By Susan Schreiber
In 1996, Congress amended INA § 212(h) to bar waiver eligibility for an alien with an aggravated felony conviction if that individual had "previously been admitted to the United States as an alien lawfully admitted for permanent residence..." Since then, the language of this so-called “aggravated felony bar" has been the subject of two BIA decisions and ten appellate court decisions. The Board decisions, Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) and Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), interpreted this language as applying to all LPRs, including those who entered the United States EWI or in a nonimmigrant status. The Eighth Circuit, finding the statutory language ambiguous, issued a decision deferring to the Board's interpretation. Roberts v Holder, 745 F.3d 928 (8th Cir. 2014). In contrast, nine appellate court decisions rejected this interpretation and viewed the language of 212(h) as not applying to those LPRs who adjusted status in the United States. Only the First Circuit has yet to rule on this issue.
On May 12, the Board released a decision bowing to the weight of authority on this issue by holding that an alien who adjusted status in the United States and who has not entered as a LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction. Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015). Now, only those who entered the United States as LPRs and thereafter are convicted of an aggravated felony are precluded from establishing 212(h) eligibility based on an aggravated felony. The Matter of Koljenvic and Matter of E.W. Rodriguez decisions have been withdrawn.