Robert Stanovsek v. Eric Holder, Jr., 768 F.3d 515

Background

Petitioner Zvonko Stanovsek, an Australian national, entered the U.S. in 1990 on a nonimmigrant visitor visa and later adjusted status to lawful permanent resident (LPR) via marriage.
In 2009 he was convicted of aggravated theft (Ohio Rev. Code § 2913.02(A)(1)) and sentenced to three years; the crime qualified as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G).
DHS charged him removable as an alien convicted of an aggravated felony after admission, and Stanovsek conceded removability but applied for a § 212(h) hardship waiver based on extreme hardship to his U.S. citizen spouse.
The IJ and BIA denied § 212(h) relief relying on BIA precedent (Matter of Rodriguez), interpreting the statute to bar waivers for anyone convicted of an aggravated felony after acquiring LPR status.
The Sixth Circuit majority reversed, holding the statutory text unambiguously bars waivers only where the person was admitted to the United States as an LPR at the time of initial lawful entry — not where the person was admitted as a nonimmigrant and later adjusted status.
A dissent argued the statute is ambiguous, that other INA provisions treat adjustment-as-admission, and that Chevron deference to the BIA requires affirmance of the BIA’s interpretation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 212(h)’s bar on waivers for aliens “previously admitted ... as an alien lawfully admitted for permanent residence” applies to persons who entered as nonimmigrants and later adjusted to LPR status	Stanovsek: statutory definitions show “admitted” means physical entry; the bar applies only if one entered initially as an LPR, so adjusted LPRs remain eligible for § 212(h)	Government/BIA: adjustment constitutes an admission for some purposes; the phrase can be read to include those who adjusted status, so the BIA’s interpretation denying waivers is reasonable	Majority: statutory text and definitions are unambiguous — bar applies only to those admitted as LPRs at initial entry; remand for further proceedings
Whether Chevron deference requires upholding the BIA’s contrary interpretation	Stanovsek: statute is unambiguous, so Chevron does not apply	Government: even if ambiguous, BIA’s interpretation is reasonable and entitled to deference	Majority: no Chevron — the statute is clear when read with INA definitions; BIA decision vacated
Whether statutory cross-references (e.g., § 1255(b), §§ 1186a/1186b, § 1151) change the meaning of “admitted as an alien lawfully admitted for permanent residence”	Stanovsek: those provisions do not alter the definitional meaning of “admitted” as initial lawful entry	Government/BIA: other provisions treat adjustment as an admission or as "considered" admission for various purposes, supporting BIA view	Majority: those cross-references do not make § 1182(h) ambiguous; they address limited contexts and do not override definitional text
Practical/intentional concerns about disparate treatment of LPRs who entered as LPRs vs. adjusted LPRs	Stanovsek: statutory text controls even if result seems odd; no constitutional issue raised	Government/BIA/Dissent: statutory construction that treats all LPRs alike is more sensible and consistent with agency practice	Majority: pragmatic oddity does not justify departing from plain statutory language; must apply the text

Key Cases Cited

Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007) ("admitted" means physical first lawful entry; adjustment is not an admission for certain removal provisions)
Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013) (interpreting § 1182(h) language to require physical entry meaning of "admitted")
Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014) (bar to § 212(h) relief does not apply to post-entry adjustees)
Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014) (upholding BIA construction under Chevron; treated adjustment-as-admission)
Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191 (2014) (describing limits of judicial review and when Chevron deference applies)