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Second Circuit Holds that Aliens who Attain Permanent Resident Status after Being Admitted to the U.S. are Eligible for 212(h) Waivers

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In Husic v. Holder, issued January 8, 2015, the United States Court of Appeals for the Second Circuit held that an alien who adjusted to legal permanent resident (“LPR”) status after being admitted to the United States is eligible to seek an inadmissibility waiver from the Attorney General under Section 212(h) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182(h). Joining seven sister circuits – including the Third, Fourth, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits – on the issue, the Second Circuit found that Hasim Husic, an alien who obtained LPR status after entering the United States as a visitor, is not “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” under Section 212(h). Only the Eighth Circuit has reached the opposite conclusion.

Section 212(h) permits the Attorney General, in his discretion, to waive certain crime-related inadmissibility grounds set forth in Section 212(a) of the INA. However, Section 212(h) also contains a provision that bars certain aliens from applying for waivers if they have been convicted of an aggravated felony after their date of admission. This provision, known as the Aggravated Felony Bar, only applies to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” Husic v. Holder turned on whether an alien who adjusts to LPR status after being admitted to the United States is covered by that description. If so, then he is statutorily barred from seeking an inadmissibility waiver from the Attorney General.

Hasim Husic, a native of the former Yugoslavia and citizen of Montenegro, lawfully entered the United States as a B-2 visitor in 1994. He was granted political asylum in 1995 and became an LPR in 1998. In 2012, he pleaded guilty to a New York state felony charge, attempted criminal possession of a weapon in the second degree. He received a three-year prison sentence.

The government charged Husic with removability based on his firearms conviction and an immigration judge held that his offense constituted an aggravated felony under the INA. Noting that Husic wanted to seek a 212(h) inadmissibility waiver and apply for a status adjustment, the immigration judge also held that he was ineligible for seeking a 212(h) waiver because he is an LPR who has been convicted of an aggravated felony. Husic appealed to the Board of Immigration Appeals (“BIA”), but the BIA dismissed the appeal. The Second Circuit reversed on the issue of whether Husic is eligible to seek a 212(h) waiver.

Because the BIA based its interpretation of 212(h) on one of its prior binding decisions, the Second Circuit applied Chevron deference to the BIA’s decision. The first step in the Chevron test required the court to determine whether the relevant provision in 212(h) is ambiguous. After substituting the INA’s definitions for the term “admitted” and the phrase “lawfully admitted for permanent residence” into the relevant provision of Section 212(h), the court concluded that there are clearly two requirements that must be met for an alien to be barred from seeking a 212(h) waiver: (1) the alien must have “previously been admitted to the United States”; and (2) the alien must have been “admitted with the status of ‘an alien lawfully admitted for permanent residence.’” The second requirement only is met if the alien has LPR status at the time he is admitted to the United States. An adjustment of status to become an LPR after being admitted to the United States does not satisfy the second requirement. Concluding that Husic is “unambiguously not ‘an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence,’” the court held that he is eligible to seek a 212(h) waiver.

Although the court explicitly declined the address the issue, this ruling leaves open the possibility that other LPRs, including those who entered without inspection, may be exempt from the Aggravated Felony Bar.

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