Immigration Board of Immigration Misinterpretation of Eligibility of § 212(h) Relief.

Hops, Skips, and Jumps of Lawful Admission II

The Immigration Court conduct, is symptomatic of a larger agency malfeasance is the Board’s misinterpretation of eligibility of § 212(h) relief. The Court of Appeals has corrected the Agency’s approach to §212 (h) eligibility in at least few cases such as:

First, the Fourth Circuit overturned the Agency’s position In re Shanu 23 I&N. Dec.754 (BIA., 2005) /Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006) in which the Appeal Court find that the BIA erroneously determined that the date on which Shanu adjusted his status to become a permanent resident qualifies as “the date of admission” within the meaning of  § 1227 (a)(2)(A)(i) Id. at 759 (holding that the date of adjustment of status does not qualify as the date of admission” under that provision.)

Next, in Yeung v. INS 76 F.3d 337, 340-41 (11th Cir 1995) rejected as “arbitrary” the Board’s ruling in Matter of Parodi 17 I&N Dec, 608, 611 (BIA 1980) finding a permanent resident alien who had not departed and reentered subsequent to the conviction for a deportable offense eligible to apply for a waiver under section 212(h) in conjunction with an application for adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1976)) and the person cannot obtain Nunc Pro Tunc relief. (The BIA has considered § 212 (h) waiver applications in conjunction with adjustment application only. [emphasis added]. Relegating Yeung, he court held that “to a different classification of persons simply by virtue of his failure to depart and reenter, is to recognize a distinction that can only be characterized as arbitrary, and that is without`a fair and substantial relation to the object of the legislation. ” 76 F.3d at 340.001

Having found the Board’s interpretation of section 212(h) of the Act unconstitutional as applied to the respondent, the court remanded this case to the Board with instructions to reconsider its prior interpretation of section 212(h) in Matter of Sanchez, supra, Matter of Parodi, supra, in order to make them consistent with one another and with the language of the statute itself.

Finally, In Francis v. INS 530 F.2d 268 (2nd Cir. 1976) rationale for 212(c) cases to 212(h), the Court held that the former § 212(c) relief violated equal protection because it was available outside the U.S., but not to a permanent resident who had not happened to travel abroad”.   The rationale for the Francis decision was that’ to provide for section 212(c) relief to deportable aliens returning from abroad but not for aliens similarly situated who had not departed from the United States would constitute an unconstitutional classification inconsistent with due process. 532 F.2d at 272-273. The Board specifically declined to rule on the question of whether or not a non-citizen who has not left the United States can apply for section 212(h) relief in deportation proceedings. Matter of Yeung, 22 I&N Dec 610, 612 (BIA 1996). More recently 5th and 7th Circuit upheld the distinction between LPR’s who departed the County and are charged with inadmissibility and those who had not departed the Country and, thus are charged with deportability.

In Klementanovsky v. Gonzales, 501 F.3d 788 (7th Cir 2007)The Seventh Circuit found that there were “any number of rational grounds on which Congress could choose to draw a line between those who committed crimes before applying to enter the country (making them inadmissible) and those who have committed crimes since arriving (making them deportable).” See: Klementanovsky. v. Gonzales, supra, at 792. The Circuit position reasons why Congress may have contemplated a statutory distinction between those two groups and criticized the Yeung decision (notably, that the Yeung Court focused exclusively on the BIA created distinction and not any Congressional -created distinction. 501 F.3d at 793.

The Board earlier took the position that a lawful permanent resident present in the United States could apply for a waiver under section 212(h) during deportation proceedings so long as he “depart[ed], return[ed], and then appl[ied] for a waiver.” Klementanovsky, 501 F.3d at 793. See, e.g., Matter of Sanchez, 17 I. & N. Dec. 218, 222-24 (BIA 1980).

As Agency’s errors, reflected in its decisions /(212)(h)] cases, constitutes specific “errors” of law’ withing the meaning of INA  § 240 (c)(6)(B), which the Immigration Courts must consider. The court held that relegating Yeung “to a different classification of persons simply by virtue of his failure to depart and reenter, is to recognize a distinction that can only be characterized as arbitrary, and that is without `a fair and substantial relation to the object of the legislation. In view of the latest Court decisions in Matter of J-H-J-, 26 I&N Dec.563 (BIA 2015) and Medina-Rosales v. Holder, 778 F.3d 1140(2015), and the clear and unambiguous language of § 1182(h) “only persons who obtained Legal Permanent Resident status before or when the entered the United States are barred from seeking a waiver under § 1182(h). Because most respondent’s obtained LPR’s status after they entered the United States, consequently they are eligible for discretionary consideration for waiver of  inadmissibility under § 1182(h).

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