Matter of Vella, 27 I&N Dec. 138 (BIA 2017): Limitations on Eligibility for 212(h) Waiver

 

Introduction: Matter of Vella, 27 I&N Dec. 138 (BIA 2017)

On October 13, 2017, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of Vella, 27 I&N Dec. 138 (BIA 2017) [PDF version]. The Board considered the meaning of the phrase “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” in the context of the waiver provision found in section 212(h) of the Immigration and Nationality Act (INA). The Board held that the phrase encompasses any individual who was inspected, admitted, and who had then physically entered the United States at any time in the past. This means the phrase encompasses individuals who were admitted into the United States as lawful permanent residents even if that admission was not the alien's most recent acquisition of lawful permanent resident status.

Matter of Vella

In this article, we will examine the facts of the case, the Board's decision, and what the new precedent will mean going forward. Please see our website's section on “Waivers” to learn more about the section 212(h) waiver and other types of immigration waivers [see category].

Factual and Procedural History: 27 I&N Dec. at 138-39

The respondent, a native and citizen of Italy, was admitted to the United States as a lawful permanent resident (LPR) at a port of entry on October 8, 1967.

On September 24, 2007, the respondent was convicted in violation of 18 U.S.C. 371 and 1955 for conspiracy to operate an illegal gambling business. Based on this Federal criminal conviction, the Department of Homeland Security (DHS) charged the respondent as removable for having been convicted of an immigration aggravated felony under sections 101(a)(43)(J) and (U) of the INA. The respondent conceded that he was removable as charged under section 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony. However, on August 26, 2009, the Immigration Judge granted the alien's application for adjustment of status. (Note: The Board explained that because his conviction was not a crime involving moral turpitude (CIMT) [see article on precedent], he was not barred from adjustment of status after being found to be removable as charged.)

On February 3, 2015, the respondent was convicted in violation of another Federal criminal statute, extortion in violation of 18 U.S.C. 1951(a). The respondent was again issued a notice to appear for immigration proceedings. On this occasion, the Immigration Judge found that the respondent's conviction was an aggravated felony crime of violence under 18 U.S.C. 16(b), which is incorporated into the immigration laws at section 101(a)(43)(F) of the INA. However, on December 14, 2016, the Board vacated the Immigration Judge's decision and remanded the record because the United States Court of Appeals for the Third Circuit, from the jurisdiction of which the instant case arose, had ruled in Baptiste v. U.S. Att'y Gen., 841 F.3d 601, 621 (3d Cir. 2016) [PDF version], that 18 U.S.C. 16(b) was unconstitutionally vague as incorporated into the immigration laws.

On remand, the DHS filed additional immigration charges against the respondent, this time charging him with having been convicted of immigration aggravated felonies under sections 101(a)(43)(G) and (U) of the INA. The Immigration Judge sustained the charge that the respondent as removable under section 237(a)(2)(A)(iii) of the INA as an alien convicted of an aggravated felony. The respondent did not contest that he was removable. However, the respondent argued that he was eligible for a waiver of inadmissibility under section 212(h) of the INA. The Immigration Judge denied the respondent's section 212(h) waiver application, finding that he was ineligible because he had previously been admitted as an LPR in 1967, prior to his adjustment of status in 2009. The respondent appealed to the BIA.

Relevant Statute and Issue: 27 I&N Dec. at 139

The Board excerpted the relevant part of the section 212(h) waiver provision:

The question at issue in the instant case is the meaning of the phrase “previously been admitted to the United States as an alien lawfully admitted for permanent residence.” Neither party disputed that the respondent had been convicted of an aggravated felony subsequent to his admission in 1967 as an LPR but only after his adjustment of status in removal proceedings in 2009. The respondent argued that “previously … admitted” pertains only to one's most recent admission as an LPR and not to any prior admissions as an LPR and that he was, as a result, eligible for a section 212(h) waiver because the crime at issue was committed after his adjustment of status. The Immigration Judge held that “previously … admitted” applied to the respondent's 1967 admission as an LPR, thereby precluding him from eligibility for a section 212(h) waiver. Neither party disputed that the respondent had been convicted of an aggravated felony subsequent to his admission as an LPR.

In the subsequent sections, we will examine why the Board affirmed the Immigration Judge's reading of the statute.

Board's Analysis of Second Circuit Decision on Similar Facts: 27 I&N Dec. at 140

The Board explained that a very similar issue was addressed in 2010 by the United States Court of Appeals for the Second Circuit in Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) [PDF version]. In Dobrova, the alien had been admitted as an LPR at a port of entry. He was, subsequent to that admission, convicted of an aggravated felony and deported. Later, he was able to reenter the country by presenting a “defunct permanent resident card,” and as a result he was charged as removable for being admitted in LPR status despite not being entitled to such status. Id. at 299.

The alien in Dobrova, as in the instant case, sought a section 212(h) waiver, but he creatively argued that he was not barred because “previously been admitted to the United States as an alien lawfully admitted for permanent residence” pertained only to his most recent admission, which had not been lawful, and not to his original lawful admission. The Second Circuit however read “previously” as not referring to the “most recent occurrence of action, but to action that has taken place sometime in the indefinite past.” Id. at 301.

The Board excerpted the following portion of the Second Circuit decision:

In short, the Second Circuit examined the specific meaning of the word “previously” and its place within the statutory phrase to determine that it referred to previous admissions as an LPR, not just to whether the respondent was last admitted and still admitted as an LPR.

Board's Conclusion and New Rule: 27 I&N Dec. at 140-41

The Board stated that it found the Second Circuit's reading of section 212(h) to be persuasive. Additionally, the Board held that even if it had taken the position that the phrasing of section 212(h) was ambiguous — meaning that it could plausibly be read in more than one way — it would have nevertheless concluded that the best reading of the statute dictated that “previously” was intended to apply to any prior admission as an LPR.

The Board then applied the Second Circuit's analysis in Dobrova to the situation in the instant case. The Board determined that the respondent himself admitted to having been previously admitted as an LPR in 1967. Furthermore, the respondent admitted that his 2007 and 2015 convictions were immigration aggravated felonies. From these facts, the Board concluded that he was both “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” and an alien who was subsequently “convicted of an aggravated felony.”

The Board then articulated an additional basis for rejecting the respondent's argument that his 2009 adjustment of status precluded a finding that he was barred from eligibility for a section 212(h). The Board explained that, even under the respondent's preferred narrower reading of “previously been admitted,” the Third Circuit had held in Taveras v. Att'y Gen. of U.S., 731 F.3d 281, 290 (3d Cir. 2013) [PDF version], that “admission” involves physical entrance into the United States, and is thereby distinguishable from adjustment of status in removal proceedings while physically present in the United States.

The respondent made an additional argument that the Board's interpretation of section 212(h) violated his constitutional rights to due process and equal protection. Specifically, he argued that his rights were violated because he would have been eligible for a section 212(h) waiver had be procured his initial grant of LPR status through adjustment of status rather than, as he had, through consular processing. However, citing to Matter of G-K-, 26 I&N Dec. 88, 96 (BIA 2013) [PDF version], the Board explained that it does not have the authority to rule on the constitutionality of immigration statutes. For this reason, it did not consider the respondent's constitutional claims.

Conclusion

The Board's decision applies section 212(h) as barring from eligibility for the section 212(h) waiver of inadmissibility any alien who was admitted as an LPR, regardless of when, and who subsequently was convicted of an aggravated felony. The Board thereby extended the reasoning of the Second circuit in Dobrova v. Holder to the instant case, where the respondent had been previously admitted as an LPR but who committed the aggravated felony only after having adjusted status in removal proceedings. Although clarifying, the Board's decision does not break new ground.

Whether Matter of Vella is relevant will depend on the facts of the specific case. An alien who is charged with having been convicted of an aggravated felony or who is otherwise placed in removal proceedings should consult with an experienced immigration attorney immediately for case-specific guidance.