Criminal convictions are always problematic for aliens. At the very least, a criminal conviction is a negative factor requiring an alien to show equities. However, criminal convictions can often result in an alien being found inadmissible and/or removable from the United States. The relief available to aliens who are inadmissible and/or removable due to criminal convictions is limited. The Board of Immigration Appeals (BIA) recent precedent decisions are making it more and more difficult for aliens who are inadmissible and/or removable due to criminal convictions.

On June 21, 2012, the BIA held a lawful permanent resident who was granted cancellation of removal under section 240A(a) of the Immigration & Nationality Act (INA) in prior removal proceedings initiated by a drug conviction has the burden to prove that he or she is not inadmissible on the basis of the conviction when applying for adjustment of status in a subsequent removal proceeding. See Matter of Fernandez Taveras, 25 I&N Dec. 834 (BIA 2012). In the Matter of Fernandez Taveras, the alien had been admitted to the United States in 1978 and was placed in removal proceedings based upon a 1999 conviction for possession of crack cocaine. Id. at 834-835. He was granted cancellation of removal by the immigration court pursuant to INA §240A(a) in 2004. Id. at 834.

Subsequent removal proceedings were initiated against the alien where he was charged with removability based upon INA §237(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude. After the grant of cancellation of removal, the alien had accrued additional convictions, including convictions for petit larceny in 2006 and 2008. Id. at 834-835. As relief from removal, the alien sought adjustment of status coupled with a waiver pursuant to INA §212(h). Id. The Immigration Judge granted the alien’s INA §212(h) waiver as well as his application for adjustment of status. Id. at 834. However, the Department of Homeland Security (DHS) appealed the decision to the BIA. Id. The BIA sustained DHS’s appeal reversing the Immigration Judge’s decision and ordering the alien removed from the United States. Id.

As an initial matter, the Immigration Judge had “concluded that pursuant to section 101(a)(13)(C)(v) of the Act (INA) the respondent’s grant of cancellation of removal in prior removal proceedings precluded consideration of his drug possession conviction”, Id. at 835, in the subsequent removal proceedings. Id. Section 101(a)(13)(C)(v) provides

an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a).

INA §101(a)(13)(C)(v). However, the BIA reversed the Immigration Judge holding

that section 101(a)(13)(C)(v) is inapposite to the situation of a lawful permanent resident, such as the respondent, who was granted cancellation of removal after the commission of an offense identified in section 212(a) of the Act and later seeks to apply for adjustment of status in new removal proceedings after being found removable.Id. at 835. The BIA concluded “the purpose of section 101(a)(13)(C) is to regulate the circumstances under which returning lawful permanent residents may reenter the United States, upon inspection, without being classified as applicants for admission.” Id. citing Matter of Collado, 21 I&N Dec. 1061, 1065 (BIA 1998). As such, under INA §101(a)(13)(C)(v) “a lawful permanent resident who has committed one of the specified offenses is considered to be seeking admission upon return from a trip abroad, unless he or she received a waiver under section 212(h) or a grant of cancellation of removal under section 240A(a) after the offense was committed.” Id. When returning from a trip abroad, “a returning lawful permanent resident does not bear the burden to prove his or her admissibility,” Id. at 836, but “rather, the DHS bears the burden to establish by clear and convincing evidence that one of the six “exceptions” clauses in section 101(a)(13)(C) applies.” Id.

To the contrary, when an alien seeks adjustment of status, whether already a lawful permanent resident or not, he or she bears the burden of establishing the he or she meets the applicable eligibility requirements. Id. See also INA §240(c)(4)(A)(i) and INA §245(a). An alien seeking adjustment of status is also considered an applicant for admission. See Matter of Koljenovic, 25 I&N Dec. 219, 221 (BIA 2010). The BIA held “because these statutory provisions address different situations, section 101(a)(13)(C), which relates to aliens seeking admission at a port of entry, is not applicable to aliens who are already in the United States applying for adjustment of status.” Id. As such, the BIA concluded “although the respondent would not be considered an applicant for admission because he was granted cancellation of removal with respect to his drug conviction, section 101(a)(13)(C)(v) does not prevent his conviction from rendering him inadmissible for purposes of adjustment of status.” Id. at 836-837. The purpose of INA §101(a)(13)(C)(v) was to allow an alien granted cancellation of removal or an INA §212(h) waiver the ability to travel abroad without fear he or she would face removal proceedings upon return. However, the BIA held that INA §101(a)(13)(C)(v) “has no effect on the burden of proof requirements of section 245(a) of the Act.” Id. at 837.

The BIA also found the Immigration Judge’s grant of relief “contradict[ed] the rule that a waiver of inadmissibility or deportability waives only the ground charged, but not the underlying basis for removability, which in this case is the respondent’s drug conviction.” Id. See also Matter of Balderas, 20 I&N Dec. 389 (BIA 1991). As such, the alien’s prior “drug conviction can still have immigration consequences even though he was granted cancellation of removal in prior immigration proceedings premised on that conviction.” Id. Thus, the BIA found the alien’s prior “drug possession conviction clearly renders him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, so he is not statutorily eligible for adjustment of status and a section 212(h) waiver is not available to the respondent because his conviction related to possession of crack cocaine.” Id. The Immigration Judge’s grant of relief from removal was reversed and the alien was ordered removed from the United States.