Three circuit courts, the Fourth, Fifth, and Eleventh, have held that the unambiguous language of section 212(h) mandates that conviction of an aggravated felony only disqualifies a permanent resident from a 212(h) waiver if the conviction occurs after admission of the alien as a permanent resident after inspection at a port of entry. In this decision, the Board decided to follow that precedent only within the jurisdiction of those courts. In other circuits, the Board will adhere to its previous decision in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), which held that an alien who enters without inspection and then adjusts status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” for purposes of the 212(h) aggravated felony bar.
An Na Peng v. Holder
This decision extends the Supreme Court's decision in INS v. St. Cyr, which held that permanent residents who pled guilty to a removable offense prior to Congress' enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996 remained eligible for discretionary relief from removal under former section 212(c) even though IIRAIRA repealed that form of relief. Although St. Cyr concerned a resident who pled guilty, Peng extends that holding to permanent residents who were convicted at trial of a crime involving moral turpitude who can plausibly argue they relied on the availability of 212(c). The decision rejected, however, Peng's argument that IIRAIRA's creation of a 7 year residence requirement for relief from removal under 212(h) was impermissibly retroactive.
Here, Peng could plausibly argue reliance on the existing state of the pre-IIRAIRA law when she decided to go to trial. A guilty plea to the charged offense (conspiracy to defraud the former INS, 18 U.S.C. § 371 (1995)) would result in no immigration benefit. She would be deportable no matter whether she pled guilty or was convicted at trial. Likewise, she would be eligible for 212(c) as a discretionary form of relief from deportation no matter whether she pled guilty or was convicted at trial. However, the option of proceeding to trial offered the benefit of the possibility of acquittal. In choosing that option, she plausibly could be said to rely on the availability of 212(c) even if the jury convicted her and the judge sentenced her to the maximum potential sentence. The maximum potential sentence was 5 years, and the aggravated felony definition at the time required a sentence to more than 5 years (an aggravated felony would have disqualified her from 212(c)).
The court contrasted this situation with that of a resident charged with an offense that could be an aggravated felony depending on the sentence imposed by the judge. Since it would leave the sentence in the hands of the judge and thus leave the question of whether it was an aggravated felony in the hands of the judge, a decision to go to trial would preclude a showing of plausible reliance.
Although the court found the repeal of 212(c) impermissibly retroactive because Peng plausibly could have relied on 212(c) as relief from removal, it dismissed without much explanation her argument that IIRAIRA's changes to 212(h) were not impermissibly retroactive. Adjustment of status with a waiver under 212(h) was another form of discretionary relief that was available to Peng when she decided to go to trial in her case. She could have relied on it to the same extent she relied on 212(c). Congress, however, later imposed a requirement of 7 years of continuous residence prior to the initiation of removal proceedings for a permanent resident to be eligible for 212(h). That disqualified Peng from something she plausibly could have relied upon, so it is not apparent why the court would reach a different conclusion. The brief treatment in the opinion mentions that she already had permanent resident status at the time she went to trial and seems to suggest that makes a difference. Perhaps the panel did not understand that adjustment with a 212(h) waiver is a long-recognized form of discretionary relief not just for non-residents, but also for residents like Peng.
Finally, the court rejected Peng's argument that imposing a 7 year continuous residence requirement on aliens previously granted permanent resident status, but not on those who have not previously held permanent resident status, violates equal protection. It cited Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002) for the proposition that residents have greater rights so Congress may rationally hold them to a higher standard.
Matter of Roberto Carlos Bustamante
The Board held that grant of an INA 212(h) waiver for an offense listed under section 212(a)(2) would not remove the bar to section 240A(b) cancellation of removal for a non-permanent resident who has a conviction for a 212(a)(2) offense.
The Board reached this conclusion based on the statutory language of 240A(b), which requires that the noncitizen “has not been convicted of an offense under section 212(a)(2).” The Board determined that this language referred to actual convictions, not to whether an applicant was "inadmissible" for such a conviction. In contrast, other portions of the Act (including VAWA cancellation) refer to "inadmissibility" or "deportability." Since 212(h) waives only inadmissibility, but does not affect the existence of the conviction, it does not eliminate a conviction for purposes of eligibility for cancellation.
Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3722.pdf