The Board of Immigration Appeals finally capitulated in this decision to what it recognized was the "overwhelming circuit court authority" that an aggravated felony conviction does not bar a waiver of inadmissibility under 212(h) unless the applicant has "previously been admitted to the United States as an alien lawfully admitted for permanent residence." In other words, a 212(h) waiver of criminal inadmissibility is available if a permanent resident adjusted to that status in the U.S., but not if she entered the U.S. on an immigrant visa. Nine circuit courts had found that conclusion compelled by the plain language of the statute, so the Board gave up the fight and withdrew from its decisions in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).
Admittedly, though, one can see why the Board sought to have the aggravated felony bar apply to permanent residents regardless of whether they adjusted status or entered on an immigrant visa: There seems to be no rational basis for distinguishing between the two groups. Without a rational basis for the distinction, denying 212(h) to permanent residents who entered the U.S. on immigrant visas would violate due process. I am sure that will be the next argument for intrepid immigration lawyers like myself--the 212(h) aggravated felony bar should not apply to immigrant visa entrants either!