BIA HOLDS THAT ONE ADMITTED AT A PORT OF ENTRY AS A CONDITIONAL RESIDENT IS ASSIMILATED TO THE STATUS OF AN APPLICANT “LAWFULLY ADMITTED FOR PERMANENT RESIDENCE” AND THEREFORE BARRED FROM WAIVER ELIGIBILITY UNDER INA § 212(h) IF SUBSEQUENTLY CONVICTED OF AN AGGRAVATED FELONY.  

On September 17, 2014, the Board of Immigration Appeals (BIA) upheld the Immigration Judge’s (IJ’s) prior decision that one convicted of an aggravated felony after admission at a port of entry as a conditional permanent resident is ineligible for a waiver of inadmissibility under INA § 212(h) and is therefore also ineligible for adjustment of status under  INA § 245(a). Noting that § 212(h) contains an “aggravated felony bar” which denies the waiver to anyone previously admitted to the U.S. “as an alien lawfully admitted for permanent residence if…since the date of such admission the alien has been convicted of an aggravated felony”, the BIA held that the plain language of INA § 216 establishes that one admitted as a conditional resident is included within the category of those lawfully admitted for permanent residence and is therefore subject to the aggravated felony bar. Matter of Paek, 26 I. & N. Dec. 403 (BIA 2014).

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