KANGA

Interim Decision #3424

In re Minette KANGA, Respondent

File A29 296 514 - Raleigh

Decided January 7, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The phrase “ineligible to citizenship” in section 212(a)(8)(A) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(8)(A) (Supp. II 1996), refers only to those aliens who are

barred from naturalization by virtue of their evasion of military service.

(2) An alien convicted of an aggravated felony is not thereby rendered inadmissible under

section 212(a)(8)(A) of the Act as an alien who is permanently “ineligible to citizenship.”

C. Lynn Calder, Esquire, Falmouth, Massachusetts, Thomas Hutchins, Esquire, Alexandria,

Virginia and Mary E. Kramer, Esquire, Miami, Florida, for respondent

George W. Katz, Assistant Regional Counsel, and Grace A. Sease, Assistant District Counsel,

for the Immigration and Naturalization Service

Mary A. Kenney, Esquire, San Antonio, Texas, for amicus curiae1

Before: Board Panel: SCHMIDT, Chairman; SCIALABBA, Vice Chairman; GRANT,

Board Member.

SCIALABBA, Vice Chairman:

In an oral decision dated October 21, 1997, the Immigration Judge

found the respondent deportable pursuant to sections 241(a)(1)(B),

(2)(A)(ii), and (iii) of the Immigration and Nationality Act, 8 U.S.C. §§

1251(a)(1)(B), (2)(A)(ii), and (iii) (1994), as an alien who had remained in

the United States beyond her authorized stay, had been convicted of two or

more crimes involving turpitude, and had been convicted of aggravated

felonies, respectively. The respondent sought to apply for adjustment of sta-

tus under section 245(a) of the Act, 8 U.S.C. § 1255(a) (1994), and a waiv-

1

This Board acknowledges with appreciation the thoughtful arguments raised in amicus

curiae’s brief.

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Interim Decision #3424

er of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h)

(1994). The Immigration Judge entered a decision pretermitting the section

212(h) application, from which the respondent has appealed. Oral argument

was heard in this matter on February 24, 1999. A motion by the Lawyers’

Committee for Civil Rights Under Law of Texas and the National

Immigration Project of the National Lawyers Guild to file an amicus brief

was granted, and that brief has been incorporated into the record of pro-

ceedings. The appeal will be sustained, and the record will be remanded to

the Immigration Judge for further proceedings.

I. BACKGROUND

A. Facts

The respondent, a 34-year-old native and citizen of Sierra Leone, was

admitted to the United States as a student in October 1986. She failed to

maintain her student status after the spring of 1993. The Immigration and

Naturalization Service alleged, and the respondent admitted, that she had

been convicted in North Carolina of a series of criminal offenses, including

withholding a credit card on July 10, 1990; obtaining property by false

information on August 30, 1990; unlawful concealment, to wit: larceny and

worthless checks on August 30, 1990; larceny on August 30, 1990, June 25,

1992, and November 25, 1992; and four counts of forgery on January 13,

1995. The respondent conceded deportability on each of the grounds

charged.2

B. Relief Sought

The respondent is married to a United States citizen. She and her hus-

band have three United States citizen children. During the pendency of pro-

ceedings before the Immigration Judge, the respondent’s husband filed a

visa petition on her behalf, which was approved by the Service. The respon-

dent sought to apply for adjustment of status under section 245 of the Act.

See generally Matter of Alarcon, 20 I&N Dec. 557, 559 (BIA 1992) (setting

forth statutory eligibility requirements for adjustment of status, including

lawful admission to the United States, filing an application, eligibility for

and availability of an immigrant visa, and admissibility to the United

2

We note that the respondent’s theft offenses, for which the sentence was at least 1 year,

and her forgery offenses, for which she was sentenced to a term of 10 years, are aggravated

felonies under sections 101(a)(43)(G) and (R) of the Act, 8 U.S.C. §§ 1101(a)(43)(G) and (R)

(Supp. II 1996).

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States). Because the respondent is inadmissible to the United States as a

result of her convictions, she requires a waiver of the grounds of inadmissi-

bility under section 212(h) of the Act in order to qualify for adjustment of

status as the spouse of a United States citizen. See Matter of Mendez, 21

I&N Dec. 296 (BIA 1996); see also Matter of Michel, 21 I&N Dec. 1101

(BIA 1998) (holding that an alien who has not previously been admitted to

the United States as a lawful permanent resident and who meets the section

212(h) eligibility requirements remains statutorily eligible for a waiver of

inadmissibility, despite an aggravated felony conviction).3

C. Immigration Judge’s Decision

The Immigration Judge found the respondent deportable as charged

based on her admissions. He pretermitted the respondent’s application for a

section 212(h) waiver of inadmissibility, which was the necessary predicate

to her eligibility to apply for adjustment of status.

The Immigration Judge accepted the Service’s argument that a section

212(h) waiver would not eliminate the respondent’s inadmissibility, in that

she would remain inadmissible as an alien “ineligible to citizenship” under

section 212(a)(8)(A) of the Act, 8 U.S.C. § 1182(a)(8)(A) (Supp. II 1996),

which cannot be waived.

II. IMMIGRATION AND NATURALIZATION SERVICE’S POSITION

The Service contends that, because the section 212(h) waiver would not

operate to waive the ground of inadmissibility under section 212(a)(8)(A)

of the Act for aliens who are “permanently ineligible to citizenship,” the

respondent would remain inadmissible to the United States and therefore

ineligible to adjust status.

A. Grounds of Inadmissibility

The precursor to section 212(a)(8) of the Act was enacted in 1952 as

3

Section 212(h) of the Act waives inadmissibility for, inter alia, conviction of crimes

involving moral turpitude and multiple criminal convictions. See sections 212(a)(2)(A)(i)(I),

(B) of the Act, 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (B) (Supp. II 1996). However, because the

aggravated felony ground of deportability does not have an analogue among the criminal

grounds of inadmissibility under section 212(a)(2), an alien convicted of an aggravated felony

is not inadmissible as a result of that conviction and, accordingly, requires no waiver on that

basis. See, e.g., Matter of Michel, supra; Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993).

Interim Decision #3424

section 212(a)(22) of the Act, 8 U.S.C. § 1182(a)(22) (1952). Former section

212(a)(22) provided that the following classes of aliens were excludable:

Aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmi-

grants; or persons who have departed from or who have remained outside the United

States to avoid or evade training or service in the armed forces in time of war or a peri-

od declared by the President to be a national emergency, except aliens who were at the

time of such departure nonimmigrant aliens and who seek to reenter the United States

as nonimmigrants.

Legal precedent interpreting former section 212(a)(22) and the legislative

history regarding its enactment confirm that, as a ground of inadmissibility,

this section pertained to alien military service evaders. See Matter of Martin-

Arencibia, 13 I&N Dec. 166, 167 (R.C. 1969) (holding that an adjustment

applicant’s ineligibility for citizenship resulting from his inability to estab-

lish good moral character did not render him inadmissible under section

212(a)(22), which was “‘confined in its reference to such aliens as draft

evaders, avoiders, or deserters’” (quoting 1952 U.S.C.C.A.N. 1653, 1684)).

Congress amended former section 212(a)(22) in 1990, recodifying it as

section 212(a)(8), dividing it into subsections (A) and (B), and adding the

word “permanently” before the phrase “ineligible to citizenship.” See

Immigration Act of 1990, Pub. L. No. 101-649, § 601(a), 104 Stat. 4978,

5074 (“1990 amendments”). The legislative history relating to the

Immigration Act of 1990 does not address the amendments to former sec-

tion 212(a)(22).

Section 212(a)(8) of the Act currently provides:

(A) IN GENERAL.—Any immigrant who is permanently ineligible to citizenship is

inadmissible.

(B) DRAFT EVADERS.—Any person who has departed from or who has remained

outside the United States to avoid or evade training or service in the armed forces in

time of war or a period declared by the President to be a national emergency is inad-

missible, except that this subparagraph shall not apply to an alien who at the time of

such departure was a nonimmigrant and who is seeking to reenter the United States as

a nonimmigrant.

The Service argues in its brief that the amendment of former section

212(a)(22) in 1990 eliminated the nexus to military service with respect to

section 212(a)(8)(A). Under the Service’s interpretation, an alien who is

permanently “ineligible to citizenship” for any reason is inadmissible.

B. “Ineligible to Citizenship”

The Service combines several statutory provisions to conclude that an

alien convicted of an aggravated felony is thereby permanently “ineligible

to citizenship” under section 212(a)(8)(A) of the Act. This analysis begins

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with the proposition that an alien who cannot establish good moral charac-

ter within the meaning of the Act is not eligible to naturalize.

Section 316(a) of the Act, 8 U.S.C. § 1427(a) (Supp. II 1996), which

sets forth the statutory requirements for aliens to become naturalized United

States citizens, provides, in pertinent part, as follows:

No person, except as otherwise provided in this title [subchapter], shall be naturalized,

unless such applicant . . . (3) during all the periods referred to in this subsection has

been and still is a person of good moral character . . . .

Section 101(f)(8) of the Act, 8 U.S.C. § 1101(f)(8) (1994), precludes a

finding of good moral character for “one who at any time has been convicted

of an aggravated felony (as defined in subsection (a)(43)).” Thus, aliens, such

as the respondent, who have been convicted of an aggravated felony cannot

establish good moral character under section 101(f)(8) of the Act.

The Service links the ineligibility of aggravated felons to be naturalized

under section 316(a)(3) of the Act to the bar to inadmissibility under sec-

tion 212(a)(8) through the statutory definition of the term “ineligible to cit-

izenship” at section 101(a)(19) of the Act, 8 U.S.C. § 1101(a)(19) (1994),

which states:

The term “ineligible to citizenship,” when used in reference to any individual,

means, notwithstanding the provisions of any treaty relating to military service, an

individual who is, or was at any time, permanently debarred from becoming a citizen

of the United States under section 3(a) of the Selective Training and Service Act of

1940, as amended (54 Stat. 885; 55 Stat. 844), or under section 4(a) of the Selective

Service Act of 1948, as amended (62 Stat. 605; 65 Stat. 76) 50 U.S.C. App. 454, or

under any section of this Act, or any other Act, or under any law amendatory of, sup-

plementary to, or in substitution for, any of such sections or Acts. (Emphasis added.)

Because this section defines a person who is “ineligible to citizenship”

as anyone who is barred from becoming a citizen “under any section of this

Act, or any other Act,” the Service contends that an alien barred from natu-

ralization as a result of a conviction for an aggravated felony falls within the

statutory definition of one who is “ineligible to citizenship.”

III. RESPONDENT’S POSITION

The respondent relies on the same statutory provisions to reach the

opposite conclusion. The respondent supports her argument with case law

and legislative history. These sources reflect that the phrase “ineligible to

citizenship” in section 101(a)(19) of the Act, as well as in other sections of

the Act, has been confined solely to the context of military service evasion,

including draft evaders or avoiders and deserters. The respondent asserts

that these provisions must be understood in the context through which they

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evolved, within the statute as a whole, and in accordance with case law

interpreting the statutory predecessor to section 212(a)(8)(A) of the Act.

The respondent begins her analysis by looking at the phrase “ineligible

to citizenship” within the meaning of the Act. According to the respondent,

the phrase “ineligible to citizenship” refers to sections 314 and 315 of the

Act, 8 U.S.C. §§ 1425 and 1426 (1994). Section 314 covers persons who

have evaded military service during a war through desertion from active

duty, departure from the jurisdiction of enlistment after enrolling, or depar-

ture from the United States with the intent to avoid military service. Under

section 314, such a person is “permanently ineligible to become a citizen of

the United States.”

Section 315 of the Act applies to aliens who have sought an exemption

from military service based on alienage. Under section 315(a), any alien

who seeks the exemption on this basis “shall be permanently ineligible to

become a citizen of the United States.”

The respondent asserts that, under section 212(a)(8)(B), aliens who

have evaded the draft by departing from or remaining outside the United

States to avoid military service during a time of war, as set forth in section

314 of the Act, are “permanently ineligible to citizenship.” According to the

respondent, section 212(a)(8)(A) applies to the other categories of military

service evaders under sections 314 and 315 of the Act, i.e., aliens who have

deserted from active duty during a war, departed their local jurisdiction after

enlistment, or applied for a military service exemption based on alienage.

The respondent notes that the phrase “ineligible to citizenship,” as

defined in section 101(a)(19) of the Act, antedates the aggravated felony

provisions, which first appeared in the Act in 1988. She therefore argues

that the phrase was not designed to comprehend the aggravated felony def-

inition. With the exception of a minor technical revision, section 101(a)(19)

has remained the same since its enactment in 1952 and has not been

expanded in scope. The legislative history pertaining to the enactment of

section 101(a)(19) and case law interpreting this provision make clear that

its applicability is limited to the military service arena. See Matter of

Martin-Arencibia, supra.

As the respondent points out, the aggravated felony provisions, on the

other hand, have been extensively amended since 1988. Yet Congress, after

establishing an aggravated felony ground of deportability and thereafter

modifying the aggravated felony definition in 1990, 1991, 1994, and 1996,

has never established a criminal ground of inadmissibility for aggravated

felons under section 212(a)(2) of the Act. The respondent observes that any

prohibition against admissibility for aggravated felons would logically be

codified with the criminal grounds of inadmissibility.

The respondent interprets section 212(a)(8) to be a ground of inadmis-

sibility for military service evaders, as defined in sections 314 and 315 of

the Act, which proscribe naturalization for these aliens. She does not attrib-

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ute any substantive significance to the 1990 amendments that would alter

the traditional and settled interpretation of the phrase “ineligible to citizen-

ship.”

Finally, the respondent notes that our recent precedent decisions recog-

nize that aliens who are not lawful permanent residents and who would oth-

erwise qualify to apply for a section 212(h) waiver are not ineligible on the

basis of an aggravated felony conviction. Matter of Ayala, 22 I&N Dec. 398

(BIA 1998); Matter of Michel, supra. She asserts that, in order to accept the

Service’s position, we would have to overrule our interpretation of section

212(h) as set forth in these precedent decisions.

IV. ANALYSIS

We agree with the respondent that the legislative and interpretative

underpinnings of sections 101(a)(19), 212(a)(8), 314, and 315 of the Act

support the conclusion that, within the meaning of the Act, the phrase “inel-

igible to citizenship” refers to military service evasion. This conclusion is

buttressed by reference to other statutory provisions that would be rendered

superfluous under the Service’s theory. In particular, the distinction drawn

between lawful permanent residents and aliens who have not been admitted

for lawful permanent residence in section 212(h), as we have interpreted its

recent amendment, would be meaningless were we to adopt the Service’s

position. See Matter of Ayala, supra; Matter of Michel, supra. Moreover,

the Service’s reading would also require us to modify our precedent deci-

sion in Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). Matter

of Fuentes-Campos holds that an alien who is deportable under specified

criminal grounds, including those relating to an aggravated felony, can

apply for a waiver of inadmissibility under section 212(c) of the Act, 8

U.S.C. § 1182(c) (1994). Under Fuentes-Campos, an alien charged with

inadmissibility on the basis of a conviction for a controlled substance vio-

lation that also constitutes an aggravated felony can apply for a section

212(c) waiver of the controlled substance ground of inadmissibility and, if

successful, be admitted to the United States. If we follow the Service’s posi-

tion, however, such an alien could not be admitted because he would remain

inadmissible under section 212(a)(8)(A) of the Act.

Similarly, the provisions relating to the inadmissibility of aliens who

have been removed on aggravated felony grounds under sections

212(a)(9)(A)(i) and (ii) of the Act would be without significance under the

Service’s view. These specify, inter alia, that an alien who has been ordered

removed as an aggravated felon is inadmissible. It is significant that

Congress conditioned the bar to admissibility for an aggravated felony con-

viction upon the alien’s prior removal on that basis. Furthermore, an alien

who has been removed for having been convicted of an aggravated felony

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can obtain a waiver of inadmissibility under section 212(a)(9)(A)(iii) of the

Act by obtaining the consent of the Attorney General.

Were we to accept the Service’s position, these statutory provisions

would be rendered ineffective. In Matter of Michel, supra, we explained

that our interpretation of section 212(h), as it was amended in 1996, derived

from the plain language of that statutory provision. See, e.g., INS v.

Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (stating that the clearest indi-

cator of congressional intent is the plain meaning of the words used in the

statute taken as a whole). Although it does not apply to this respondent, the

plain language of section 212(a)(9)(A) also contemplates the inadmissibil-

ity of an alien who has been previously removed under the aggravated

felony grounds of deportability and clearly provides an exception to inad-

missibility. Yet the Service’s interpretation would render any alien convict-

ed of an aggravated felony, in any posture, inadmissible, without waiver or

exception.

The Service arrives at a plain language result only by weaving togeth-

er several sections from different portions of the statute. While it is

axiomatic that a statute is to be read as a whole, the interpretation that the

Service achieves by combining several sections is strained and circular.

This is particularly true when the logical and direct way for Congress to

achieve the result that the Service urges us to find, by way of statutory

interpretation, would have been to include a conviction for an aggravated

felony among the other criminal grounds of inadmissibility under section

212(a)(2) of the Act. It strains the boundaries of permissible statutory

interpretation to conclude that Congress would have chosen to make this

fundamental change through such indirect means, particularly in the con-

text of the amendments made to the Act in 1996, which included signifi-

cant changes, both to the definition of an aggravated felony and to the

immigration consequences of having been convicted of such an offense.4

Nothing in the legislative history of these amendments indicates such an

intent. Nor should we assume that Congress would so veil a major change

in the law.

Our holding carries forward the historical legislative and judicial

treatment of the term “ineligible to citizenship.” The bars to admission

based on ineligibility for citizenship have always been linked to the pro-

hibitions on naturalization established by sections 314 and 315 of the Act,

4

Two landmark pieces of legislation in 1996 made sweeping changes to the Immigration

and Nationality Act, including expansion of both the aggravated felony definition itself and

the scope of the immigration consequences emanating from an aggravated felony conviction.

See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of

Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”); Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”).

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which prevent alien military service evaders from naturalizing. See, e.g.,

Astrup v. INS, 402 U.S. 509 (1971) (holding that an alien who requests

exemption from military service has relinquished all claims to naturaliza-

tion under section 315 of the Act only when the Government completely

and permanently exempts him from service in the armed forces);

Gramaglia v. United States, 766 F.2d 88 (2d Cir. 1985); Colombo v.

United States, 531 F.2d 943 (9th Cir. 1975); Assi v. United States, 498

F.2d 1064 (5th Cir. 1974).

Relevant case law has consistently discussed section 101(a)(19) of the

Act with respect to military service and with reference to sections 314 and

315 of the Act. See, e.g., Matter of Martin-Arencibia, supra; Matter of Z-

, 6 I&N Dec. 766 (BIA 1955) (holding that an alien who obtained exemp-

tion from military service based on alienage is permanently debarred from

citizenship under section 315 of the Act and also falls within the provi-

sions of sections 101(a)(19) and 212(a)(22) of the Act); Matter of B-M-,

6 I&N Dec. 756 (BIA 1955) (holding that an alien who deserted the armed

forces during the Korean conflict is excludable under section 212(a)(22)

of the Act as an alien “ineligible to citizenship” within the definitions con-

tained in sections 101(a)(19) and 314 of the Act); see also Matter of

Mincheff, 13 I&N Dec. 715 (BIA 1970, 1971) (holding that an alien who

failed to obtain exemption from military service because of alienage is not

inadmissible under section 212(a)(22) because he was not “ineligible to

citizenship” under section 315 of the Act); Matter of Riva, 13 I&N Dec.

268 (BIA 1969) (holding that an alien who departed the United States to

avoid the draft is inadmissible under section 212(a)(22) of the Act). We

note in particular Matter of Martin-Arencibia, supra, where the Service’s

regional commissioner held that a murder conviction did not preclude an

alien from establishing eligibility for adjustment of status because of

inadmissibility under section 212(a)(22). He concluded that the alien was

not “ineligible to citizenship” within the meaning of sections 101(a)(19)

and 212(a)(22) as a result of his permanent inability to establish the req-

uisite good moral character for naturalization. In so holding, the regional

commissioner rejected reasoning similar to that advanced by the Service

in this case.

The decisions cited above were all rendered prior to the amendments to

section 212(a) of the Act brought about by the Immigration Act of 1990.

Nonetheless, we find nothing in the 1990 amendments to persuade us that

Congress altered the longstanding meaning of the phrase “ineligible to cit-

izenship” as conveyed by the statute and interpreted in the case law. Section

212(a)(8) remains consistent with the statutory scheme established to bar

military service evaders from naturalization by excluding such individuals

from the United States.

V. CONCLUSION

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We conclude that the phrase “ineligible to citizenship” in section

212(a)(8)(A) of the Act refers only to those aliens who are barred from nat-

uralization as a result of their military service evasion. We therefore hold

that an alien convicted of an aggravated felony is not thereby rendered inad-

missible under section 212(a)(8)(A) of the Act as an alien who is perma-

nently “ineligible to citizenship.” The respondent’s appeal of the

Immigration Judge’s decision will be sustained, and the record will be

remanded to the Immigration Court for further proceedings on the issues of

the respondent’s eligibility for a waiver of inadmissibility under section

212(h) and for adjustment of status under section 245(a).

ORDER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge’s order of October

21, 1997, is vacated, and the record is remanded to the Immigration Court

for further proceedings consistent with the foregoing opinion.

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