10th Circuit Joins the Crowd: Another Rejection of the BIA’s 212(h) Aggravated Felony Bar | CLINIC

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10th Circuit Joins the Crowd: Another Rejection of the BIA’s 212(h) Aggravated Felony Bar

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Carlos Jovany Medina-Rosales is an LPR who obtained his residency through adjustment of status in 2001.  Twelve years later, in 2013, he was convicted of grand larceny and was placed in removal proceedings in Tulsa, OK, charged with deportability for an aggravated felony offense.   Conceding the charge, Mr. Medina-Rosales sought to re-adjust, and to waive his inadmissibility under INA § 212(h). The immigration judge, however, found him ineligible for relief based on the Board's decision in In re Rodriguez, 25 I&N Dec. 784 (BIA 2012), which held that any alien convicted of an aggravated felony after becoming an LPR is ineligible for a waiver of inadmissibility, regardless of when or how that status was obtained. The BIA affirmed the immigration judge's decision and the case was appealed to the Tenth Circuit, one of the few circuits that had yet to rule on this issue.

In Medina-Rosales v Holder, No. 19-9541(10th Cir. 2015), the Tenth Circuit became the ninth circuit court of appeals to reject the BIA's analysis of the so-called "aggravated felony 212(h) bar." Under the terms of the statute, no 212(h) waiver may be granted to an alien "previously admitted to the U.S." as an LPR if that individual was either convicted of an aggravated felony or does not have seven years of continuous lawful residence in the United States before being placed in removal proceedings.   Concurring with decisions issued in the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, and 11th circuits, the 10th Circuit rejected the Board's analysis in Matter of Rodriguez, concluding that the 212(h) bar does not apply to an LPR who adjusted status in the United States.  Finding the language of 212(h) to be "clear and unambiguous," the court held that adjustment of status  is not an admission and that  “only persons who obtained LPR status before or when they entered the United States are barred from seeking a waiver" under this provision.  Medina-Rosales at 9.   With this decision, the count is now 9 to 1 against the Board's interpretation of the 212(h) bar, with only the 8th Circuit deferring to the Board's analysis. Roberts v Holder, 745 F.3d 928 (8th Cir.2014).  It remains to be seen whether this overwhelming rejection of the Boards' interpretation of the 212(h) bar may persuade the Board to revisit this issue.