Monday, May 18, 2015

Matter of J—H—J— Means Likely 212(h) Eligibility for Refugees as Well

The Board of Immigration Appeals issued an important decision last week that likely provides potential deportation relief to lawful permanent residents who initially entered as refugees and subsequently commit aggravated felonies. In Matter of J—H—J—, 26 I&N Dec. 563 (BIA 2015), the BIA held that a noncitizen who did not enter the United States as a lawful permanent resident and later adjusts status to lawful permanent resident status (LPR) can apply for INA § 212(h) relief. Under that statute, an LPR aggravated felon “who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence” can request a waiver of the deportation ground if removal “would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter.”

In Matter of R—H—J—, the respondent initially entered the United States without inspection, then applied for and was granted asylum. He was later convicted of first degree assault, an aggravated felony. The Immigration Judge denied  the application for a 212(h) waiver following old BIA precedent. However, the BIA reversed its old position and announced its new policy: INA § 212(h) only precludes those who “entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony.” Since the respondent did not enter as a lawful permanent resident, instead adjusting to that status after entry, he was eligible to apply for a waiver.

This is a highly technical distinction that is important to those who have entered as refugees. Those who have entered as refugees, for example from Cambodia, do not enter the country as lawful permanent residents. Under INA § 209, they later adjust their status to lawful permanent resident status. Thus, a Cambodian who becomes deportable because of an aggravated felony conviction would appear to fall within the holding of Matter of R—H—J—. This is important, because in 1996, the immigration laws were amended, eliminating eligibility for INA § 212(c) relief (now cancellation of removal) for anyone convicted of an aggravated felony.

There is one troubling 212(h) case that was decided by the Eighth Circuit Court of Appeals a few years ago. In Spacek v. Holder, 688 F.3d 536 (8th Cir. 2012), the federal court held that a 212(h) waiver was not available to a person who first entered as a refugee then later adjusted status to lawful permanent residence. The Eighth Circuit based its decision on the fact that at the time of adjustment of status, the person gained “admission to the United States,” and therefore was not eligible for 212(h) relief. In my view, the Eighth Circuit decision is no longer viable after the BiA’s decision which focuses on whether the person “entered” as a lawful permanent resident, not whether the person gained “admission” as a lawful permanent resident. Again, if you did not enter as a lawful permanent resident, you are eligible for a 212(h) waiver if you later adjust to LPR status. Incidentally, the Eighth Circuit covers Minnesota, Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas.

My interpretation is supported by language in cases such as Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012). In that case, the Fourth Circuit Court of Appeals makes clear that 212(h) is precluded only for those who entered the country as lawful permanent residents, not those who subsequently adjust status to lawful permanent residence. In fact, the BIA reversed its previous position citing nine federal courts of appeals decisions that did not agree with the BIA’s old position. The only court of appeals that had followed the old BIA position was—you guessed it—the Eighth Circuit. In my view, the BIA's focus on entry makes the 8th Circuit's Spacek decision no longer relevant.

Remember, however, the grant of a 212(h) waiver is not automatic. Extreme hardship to a statutory relative (cited above) must still be established. Also, the waiver is not available to anyone convicted of “murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.” The applicant also must have “lawfully resided continuously in the United States for a period of not less than 7 years.”


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