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Interim Decision #3749

Matter of E. W. RODRIGUEZ, Respondent

Decided May 2, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In removal proceedings arising within the jurisdictions of the United States Courts

of Appeals for the Fourth, Fifth, and Eleventh Circuits, an aggravated felony conviction

disqualifies an alien from relief under section 212(h) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(h) (2006), only if the conviction occurred after the alien was

admitted to the United States as a lawful permanent resident following inspection

at a port of entry. Bracamontes v. Holder, Nos. 10-2033, 10-2280, 2012 WL 1037479

(4th Cir. Mar. 29, 2012); Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier

v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section

212(h) relief is unavailable to any alien who has been convicted of an aggravated felony

after acquiring lawful permanent resident status, without regard to the manner in which

such status was acquired. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010),

reaffirmed.

FOR RESPONDENT: Anne E. Kennedy, Esquire, Houston, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY: Roslyn Gonzalez, Assistant

Chief Counsel

BEFORE: Board Panel: GUENDELSBERGER and ADKINS-BLANCH, Board Members.

Dissenting Opinion: PAULEY, Board Member.

GUENDELSBERGER, Board Member:

In a decision dated May 27, 2011, an Immigration Judge found the

respondent removable under section 237(a)(2)(A)(iii) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted

of an aggravated felony, determined that he was ineligible for a waiver

of inadmissibility under section 212(h)(1)(B) of the Act, 8 U.S.C.

§ 1182(h)(1)(B) (2006), and ordered him removed from the United States.

On October 11, 2011, we dismissed the respondent’s appeal from that

decision. The respondent has filed a timely motion to reconsider pursuant

to section 240(c)(6) of the Act, 8 U.S.C. § 1229a(c)(6) (2006). In his motion,

the respondent argues that our prior decision was erroneous because it failed

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to follow controlling circuit precedent regarding his eligibility for a waiver

of inadmissibility under section 212(h)(1)(B). The motion to reconsider will

be granted and the record will be remanded for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of El Salvador who entered the

United States without inspection on December 25, 1981. His status was

adjusted to that of a lawful permanent resident on March 8, 1989, pursuant

to the “legalization” program in section 245A of the Act, 8 U.S.C. § 1255a

(1988).1 On December 17, 2007, the respondent was convicted of bank fraud

in violation of 18 U.S.C. § 1344 (2006). The respondent has conceded

removability, so there is no dispute that his conviction renders him removable

as an alien convicted of an aggravated felony. Accordingly, the only issue

before us is whether the respondent has established that he is eligible for relief

from removal, as required by section 240(c)(4)(A) of the Act.

II. ANALYSIS

The respondent seeks adjustment of status, a form of relief that can only

be granted to an alien who has been “inspected and admitted or paroled”

into the United States and who demonstrates, among other things, that

he is “admissible to the United States for permanent residence.” Section

245(a) of the Act, 8 U.S.C. § 1255(a) (2006). The respondent does not

presently satisfy the “admissibility” requirement for adjustment, however,

because his bank fraud conviction renders him inadmissible under section

212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime involving moral

turpitude. To overcome his inadmissibility and qualify for adjustment

of status, the respondent needs a waiver under section 212(h)(1)(B) of the Act.

See Matter of Parodi, 17 I&N Dec. 608, 611 (BIA 1980). To qualify for this

waiver, the respondent must establish, inter alia, that a “denial of admission”

would result in extreme hardship to certain relatives and that he deserves

a favorable exercise of discretion. Section 212(h)(1)(B) of the Act; see also

Matter of Mendez, 21 I&N Dec. 296 (BIA 1996).

1

Section 245A of the Act, which was codified pursuant to section 201 of the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3394, authorized the

Attorney General to confer lawful permanent resident status on individuals who had been

unlawfully present in the United States for a continuous period beginning before January 1,

1982.

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Interim Decision #3749

A. Section 212(h) Aggravated Felony Bar

According to the Immigration Judge, the respondent is ineligible

for a section 212(h)(1)(B) waiver—and by extension adjustment

of status—because he was convicted of an aggravated felony after having been

admitted to lawful permanent residence. In support of that determination, the

Immigration Judge relied on the penultimate sentence of the undesignated

paragraph appearing at the end of section 212(h), which states as follows,

in pertinent part:

No waiver shall be provided 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. . . .2

In his motion to reconsider, the respondent argues, as he did on appeal,

that the above-quoted “aggravated felony bar” does not apply to him because

he was never “admitted to the United States as an alien lawfully admitted

for permanent residence,” and that the Immigration Judge’s decision to the

contrary was invalid because it conflicted with the decision of the

United States Court of Appeals for the Fifth Circuit in Martinez v. Mukasey,

519 F.3d 532 (5th Cir. 2008). In Martinez, the Fifth Circuit reviewed

a decision in which the Board applied the aggravated felony bar to deny

section 212(h) relief to an individual who had originally been admitted to the

United States as a nonimmigrant but who had sustained an aggravated felony

conviction after adjusting to lawful permanent resident status. The Martinez

court reversed our denial of relief, holding that the statutory phrase “an alien

who has previously been admitted to the United States as an alien lawfully

admitted for permanent residence” was unambiguous and referred exclusively

to individuals who had lawfully entered the United States as permanent

residents after inspection at a port of entry, not to aliens who had acquired

lawful permanent residence through adjustment of status from within the

United States after entry. Id. at 542-46. Reasoning by negative inference, the

Martinez court held that “for aliens who adjust post-entry to LPR status,

§ 212(h)’s plain language demonstrates unambiguously Congress’ intent not

to bar them from seeking a waiver of inadmissibility.” Id. at 546.

In our decision dismissing the respondent’s appeal, we acknowledged

Martinez v. Mukasey but concluded that it was distinguishable on its facts

2

This so-called “aggravated felony bar” was codified by section 348(a) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.

104-208, 110 Stat. 3009-546, 3009-639.

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Interim Decision #3749

because it involved an alien who had adjusted to lawful permanent resident

status after having been admitted as a nonimmigrant at a port of entry, whereas

the respondent had adjusted status under the legalization program without ever

having previously been admitted. Since the respondent had adjusted to lawful

permanent resident status without a prior admission, we concluded that his

case was controlled by Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010),

in which we distinguished Martinez as follows:

The respondent cites Martinez v. Mukasey to support his claim that he is eligible

for a waiver under section 212(h) of the Act. In that case, the alien was admitted after

inspection as a nonimmigrant visitor and subsequently adjusted his status to that

of a lawful permanent resident under section 245A of the Act. The . . .

Fifth Circuit . . . held that “for aliens who adjust post-entry to LPR status, § 212(h)’s

plain language demonstrates unambiguously Congress’ intent not to bar them from

seeking a waiver of inadmissibility.” However, Martinez did not consider whether

the same rule would apply in a case like the respondent’s where the alien was not

previously admitted. Indeed, if we were to literally apply the Fifth Circuit’s holding

to this case, the respondent would have no admission date at all. Given that the Fifth

Circuit did not have to confront the factual scenario presented here, we are not

persuaded by respondent’s contention that Martinez should control.

Id. at 223 (citations omitted).3

In his motion to reconsider, the respondent maintains that Martinez is not

meaningfully distinguishable because the Fifth Circuit’s central holding—that

the section 212(h) aggravated felony bar applies only to those who have been

lawfully admitted as permanent residents at a port of entry—clearly inures

to the benefit of any alien who (like himself) acquired lawful permanent

resident status without admission. In further support of his argument, the

respondent invokes the Eleventh Circuit’s recent decision in Lanier v. U.S.

Attorney General, 631 F.3d 1363 (11th Cir. 2011), which rejected Koljenovic

and applied the rationale of Martinez in a factual setting virtually identical

to that presented here. See also Bracamontes v. Holder, Nos. 10-2033,

10-2280, 2012 WL 1037479 (4th Cir. Mar. 29, 2012) (following Martinez and

Lanier and holding that an alien convicted of an aggravated felony after

adjusting to lawful permanent resident status is not ineligible for section

212(h) relief). Finally, the respondent accurately points out that the Board

3

In Matter of Koljenovic, we interpreted the phrase “an alien who has previously been

admitted to the United States as an alien lawfully admitted for permanent residence”

in connection with the statutory requirement that a lawful permanent resident must show

7 years of continuous lawful residence prior to the commencement of removal proceedings.

Although this case involves an aggravated felony conviction rather than the continuous

lawful residence requirement, the operative statutory phrase is the same in both cases.

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has issued inconsistent unpublished decisions in the wake of Martinez and

Koljenovic, sowing confusion in the Immigration Courts. Under the

circumstances, we agree with the respondent that reconsideration

is appropriate.

B. Deference to Martinez v. Mukasey

We acknowledge at the outset that Martinez v. Mukasey, 519 F.3d 532,

is controlling precedent in removal proceedings arising within the Fifth

Circuit. We respectfully disagree with the Martinez court’s interpretation

of the statute, but we are not free to construe the statute differently

in Fifth Circuit cases because the Martinez court found the language of section

212(h) to be unambiguous. See Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) (holding that a court’s prior judicial

construction of a statute trumps a subsequent agency construction that

is otherwise entitled to deference under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), where the prior court

decision held that its construction followed from the unambiguous terms of the

statute and thus left no room for agency discretion). Because Bracamontes

v. Holder, 2012 WL 1037479, and Lanier v. U.S. Attorney General, 631 F.3d

1363, also found section 212(h) to be unambiguous, we likewise conclude that

those decisions are binding precedent in removal proceedings arising within

the Fourth and Eleventh Circuits, respectively.

Although the respondent’s case is factually distinguishable from Martinez

because he was never “admitted” to the United States, the breadth of the

Fifth Circuit’s holding persuades us that this factual distinction does not justify

a different legal outcome. In the Martinez court’s view, the section 212(h)

aggravated felony bar applies only if the applicant was admitted as a lawful

permanent resident at the border, but not if he was merely admitted to lawful

permanent resident status. Since the respondent was not lawfully admitted

to the United States as a lawful permanent resident following inspection

at a port of entry, Martinez dictates that the aggravated felony bar

is no impediment to his eligibility for section 212(h) relief.

In light of the foregoing, we will grant the respondent’s motion

to reconsider and remand the record to the Immigration Judge for further

proceedings regarding his applications for relief from removal.

C. Continued Adherence to Matter of Koljenovic

Although Immigration Judges and the Board are obliged to follow

Martinez, Lanier, and Bracamontes in removal proceedings arising within the

relevant circuits, we respectfully decline to follow those decisions

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in proceedings arising elsewhere. We conclude—for reasons already stated

in Matter of Koljenovic, 25 I&N Dec. at 220-23—that the language of section

212(h) is ambiguous when understood in the context of the statute taken

as a whole. We also hold that the proper resolution of that ambiguity

is to interpret the statute as barring relief for any alien who has been convicted

of an aggravated felony after acquiring lawful permanent resident status,

without regard to the manner in which such status was acquired.

Matter of Koljenovic is one of a series of precedents in which the Board

has grappled with whether (or when) the statutory terms “admitted” and

“admission” should be construed to include a grant of adjustment of status.

While we have acknowledged that adjustment of status does not fit within the

statutory definition of the term “admission” set forth at section 101(a)(13)(A)

of the Act, we have nevertheless been constrained to treat adjustment

as an admission in order to preserve the coherence of the statutory scheme and

avoid absurdities. E.g., Matter of Espinosa Guillot, 25 I&N Dec. 653, 655

(BIA 2011); Matter of Alyazji, 25 I&N Dec. 397, 399, 403 (BIA 2011); Matter

of Lemus, 24 I&N Dec. 373, 377 (BIA 2007); Matter of Rodarte, 23 I&N Dec.

905, 908 (BIA 2006); Matter of Shanu, 23 I&N Dec. 754, 757 (BIA 2005),

vacated sub nom. Aremu v. Dep’t of Homeland Sec., 450 F.3d 578 (4th Cir.

2006), and overruled in part by Matter of Alyazji, 25 I&N Dec. 397; Matter

of Rosas, 22 I&N Dec. 616, 621, 623 (BIA 1999).

Our prior decisions have explained at some length that refusal to treat

adjustment of status as an admission can result in serious incongruities, and

it is unnecessary to repeat that discussion here. We respectfully conclude that

the language of the statute does not compel such an interpretation.

III. CONCLUSION

In conclusion, deference to Fifth Circuit precedent requires us to reconsider

our prior decision in this matter and to conclude that the respondent is not

ineligible for section 212(h) relief as a result of his aggravated felony

conviction. Accordingly, we will grant the respondent’s motion to reconsider,

sustain his appeal, and remand the record to the Immigration Judge for further

proceedings.

In jurisdictions where controlling circuit law does not forbid us from doing

so, however, we will continue to hold—in accordance with the reasoning

underlying our own precedent in Matter of Koljenovic, 25 I&N Dec. 219, that

section 212(h) relief is unavailable to any alien who has been convicted

of an aggravated felony after acquiring lawful permanent resident status.

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ORDER: The respondent’s motion to reconsider is granted.

FURTHER ORDER: Upon reconsideration, the respondent’s appeal

is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge

for further proceedings consistent with the foregoing opinion and for the entry

of a new decision.

DISSENTING OPINION: Roger A. Pauley, Board Member

I respectfully dissent and would apply Matter of Koljenovic, 25 I&N Dec.

219 (BIA 2010), to the facts of this case because they present a scenario not

addressed in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008).

790