Waiver Wire #3
News and Notes in the World of Waivers #3
On February 4, 2011 the Eleventh Circuit issued a critical federal court decision with respect the 212(h) bar to relief for aggravated felons. Certain people are barred from seeking a discretionary waiver under 212(h), which states in relevant part:
No waiver shall be granted under this subsection in the case of an alien who
has previously been admitted to the United States as an alien lawfully admitted
for permanent residence if . . . since the date of such admission the alien has been
convicted of an aggravated felony . . . .
INA §212(h). In Lanier v. U.S. Attorney General, _F.3d_ (11th Cir. February 4, 2011), the Court analyzed whether adjusting to lawful permanent residence status while living in the U.S. qualifies as “having previously been admitted to the United States as an alien lawfully admitted for permanent residence” so as to trigger the 212(h) to bar relief based on the commission of an aggravated felony. The Court followed Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), and held that the 212(h) bar to relief does not apply to persons who adjust to LPR status while already living in the U.S. The term “admitted” has expressly been defined by Congress as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” This definition is limited, and does not encompass a post-entry adjustment of status, even if the applicant has entered EWI. Thus, when the statutory provision is read as a whole, the plain language of§ 212(h) provides that a person must have physically entered the United States after inspection, as a lawful permanent resident in order to have “previously been admitted to the United States as an alien lawfully admitted for permanent residence.” Based on this unambiguous language, the court found that the statutory bar to relief does not apply to people who, like Lanier, adjusted to lawful permanent resident status while already living in the United States.
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