The Board of Immigration Appeals ("BIA") recently issued a precedential decision late this month that may be of interest to green card holders who are or may be facing removal proceedings. The case is Matter of Giovanni Rosalia VELLA, 27 I &N Dec. 138 (2017). The issue concerns whether a lawful permanent resident who is convicted of an aggravated felony is eligible to file for a 212h criminal waiver if his/her most recent admission was not as a lawful permanent resident. Under 212h of the Immigration and Nationality Act, the government may waive the following criminal grounds of inadmissibility:
- Crimes involving moral turpitude, or "CIMTs"
- Multiple criminal convictions
- Prostitution and commercialized vice
- Possession of 30 grams or less of marijuana
- Certain crimes committed by a foreign national asserting immunity from prosecution
Under the law, a foreign national may qualify for a 212h waiver of the aforementioned crimes under one of the following criteria:
- the disqualifying criminal activity occurred more than fifteen years prior to the alien's application for a visa, admission or adjustment of status;
- the admission would not be contrary to the national welfare, safety, or security of the US; and
- the alien has been rehabilitated.
Alternatively, one may qualify for a 212h waiver if the alien can demonstrate
- his/her removal would cause extreme hardship to a US Citizen or lawful permanent resident parent, spouse, son or daughter.
There is also a waiver available to battered spouses, parents, and children.
However, there are certain crimes and conditions under which an alien will not be eligible to apply for a 212h waiver. For example, one who has been convicted of or admits committing murder would not be eligible. Another bar-which was at issue in Matter of Vella-applies to an individual who has been previously admitted to the US as an alien lawfully admitted for permanent residence if, since the date of such admission, he/she has been convicted of an aggravated felony. In the case at hand, the respondent Mr. Vella was granted permanent resident two times. He initially consular processed and entered the US as a lawful permanent resident in 1967. He subsequently was convicted of criminal activity which led to removal proceedings. In Court, Mr. Vella was able to file for adjustment of status, in effect, starting his permanent residence all over. In 2015, however, Mr. Vella was convicted of new criminal charges which constituted an aggravated felony. In new removal proceedings, Mr. Vella did not contest that he was convicted of a deportable aggravated felony. Instead, he argued that since his last "admission" was through adjustment of status, he was not "previously admitted" as a lawful permanent resident (such as when he first entered the country through the consular process); as a consequence, he argued that he was not ineligible to apply for a 212h waiver. This was a very technical defense, relying on hairsplitting parsing of the language in the statute.
Unfortunately for Mr. Vella, the court disagreed, finding that the "plain meaning" of the text dictated a common-sense interpretation in which "previously" does not specifically mean the last entry, but rather "to an action that has taken place sometime in the indefinite past." In other words, once the respondent entered as a lawful permanent resident, he fell within the prohibitory ambit of the statute, notwithstanding that he may have subsequently and most recently become a permanent resident again, ie., through adjustment of status.
So while adjustment of status and consular processing may ultimately lead to the same destination or result, that is, permanent residence, it is still vitally important how the person arrived there. In the Third Circuit, the aggravated felony bar does not apply to a lawful permanent resident who has adjusted his/her status. See Hanif v. Atty General, 694 F. 3d 479, 484 (2012). However, permanent residents who consular processed and received their immigrant visas abroad are not insulated. Here, in Matter of Vella, the respondent might have been eligible to apply for 212h if he solely acquired permanent residence through adjustment of status; but because he was previously admitted as a green card holder though consular processing, he was held ineligible.
For more information on the differences between consular processing and adjustment of status, and which avenue is strategically better for you, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.