BIA JOINS MAJORITY OF CIRCUIT COURTS IN HOLDING THAT AN LPR WHO ADJUSTED STATUS, AND DID NOT ENTER THE U.S. AS A PERMANENT RESIDENT AFTER PICKING UP AN IMMIGRANT VISA, IS ELIGIBLE TO APPLY FOR A WAIVER OF INADMISSIBILITY UNDER INA § 212(h), EVEN AFTER BEING CONVICTED OF AN AGGRAVATED FELONY.
On May 12, 2015, the Board of Immigration Appeals (BIA), citing to the “overwhelming circuit court authority in disagreement” with its holdings in Matter of Koljenovic, 25 I & N Dec. 219 (BIA 2010) and Matter of E.W. Rodriguez, 25 I & N Dec. 784 (BIA 2012) to the contrary, held that one who becomes a lawful permanent resident (LPR) via adjustment of status is not barred from establishing eligibility for an INA § 212(h) waiver as the result of an aggravated felony conviction. Acceding to “the clear majority view” and looking to further consistency and uniformity in the application of U.S. immigration law, the BIA withdrew from Koljenovic and E.W. Rodriguez and found that § 212(h) only precludes LPRs who entered the U.S. as permanent residents from establishing waiver eligibility after an aggravated felony conviction. Matter of J-H-J-, 26 I & N Dec. 563 (BIA 2015).
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