On Oct. 13, 2017, the Board of Immigration Appeals (BIA) issued its latest decision on eligibility for waivers of crime-based inadmissibility pursuant to INA § 212(h) in Matter of Vella, 27 I&N Dec. 138 (BIA 2017). While the issue on appeal in Vella is fairly narrow, this decision provides a useful opportunity to review some of the quirks of eligibility for 212(h) waivers. INA § 212(h) bars any non-citizen from waiver eligibility if the individual “…has previously been admitted to the United States as an alien lawfully admitted for permanent residence if…since the date of such admission the alien has been convicted of an aggravated felony…” Since Congress amended the statute to create this bar to eligibility in 1996, there has been a great deal of litigation interpreting this bar.

Two decisions from the BIA, 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 provision as barring all lawful permanent residents (LPRs) with aggravated felony convictions from eligibility, regardless of whether they were admitted to the United States as LPRs through consular processing or adjusted status in the United States. Ten out of eleven U.S. Circuit Courts of Appeals ruled on this issue and all but one disagreed with the BIA’s position.  hose ten appellate court decisions found this provision to be limited to barring those LPRs who were admitted to the United States after consular processing abroad.  n 2015, the BIA again reviewed the issue in Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015). In Matter of J-H-J-, the Board followed the majority of appellate decisions and held that only LPRs who entered the United States after consular processing abroad who were subsequently convicted of an aggravated felony are barred from eligibility for a 212(h) waiver.

The issue on appeal in Matter of Vella takes this dispute one step farther. Mr. Vella had been admitted to the United States as an LPR through consular processing in 1967. In 2007, he was convicted of two aggravated felonies and placed in removal proceedings. The immigration judge presiding over the case granted adjustment of status. A 212(h) waiver was not needed at that time because his convictions did not render him inadmissible. In 2015, Mr. Vella was convicted under federal law of conspiracy to commit extortion.  He was then placed in removal proceedings for the second time. After some back and forth with the BIA on the issue of deportability, Mr. Vella was found deportable for conspiracy to commit an aggravated felony theft offense. The issue on appeal was whether Mr. Vella was eligible for a 212(h) waiver of the crime involving moral turpitude ground of inadmissibility at INA § 212(a)(2)(A)(i)(I) so that he could be eligible for adjustment of status.

The immigration judge found that Mr. Vella was ineligible for a 212(h) waiver because he had “previously been admitted for permanent residence” in 1967 and was later convicted of an aggravated felony. Mr. Vella argued on appeal that the word “previously” in the statute should be interpreted to refer to the most recent occasion on which he was granted LPR status. Mr. Vella’s most recent grant of LPR status was through adjustment of status in removal proceedings in 2009, as opposed to when he became an LPR through consular processing in 1967.  

In reaching its decision in this case, the BIA followed the Second Circuit’s analysis of this issue in Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) in which the court found that the meaning of the word “previously” “does not commonly refer to the most recent occurrence of action, but to action that has taken place sometime in the indefinite past.” See Matter of Vella, 27 I&N Dec. 138, 140 (BIA 2017), citing Dobrova v. Holder, 607 F. 3d 297, 301 (2d Cir. 2010). The BIA held that Mr. Vella’s 2009 adjustment of status did not preclude a finding that he was ineligible for a 212(h) waiver because he entered the country as an LPR after consular processing in 1967 and was subsequently convicted of an aggravated felony. The Board concluded that if a person was inspected, admitted and entered the United States as an LPR at any time in the past, that person is barred from 212(h) eligibility, even if that was not his or her most recent acquisition of LPR status.