unavailable in removal)
- Cabral v. Holder, 632 F.3d 887 (5th Cir. 2011) (readmission/readjudication context for § 212(h) waiver; need for adjustment in removal)
- Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir. 2007) (rational distinction between admitted vs. arriving aliens for waiver)
- Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001) (supporting statutory interpretation of § 212(h) limits)
- Judulang v. Holder, 132 S. Ct. 476 (2011) (Supreme Court on limits of nunc pro tunc relief and analogous concerns)
- Sanchez, 17 I&N Dec. 218 (BIA 1980) (stand-alone § 212(h) allowed previously; later amendments changed approach)
- Abosi, 24 I&N Dec. 204 (BIA 2007) (limited context for adjustment without stand-alone waiver; does not apply here)
- Y-N-P-, 26 I&N Dec. 10 (BIA 2012) (requires concurrent adjustment for inadmissible applicant in removal)