Matter of J-H-J-, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 12, 2015
26 I&N Dec. 563 (BIA 2015)
Interim Decision #3836
FOR RESPONDENT: Monica Nevin, Esquire, Minneapolis, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Terry M. Louie, Senior Attorney
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated August 29, 2014, an Immigration Judge found the respondent ineligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act,
The respondent is a native and citizen of China whose status was adjusted to that of a lawful permanent resident in 2009. On March 21, 2012, he was convicted in Minnesota of assault in the first degree, which he has conceded is an aggravated felony.
The Immigration Judge found that the respondent was ineligible for a waiver in conjunction with his application for adjustment of status, even though he became a lawful permanent resident by adjusting his status inside the United States, rather than by being admitted at a port of entry. In making this determination, the Immigration Judge applied Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014), a decision of the United States Court of Appeals for the Eighth Circuit, in whose jurisdiction this case arises. In that decision, the court held that section 212(h) of the Act is ambiguous as to the meaning of the phrase “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and therefore deferred to our construction of the statute in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), and Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). Roberts v. Holder, 745 F.3d at 932-33.
The respondent would be ineligible for a section 212(h) waiver under Roberts v. Holder and our decisions in Koljenovic and E.W. Rodriguez. However, nine circuit courts have held that the plain language of section 212(h) of the Act precludes aliens from establishing eligibility for relief only if they lawfully entered the United States as permanent residents and thereafter committed an aggravated felony. Medina-Rosales v. Holder, 778 F.3d 1140 (10th Cir. 2015); Husic v. Holder, 776 F.3d 59 (2d Cir. 2015); Stanovsek v. Holder, 768 F.3d 515 (6th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Hanif v. Att‘y Gen. of U.S., 694 F.3d 479 (3d Cir. 2012); Lanier v. U.S. Att‘y Gen., 631 F.3d 1363 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008).1 The decisions of the Second and Tenth Circuits were issued subsequent to Roberts and expressly disagreed with the Eighth Circuit‘s reasoning. Medina-Rosales v. Holder, 778 F.3d at 1144; Husic v. Holder, 776 F.3d at 62, 66.
Given the overwhelming circuit court authority in disagreement with Koljenovic and E.W. Rodriguez on the basis of the plain language of the statute, we will now accede to the clear majority view of these nine circuits. See Matter of C-T-L-, 25 I&N Dec. 341, 347 (BIA 2010) (stating that consistency and predictability are important principles in immigration law);
On remand, the Immigration Judge should also consider the respondent‘s claim that it is more likely than not that he will be subjected to torture in China on account of his conviction for a serious and violent crime in the United States. We cannot meaningfully address the respondent‘s arguments in this regard absent sufficient legal analysis by the Immigration Judge or adequate factual findings, which we are without authority to make in the first instance. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (remanding to the Immigration Judge because of insufficient factual findings and legal analysis);
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.