The Ninth Circuit held that the aggravated felony bar to a 212(h) waiver of inadmissibility does not apply to a permanent resident who was admitted to the U.S. from abroad as something other than a permanent resident and then later adjusted status to permanent residence. It, like all of the other circuit courts to have reviewed the question, found this result compelled by the plain language of the statute. Thus, the petitioner here was not barred from seeking a 212(h) waiver of inadmissibility for her crime involving moral turpitude because she entered on a B-2 visitor visa and then adjusted to permanent resident status.
A person who was admitted on an immigrant visa, however, would not be eligible for 212(h) to waive a later criminal ground of inadmissibility. The court also recognized that an adjustment of status would count for the purpose of the 212(h) aggravated felony ground of ineligibility if the person was not inspected and admitted and admitted from abroad--i.e., where the person entered without inspection. It found the language of the statute did not preclude the interpretation of the Board of Immigration Appeals in this circumstance.