Issues: "Hardship waiver" under the Immigration and Nationality Act (the Act); 8 USC § 1182(h); Matter of Rodriguez (BIA); Whether an immigrant has been "admitted" into the country; § 1101(a)(13)(A); Papazoglou v. Holder (7th Cir.); "Lawfully admitted for permanent residence"; § 1101(a)(20); Negrete-Ramirez v. Holder (9th Cir.); Zhang v. Mukasey; Roberts v. Holder (8th Cir.); §§ 1255(a) & (b); §§ 1151(c), 1186a, & 1186b; Board of Immigration Appeals (BIA)
Court: U.S. Court of Appeals Sixth Circuit
Case Name: Stanovsek v. Holder
e-Journal Number: 58197
Judge(s): Rogers and Steeh; Dissent – Boggs
Even though an alien who is initially admitted to the United States as an immigrant and is later subject to removal for committing an aggravated felony is ineligible for a "hardship waiver" under the Act, "the bar cannot be read to extend to aliens who were lawfully admitted first as nonimmigrants and who later adjusted to immigrant status." The BIA erred by concluding otherwise. Petitioner was admitted on a nonimmigrant visitor visa and later adjusted status to lawful permanent resident by virtue of his marriage to a United States citizen. The statute unambiguously provides that "a § 212(h) waiver is precluded after a conviction of an aggravated felony only when the removable person had attained the status of lawful permanent resident at the time of his or her lawful entry into the United States." The "Act defines 'admitted' and 'admission' to mean 'with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'" The court declined to "stretch" the language "to bar an alien who did not enter as an alien with immigrant status, but who lawfully entered as a non-immigrant and later adjusted status." The court noted that "a post-entry adjustment of status differs in its significance between individuals who had previously entered the U.S. legally, and those who had first entered the United States illegally and are only lawfully in the United Status after completing an adjustment of status." The "date of 'admission' is the date of the alien's lawful entry.'" The court noted that its conclusion comported with the holdings of the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits that the text of § 1182(h) is unambiguous and "'the bar to seeking a § 212(h) waiver of inadmissibility does not apply to persons who adjusted to lawful permanent resident status after having entered into the United States by inspection." The court "appl[ied] the clear meaning of the Act," granted the petition for review, and remanded the case to the BIA.
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