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New Case Law: If Conditional Permanent Residents are Eligible for 212(h) Waivers

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On September 17, 2014 the BIA held in Matter of Ka A. Paek that an alien who was admitted to the United States as a conditional permanent resident is considered lawfully admitted for permanent residence and is barred from establishing eligibility for a waiver of inadmissibility if he or she is later convicted of an aggravated felony.

In 1991 the respondent, a native and citizen of South Korea, was admitted to the United States as a conditional permanent resident by being the spouse of a United States citizen.  Subsequent to his admission as a conditional permanent resident, in 2005 and 2006 he was convicted of a theft and a robbery offense and removal proceedings were initiated.  At his hearing before the Immigration Judge the respondent applied for adjustment of status based on his marriage to a United States citizen and also sought for a waiver of inadmissibility under 212(h) of the INA because of his convictions in 2005 and 2006.  At the hearing the Immigration Judge held that the respondent had been convicted of an aggravated felony after his admission and was therefore barred from eligibility for a 212(h) waiver.

Section 212(h) of the INA provides for a discretionary waiver of some of the crime related inadmissibility grounds.  A 212(h) waiver will waive the inadmissibility grounds relating to:  (1) crimes involving moral turpitude; (2) engaging in prostitution; (3) a single conviction for simple possession or being under the influence of 30 grams or less of marijuana, or an equivalent amount of hashish; (4) a conviction of two or more offenses with an aggregate sentence imposed of at least five years that took place more than 15 years before the current application with proof that the applicant is rehabilitated or (5) asserting immunity against prosecution of a serious crime.

However, Section 212(h) includes a provision known as the Aggravated Felony Bar.  The Aggravated Felony Bar confirms that no waiver shall be granted to an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if since the date of the admission the alien has been convicted of an aggravated felony.

Thus, in this case the BIA was faced with the question of whether the Aggravated Felony Bar applies to the respondent, who was admitted into the United States as a conditional permanent resident.  Since the INA only states that the Aggravated Felony Bar is applicable to aliens lawfully admitted for permanent residence, the BIA had to determine whether an alien who is admitted as a conditional permanent resident is equivalent in meaning to an alien who is admitted for permanent residence.

As previously mentioned, the Immigration Judge held that the Aggravated Felony Bar applied to the respondent and thus indirectly holding that aliens who are admitted as a conditional permanent resident are also considered lawfully admitted for permanent residence.  The BIA agreed with this determination by analyzing whether admission of a conditional permanent resident as described under Section 216(a) is encompassed within the phrase lawfully admitted for permanent residence as described under Section 214(h).  The BIA noted that the plain language of a number of provisions in Section 216 clearly establishes that an alien admitted as a conditional permanent resident is in fact lawfully admitted for permanent residence.

Specifically, Section 216(a)(1) states that “an alien spouse… and an alien son or daughter… shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis….”  The BIA ultimately determined that the language of a number of provisions in Section 216 make it clear that permanent resident status is obtained on the date of an alien’s initial admission as a conditional permanent resident.  Thus while an alien may be admitted to the United States under Section 216 on a conditional basis, such admission is an admission as an alien lawfully admitted for permanent residence.

Therefore because the respondent was admitted to the United States in 1991 as a conditional permanent resident he was admitted as an alien lawfully admitted for permanent residence, thus the Immigration Judge properly determined that the respondent is subject to the Aggravated Felony Bar and is ineligible for a 212(h) waiver.

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