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Matter of Giovanny Rivas

The Board of Immigration Appeals held that a stand-alone 212(h) waiver is not available to a lawful permanent resident unless he is an applicant for admission or files a concurrent application to adjust status. It rejected the immigration judge's decision to grant 212(h) nunc pro tunc to the date of a prior admission to the United States.

Rivas was admitted to permanent resident status in 1998 and then received two separate petty theft convictions in 2001. He traveled abroad on several occasions and was readmitted to the U.S. each time despite his inadmissibility for having two convictions for crimes involving moral turpitude. He later was put in removal proceedings as a deportable alien for having two convictions for crimes involving moral turpitude. He applied for 212(h) as discretionary relief from removal and the immigration judge granted it. DHS appealed and the Board sustained the appeal.

Rivas pointed out DHS should have put him in removal proceedings when he previously applied for admission to the U.S. after travel abroad--at which point he undisputably would meet the eligibility criteria. To now hold that he is ineligible for that form of relief (since he apparently did not have a basis to readjust) based on the fortuitous circumstance that DHS was negligent in allowing him back into the U.S. makes no sense. So, the appropriate remedy, as indicated by an earlier Board decision in Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), is to back-date the grant of the waiver to the date of his earlier erroneous admission.

The Board disagreed, finding that the statute requires the immigrant be an applicant for admission or an applicant for adjustment and that nunc pro tunc relief would impermissibly sidestep that requirement. It said it has to abide by this statutory language to give effect to the clear intent of Congress. The Board described nunc pro tunc relief as a means only to fill a gap in the statutory criteria.

The Board's rationale, however, fails to recognize that the clear intent of Congress is for DHS to put inadmissible immigrants in removal proceedings when they seek admission from abroad. If DHS had done that, Rivas would be eligible for 212(h). Allowing nunc pro tunc relief fills the unanticipated gap of what to do if DHS fails to do its job. Further, permitting a nunc pro tunc 212(h) waiver does not sidestep the statutory language because Rivas was at one point an inadmissible applicant for admission. This is not the case of someone who did not depart the U.S. after becoming deportable.

Of course, the Board's unstated motivation for this decision was likely to avoid setting up an equal protection argument like the one that resulted in Francis extending 212(c) to immigrants who never departed the U.S. The rationale for that decision was that it was unfair to treat immigrants who have departed the U.S. more favorably than immigrants who have not. By holding that neither group is eligible for 212(h) unless they are put in proceedings at the border or apply for adjustment, perhaps the Board hoped to prevent a court decision finding a denial of equal protection. If so, I think it failed. Treating immigrants differently based on the fortuitous circumstance of whether an immigration inspector properly put them in proceedings upon their last arrival to the U.S. or not is just as unfair.