The U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"),
the federal appeals court that reviews the decisions by the Board of Immigration
Appeals ("BIA") regarding removal proceedings held in Western
states including California, Nevada, Arizona, and Washington, explicitly
added itself yesterday to the list of five other circuits that have found
that adjustment of status, i.e., applying for and acquiring a Green Card
here in the U.S. as opposed to obtaining one via application to a consular
post abroad, does not necessarily amount to an "admission" for
purposes of eligibility for a waiver of crime-based grounds for inadmissibility.
The decision,
Negrete-Ramirez, may not have even been the most news-worthy decision of the day by the
Ninth Circuit, which also separately ruled on the same date that jurors
in federal-court trials could
not be dismissed simply for being homosexual.
Nevertheless, the decision certainly has a tremendous impact on thousands
if not tens of thousands of Green-Card holders who find themselves removable
from the U.S. because of certain criminal convictions but
who had been previously admitted
to the U.S. in some other status prior to adjusting to the status of a
Green-Card holder. As a way of background, the waiver at issue falls under
Section 212(h)
of the Immigration & Nationality Act, wherein a foreign national can
have waived the immigration consequences of one or more certain criminal
convictions if s/he can prove various requirements. The waiver can even
be used to waive almost all
Aggravated Felonies, which are specifically defined categories of convictions that the Immigration
& Nationality Act deems to be of the most egregious of criminal acts.
If the waiver is granted, then the foreign national may receive a Green
Card or otherwise keep the Green Card s/he already has.
However, for several years, the BIA has strictly interpreted the eligibility
exception relating to foreign nationals who already have Green Cards.
That exception
pertains to Green-Card holders who, like the woman at issue in
Negrete-Ramirez, have been convicted of at least one Aggravated Felony since receiving
his/her Green Card or who have not lawfully resided continuously in the
U.S. for at least seven years before being placed in removal proceedings.
Therefore, many Green-Card holders are not even eligible to receive the
waiver because they have already been once granted a Green Card. While
some may initially think that such an exception is unconstitutional because
it treats non-Green-Card holders including undocumented individuals who
are not affected by it better than Green-Card holders, such equal-protection-based
challenges have failed because federal courts have determined that the
U.S. Congress had not acted unreasonably in limiting access to the waiver
to those foreign nationals who have not already been granted the privilege
of Green-Card-holder status and who have not therefore betrayed that privilege
so soon after receiving such status by committing serious crimes.
The Ninth Circuit's decision does not decide differently and does
not even address the issue of equal protection but instead, as with the
other circuits
that have ruled the same way, simply follows the
plain reading
of Section 212(h). That plain reading led the Ninth Circuit to interpret
the exception
to apply only to
foreign nationals who did not have an "admission," such as on
a tourist or other nonimmigrant visa, prior to their being granted Green-Card-holder
status. Specifically, even if one has already been granted a Green Card
and assuming the other requirements are met,
s/he can still pursue
a waiver under Section 212(h) if such previous grant of a Green Card both:
(A) was through adjustment of status, as opposed to consular processing, AND
(B) was preceded by an admission to the U.S. in some nonimmigrant or other
non-Green-Card-holding status.
Specifically left out of this decision are those foreign nationals whose
first admission to the U.S. was on an immigrant visa and those foreign
nationals who entered the U.S. without having been admitted and then later
nevertheless obtained a Green Card through, for example, an amnesty program.
Because of the complexity of the requirements, foreign nationals who feel
they may be affected by this decision, even if they have already been
ordered removed for previously having been found ineligible for a Section-212(h)
waiver, should seek skilled immigration-related legal counsel immediately.
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