Tuesday, January 21, 2014

Ninth Circuit Extends 212(h) Waivers to Certain LPRs with Aggravated Felonies

From Kathy Brady of the Immigrant Legal Resource Center:

Thanks and congratulations to Michael Mehr and  Rachael Keast, who litigated this case!  

The case is Negrete-Ramirez v. Holder.

For more background on 212(h) and the LPR bar issue discussed below, see "LPR Bars - To Whom Do They Apply?" at www.ilrc.org/crimes (scroll down).  We will be happily updating the article to add the Ninth Circuit to the "good" list!

Summary

INA 212(h) provides that certain LPRs who either were convicted of an aggravated felony, or did not have seven years lawful continuous residence before initiation of removal proceedings, cannot apply for 212(h).

The question has been, to which LPRs do these bars apply?  The convoluted 212(h) language applies it to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence...”  (emphasis added)

Today the Ninth Circuit joined several other circuits to hold that this language means that the bars only apply to LPRs  who were previously admitted at the border as LPRs.  A prior adjustment of status to LPR, without more, does not trigger the bar.

Therefore a person who adjusted status to LPR, and never before has been admitted at the border as an LPR, can apply for 212(h) even if she has been convicted of an aggravated felony or does not have the seven years. 

For example, Ms. Negrete-Ramirez was admitted as a visitor and then adjusted status.  She then was convicted of moral turpitude offenses that also are aggravated felonies.   She then traveled outside the U.S.  Upon her return she was stopped at the border as inadmissible.  She asked to apply for 212(h) waiver of inadmissibility in order to be admitted, and was told that she could not, because her aggravated felony conviction came within the LPR bars.  

The Ninth Circuit joined the Third, Fourth, Fifth, Seventh, and Eleventh Circuits to find that based on the specific statutory language in 212(h), these bars only applied to someone who had made a prior admission.  The court held:

Accordingly, the plain language of § 212(h) unambiguously demonstrates that Negrete-Ramirez's post-entry adjustment of status to an LPR after her admission to the United States as a visitor does not constitute an admission in the context of § 212(h). Only noncitizens who entered into the United States as LPRs are barred from eligibility to apply for the § 212(h) waiver. Negrete-Ramirez is not barred from applying for a § 212(h) waiver.

bh

http://lawprofessors.typepad.com/immigration/2014/01/ninth-circuit-extends-212h-waivers-to-certain-lprs-with-aggravated-felonies.html

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