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Matter of Ka A. Paek

The Board held that an immigrant admitted at a port of entry as a conditional permanent resident is subject to the 212(h) aggravated felony bar.   That bar prohibits an immigrant admitted to the United States as "an alien lawfully admitted for permanent residence" from applying for a 212(h) waiver of criminal inadmissibility if the alien has been convicted of an aggravated felony after admission.  The question here, though, is whether the bar applies if the immigrant was admitted to the U.S. in lawful permanent resident status on a conditional basis, which occurs if the permanent resident status is based on a marriage entered into less than 2 years before the admission.  

The Board held that the aggravated felony bar does apply to immigrants admitted as conditional residents under the plain language of the Act.  It reached that conclusion because the Act refers to those immigrants as having "obtain[ed] the status of lawful admission for permanent residence," albeit on a conditional basis.  The Board, however, failed to address why the conditional status should not matter.  The requirements to remove that conditional status place these immigrants in a much different situation than immigrants truly admitted to permanent residence in the sense of having the right to reside in the U.S. indefinitely.  Perhaps the distinction does not matter, but the Board should have stated why.