UNTIE THE KNOT IN 212 H WAIVER
To help us untie this knot are precedent decisions in Medina- Rosales, Stanovsek, and Negrete-Ramirez. The Immigration Court has often times over respondents who are statutorily eligible for relief under 212 h waiver (8 U.S.C. § 1182(h) prior to the entry of the administrative final order of deportation.
The 212 h waiver is an intended safeguard to ensure a proper and lawful disposition of Immigration proceedings to respondent’s core claims. INA § 240 (c)(7)(B). Most respondent who are served with Notice to Appear in light of the above mentioned precedents are not barred from applying for this waiver, only non-citizens who entered into United States as Legal Permanent Residents (LPR) are barred from eligibility to apply for waiver. Source; Immigration and Nationality Act § 212(h),8 U.S.C.§ 1182(h).
Section 1182(h) statutory language stated in relevant part:
“The Attorney General may, in his discretion, waive the application of [provisions relating to exclusion] . . . .(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States, or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien”; 8 U.S.C. § 1182(h).
The bar to seeking a § 212(h) waiver does not apply to people who have entered the country through inspection and adjusted status thereafter. This include refugees who attained lawful permanent residents status after two years of being in the country rather than those who were admitted as LPR. On issue of first impression, respondent’s who post-entry adjustment of status as “alien” refugees to LPR’s after they entered United States does not constitute “admission” in context of provision governing waiver of grounds of inadmissibility.
Adjustment is this content is a change of an “alien’s” refugee status to that of an alien lawfully admitted for permanent residence, (Husic, 776 F.3d at 64) (citing 8.U.S.C. § 1255(a) but adjustment of status is not an admission. Section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20), defines the term, lawfully admitted for permanent residence as [t]he status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed, regardless of whether they obtained that status prior to or by adjusting their status while they physically entered the United States. See; Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050-54 (9th Cir.2014) (recognizing definition refers to immigration status regardless of how or when it was obtained).
“ The phrase “lawful admission for permanent residence” is a totally different phrase from the term of art of 8 U.S.C. 1101 (a) (20), “lawfully admitted for permanent residence.” See; In re Jose Luise Mercado-Zazueta v. Holder, 580 F.3d 1102, 1104(9th Cir. 2009).
Needless to say, plain statutory language is the most instructive and reliable indicator of Congressional § 212(h)’s plain language as stated above demonstrates unambiguously Congress’ intent not to bar respondents convicted of felonies who adjusted their status post entry to lawful resident status from seeking a waiver of inadmissibility.” as here the immigration court must give effect to Congress intent. Moreover in light of this cases, Court must presume that a legislature says in a statute what it means and means in a statute what is says there. Absent indication to the contrary, in analyzing the text of a statute, courts apply the “ordinary, contemporary, common meaning” of the terms contained in it. See;,Pioneer Inv. Servs. Co. v. Brunswick Assocs., 123 L. Ed. 2D 74 (1993).
Admission vs. Admitted
The plain language of 212 (h) REVEALS THAT “admitted”, as employed in § 212(h), includes an “Alien” lawful entry into this Country with permanent resident status, stated differently for the §212 (h) bar to apply, when the “Alien” is granted permissions, after inspection, to enter the United States, he must then be admitted as an LPR. Accordingly, there’s no basis for the statutory language’s being ambiguous. Again this based in part on Congress’ having defined “admitted.” Under the Chevron-framework, we first determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter for the court, therefore agency must give effect to the unambiguously expressed intent of Congress”. quoting Chevron, 467 U.S at 842-43.
For determining ambiguity vel non, if this statutory text stood alone, the court would define “admitted” by its ordinary, contemporary, and common meaning, as discussed supra. Congress has relieved us from this task, however, by providing the following definition: “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”. 8 U.S.C. §1101(a)(13)(A) (emphasis added). Under statutory definition, “admission” is the lawful entry of an alien after inspection, something quite different, obviously, from post-entry adjustment of status, as done by most respondents in immigration proceedings.
Executive Office for Immigration Review (EOIR)’s malfeasance, including the Immigration Court, the Board’s and Attorney General’s incorrect positions and misguided interpretations regarding § 212(h) eligibility prevented many respondents from applying for this relief. The Immigration Court begin with failure to inform respondents that they could apply for § 212(h) relief. Under title 8 Code of Federal Regulations, § 1240.11 (a)(2) Immigration Judges are obliged to inform the respondents of possible relief from removal.
Immigration Court conduct on this issue is symptomatic of a larger Board of Immigration’s misinterpretation of eligibility of § 212(h) relief which will be discus more in detail in the next article.
As here the fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning. Based on the clear and unambiguous language of § 1182(h) the court should conclude that’ only persons who obtained LPR status before or when the entered the United States are barred from seeking a waiver under § 1182(h). Because most respondents in immigration proceedings obtained LPR status after they entered the United States, they are eligible for discretionary consideration for waiver of inadmissibility under § 1182(h), 212 h waiver.