Shade Lawal v. U.S. Attorney General
710 F.3d 1288
| 11th Cir. | 2013Background
- Lawal, a Nigerian-born lawful permanent resident since 1981, was convicted in Georgia in 2004 (theft by taking) and 2008 (employment insurance fraud).
- He left the U.S. for a two-week trip to Nigeria in 2009 and reentered lawfully in 2010, where removal proceedings were initiated for two crimes involving moral turpitude and an aggravated felony involving theft.
- Lawal sought a §212(h) waiver of inadmissibility; the IJ denied, and the BIA agreed but dismissed the appeal for failure to concurrently file an adjustment of status application under 8 C.F.R. § 1245.1(f).
- Lawal argued that Sanchez permits a §212(h) waiver without an adjustment of status application, asserting BIA precedent inconsistent with that view.
- The court remanded to allow the BIA to reconsider in light of Poveda and, if Sanchez remains applicable, to apply Sanchez to Lawal’s case; the BIA’s comparable grounds rule was also to be reconsidered following Judulang.
- The decision is VACATED and REMANDED.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA erred in dismissing for failure to file an adjustment of status. | Lawal seeks §212(h) relief without adjustment filing per Sanchez. | BIA requires adjustment filing under § 1245.1(f). | Remand to revise in light of Poveda and Sanchez applicability. |
| Whether Sanchez remains viable precedent for Lawal’s case. | Sanchez allows nunc pro tunc relief despite not filing adjustment. | Sanchez's rationale has been eroded by subsequent law changes. | Remand to determine if Sanchez governs in Lawal's circumstances. |
| Whether Judulang v. Holder requires reconsideration of the BIA’s comparable grounds rule. | Judulang undermines the comparable grounds rationale. | Comparable grounds rule may survive in modified form. | Remand to reassess under Judulang. |
| What is the proper interpretation of the interplay between Sanchez, Yeung, and Poveda post-IIRIRA? | There is an unresolved ambiguity in BIA interpretations. | The evolving precedent clarifies eligibility under §212(h). | Remand for BIA to harmonize interpretations. |
Key Cases Cited
- Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980) (waiver conditions tied to excludability and deportability considerations)
- Yeung v. INS, 76 F.3d 337 (11th Cir. 1993) (equal protection concerns over travel/absence rule in §212(h))
- Poveda v. U.S. Att’y Gen., 692 F.3d 1168 (11th Cir. 2012) (post‑Sanchez/IIRIRA framework; two avenues for §212(h) relief described)
- Matter of L—, 1 I. & N. Dec. 1 (BIA 1940) (historical approach to discretionary waivers for excludable/deportability grounds)
- Matter of Blake, 23 I. & N. Dec. 722 (BIA 2005) (comparable grounds rule later struck down by Judulang)