By Susan Schreiber
Hasim Husic, a native of Yugoslavia, entered the United States with a tourist visa, was subsequently granted asylum, and then adjusted to LPR status in 1998. After being convicted of attempted criminal possession of a weapon in the second degree, Husic was placed in removal proceedings and charged with deportability for having a firearms offense and an aggravated felony offense. When Husic sought to apply for adjustment with an INA § 212(h) waiver, the immigration judge found him ineligible, based on the provision of 212(h), which states that no 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 U.S. before being placed in removal proceedings. Although Husic argued that this language didn't apply to him because he adjusted status after entering the United States, the immigration judge disagreed with him and found him ineligible for a waiver. After the decision was affirmed by the Board, Husic appealed to the Second Circuit, which had not yet addressed this issue.
On January 8, 2015, the Second Circuit became the latest court to reject the Board's analysis about LPR eligibility for an INA § 212(h) waiver. Husic v Holder, Docket No. 14-607 (2nd Cir. 2015). With this decision, the Second Circuit joins seven other circuits in finding that lawful permanent residents who were not initially admitted to the U.S. as LPRs are not subject to INA Section 212(h) aggravated felony bar.
What is the Board's position? In two different decisions, two years apart, the BIA has upheld the applicability of the 212(h) LPR bar to all LPRs, regardless of status at entry. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of E.W. Rodriguez, 25 I&N 784, (BIA 2012). The BIA's analysis of the statute, however, has now been rejected by 2nd, 3rd, 4th, 5th, 6th, 7th, 9th and 11th Circuits. Only the 8th Circuit has deferred to the Board's position on this issue, finding that the provision is ambiguous and the Board's position is reasonable. Roberts v. Holder, 745 F.3d 928 (8th Cir.2014). As the weight of authority goes against the Board's analysis of this issue, it remains to be seen whether this will trigger the Board to re-examine its position.