This article was written by Thomas K. Ragland and he will present it to the South Florida Chapter of the American Immigration Lawyers Association annual Continuing Legal Education Conference in February 2014.
Among the most hotly litigated immigration law issues in recent years centers on the meaning and scope of the so-called “aggravated felony bar” in section 212(h) of the Immigration and Nationality Act (“INA”). A number of federal courts – including the U.S. Court of Appeals for the Eleventh Circuit – have rejected the interpretation articulated by the Board of Immigration Appeals (“BIA” or “Board”) in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), and reaffirmed in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). These circuit courts have unanimously espoused a narrower construction based on the plain language of the statute. To determine whether a particular court’s holding may benefit an individual client, it is essential to understand the BIA’s position, the contrary views among the circuits, and the arguments that underlie these opposing interpretations.
We begin, as always, with the language of the statute. Section 212(h) of the INA provides, in relevant part:
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if –
(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General that —
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,
(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.
… No waiver shall be granted under this subsection in the case of an alien who 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 …. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection. (Emphasis added).
The INA defines the terms “admission” and “admitted” to mean, with respect to a noncitizen, “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” This statutory definition, which was added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), is central to the ongoing dispute between the agency and the courts over the reach of the 212(h) aggravated felony bar.
The BIA’s Interpretation
The BIA historically has construed the term “admission” to include both inspection and authorization to enter at a port of entry and adjustment of status to lawful permanent resident (“LPR”). More than 20 years ago, in Matter of Rainford, the Board declared that “an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States.” Likewise, in Matter of Rosas, the Board held that noncitizens who are lawfully admitted for permanent residence through adjustment of status are considered to have made an “admission,” because to conclude otherwise would mean that persons who entered without inspection and later adjusted status have never been “admitted,” and in removal proceedings, such persons would be ineligible for certain forms of relief . As the BIA explained, unless adjustment is treated as an “admission,”
an alien who entered without inspection and resided in this country for many years as a permanent resident after adjustment of status … would be ineligible for relief under section 212(c) or 240A(a) because he or she would not be considered to have been “admitted” for permanent residence.
According to the Board, such an interpretation would be inconsistent with the overall structure of the Act.
One effect of the Board’s interpretation, which equates admission at a port of entry with adjustment of status, is to give a broad construction to the aggravated felony bar in INA §212(h). Under this approach, any noncitizen convicted of an aggravated felony after becoming an LPR is rendered ineligible for a 212(h) waiver – whether she acquired LPR status upon being admitted to the U.S. as an immigrant or, alternatively, through adjustment of status after arrival. Over the past few years, this construction of the statute has been consistently spurned by the federal appellate courts. In response to challenges brought by creative immigration litigators, five circuits have flatly rejected the BIA’s expansive reading and another has done so indirectly.
Martinez v. Mukasey and Yin Hing Sum
The first domino to fall was the Fifth Circuit, in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), which held that “for aliens who adjust post-entry to LPR status, § 212(h)’s plain language demonstrates unambiguously Congress’ intent not to bar them from seeking a waiver of inadmissibility.” The court rejected the government’s argument that section 212(h) is ambiguous and thus that the BIA’s interpretation merits “substantial deference” under Chevron. To the contrary, Martinez explicitly declined to follow Rosas and held instead that it was constrained by the plain language of the statute to conclude that LPR “adjustment” does not constitute prior “admission” as an LPR for purposes of INA §212(h).
In a related decision, the Ninth Circuit likewise held that the phrase “lawfully admitted for permanent residence” refers to a “substantively lawful admission for permanent residence,” because “[t]he term ‘lawfully’ denotes compliance with substantive legal requirements, not mere procedural regularity.” In Yin Hing Sum v. Holder, the court distinguished this language from the phrase “previously been admitted” in section 212(h), finding that this refers to a procedurally regular, rather than substantively lawful, admission. And in any event, the plain language of the statute verifies that the terms “admitted” and “admission” refer to “’the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.’” Consequently, Yin Hing Sum supports the view that only a noncitizen who has been admitted to the U.S. as an immigrant – i.e., inspected and authorized to enter the country as an LPR – and subsequently has been convicted of an aggravated felony, is barred from seeking 212(h) relief.
Matter of Koljenovic
In response to Martinez, the BIA issued a decision reaffirming its long-held view that “adjustment” qualifies as “admission” for purposes of triggering the bar in section 212(h). In Koljenovic, the Board declared that “[a]n alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or adjustment of status if the alien is already in the United States.” According to the Board, “[a]djustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace.” Koljenovic sought to reaffirm the BIA’s prior decisions in Rainford and Rosas that “adjustment of status is the functional equivalent of inspection and authorization to enter at the border.”
The Board cited practical considerations for its refusal to change course and defended its long-held interpretation as the only way to avoid “absurd” results. First, because Mr. Koljenovic entered the United States without inspection and later adjusted his status, the BIA argued that “[i]f his 2001 adjustment of status is not considered an admission, he would be in the absurd position of being a lawful permanent resident without ever having been ‘admitted’ in that status” – and thus subject to inadmissibility and ineligible for various forms of relief from removal. Second, the BIA claimed support in the legislative history of INA §212(h) and insisted that a contrary interpretation would “frustrate” Congress’ purported attempt to “create congruity” in the 7-year residency requirements for a 212(h) waiver and LPR cancellation of removal under INA §240A(a). Furthermore, according to the Board, Congress’ amendment of the terms “admitted” and “admission” in INA §101(a)(13) was meant to clarify when a departure from the U.S. is meaningfully interruptive of permanent residence and thereby “address complexities in the law” caused by the “brief, casual, and innocent” test articulated by the Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963).
The BIA also labored to distinguish Martinez, while acknowledging the Fifth Circuit’s clear rejection of Rosas and determination that the plain language of INA §212(h) “demonstrates unambiguously” Congress’ intent not to bar from relief “aliens who adjust post-entry to LPR status.” The Board contended:
However, Martinez did not consider whether the same rule would apply in a case like the respondent’s where the alien was not previously admitted. Indeed, if we were to literally apply the Fifth Circuit’s holding to this case, the respondent would have no admission date at all. Given that the Fifth Circuit did not have to confront the factual scenario presented here, we are not persuaded by respondent’s contention that Martinez should control.
Koljenovic thus sought to limit the impact of Martinez by insisting that its reasoning should apply, at most, to individuals who were “admitted” on nonimmigrant visas and later adjusted to LPR status, but not to those who originally entered without inspection and then adjusted.
Lanier and Bracamontes
Despite the Board’s valiant attempt to reinforce its position, not long after Koljenovic was issued in April 2010, two more federal appellate courts rejected its interpretation of section 212(h). The Eleventh and Fourth Circuits instead concurred with Martinez, in each instance finding that a narrower interpretation of the aggravated felony bar is compelled by the plain language of the statute. These courts agreed that the bar applies only to those noncitizens convicted of an aggravated felony after having been physically admitted to the United States as LPRs (i.e., as immigrants), but not to those who were first admitted as nonimmigrants, or entered without inspection, and later adjusted to LPR status prior to being convicted. The distinction turns on the specific language of section 212(h), which provides that “no waiver shall be granted” to an alien “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” and subsequently convicted of an aggravated felony.
As the Eleventh Circuit explained in Lanier, the term “alien lawfully admitted for permanent residence” is a term of art that “encompasses all persons with lawful permanent resident status,” whether they gained that status through admission on an immigrant visa or after adjustment of status while living in the United States. But the statute clearly bars only those aliens “previously … admitted to the United States as [LPRs]” from section 212(h) relief. Lanier held:
The term “admitted” has expressly been defined by Congress as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A). This definition is limited, and does not encompass a post-entry adjustment of status. … Thus, when the statutory provision is read as a whole, the plain language of §212(h) provides that a person must have physically entered the United States, after inspection, as a lawful permanent resident in order to have “previously been admitted to the United States as an alien lawfully admitted for permanent residence.”
Under this reading, the aggravated felony bar applies only to persons who were admitted as LPRs and later convicted of an aggravated felony. “Based on this unambiguous text,” the court affirmed, “we find that the statutory bar to relief does not apply to those persons who, like Lanier, adjusted to lawful permanent resident status while already living in the United States.”
Soon after Lanier was issued, the Fourth Circuit joined the chorus in Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012). Mr. Bracamontes had entered the U.S. as a temporary resident and subsequently adjusted to LPR status before being convicted of an aggravated felony. Following the lead established in Martinez and Lanier, he argued that his post-entry adjustment did not qualify as an “admission” within the plain meaning of INA §212(h). The Fourth Circuit concurred:
We agree that this reading accords section 212(h) its plain meaning and properly utilizes the definitions of terms Congress provided in the INA, as codified at 8 U.S.C. § 1101. “Admission” and “admitted” are defined as “with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Clearly, neither term includes an adjustment of status; instead, both contemplate a physical crossing of the border following the sanction and approval of United States authorities.
Bracamontes rejected the government’s argument that Congress could not have intended to disrupt the “settled principle” that adjustment of status and inspection and admission are “functionally equivalent,” and thus that the BIA properly found Mr. Bracamontes ineligible for 212(h) relief. The court disparaged “the BIA’s speculation concerning congressional intent” and united with its sister circuits in concluding that “the statute plainly says what it says, and the fact remains that the definition of ‘admission’ provided by Congress simply does not include an adjustment of status.” The government’s tally in the circuits thus far was 0-4.
Matter of E.W. Rodriguez
Undeterred by the drubbing it was taking in the federal courts, the BIA once again defended its approach in Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). The Board conceded, as it must, that it is “obliged to follow” the decisions flatly rejecting Koljenovic in those circuits – the Fifth, the Eleventh, and the Fourth – that have interpreted the 212(h) aggravated felony bar more narrowly based on the plain language of the statute. The Board also retreated from the purported distinction, which it had advanced in Koljenovic, between noncitizens who were originally admitted to the U.S. as nonimmigrants and those who entered without inspection. E.W. Rodriguez conceded that the “breadth” of the Fifth Circuit’s holding compels equal treatment of both categories of individuals, because “[i]n the Martinez court’s view, the section 212(h) aggravated felony bar applies only if the applicant was admitted as a lawful permanent resident at the border, but not if he was merely admitted to lawful permanent resident status.”
Rather than abandon its increasingly untenable interpretation of the aggravated felony bar, however, the BIA announced that it would follow the narrower interpretation only in those circuits where Koljenovic had been explicitly rejected. Elsewhere, because “the language of section 212(h) is ambiguous when understood in the context of the statute taken as a whole,” E.W. Rodriguez insisted that “the proper resolution of that ambiguity is to interpret the statute as barring relief for any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status,” irrespective of whether the individual became an LPR through admission as an immigrant or through adjustment of status.
Hanif, Papazoglou, and Mendoza-Leiba
The BIA was waging a losing battle, however, as two more circuit courts promptly rejected Koljenovic, and the Fourth Circuit made clear that there is no meaningful distinction, for purposes of the aggravated felony bar, between a noncitizen who was originally admitted as a nonimmigrant and later adjusted to LPR status and one who entered without inspection and then adjusted. In Hanif v. Attorney General, the Third Circuit considered the BIA’s approach and conceded that the argument in favor of a broader interpretation of the aggravated felony bar “has some appeal.” But the court disagreed that abiding by the plain meaning of section 212(h) produces an absurd result, because “Congress could have had reasons to treat LPRs differently based on whether or not they were admitted to the United States in that status.” Ultimately, though, Hanif simply concluded that “we cannot substitute our judgment for that of Congress. We can, and in fact, must, give the statute the meaning Congress intended.”
Likewise, the Seventh Circuit in Papazoglou v. Holder found itself bound to apply the statute as written, not as the BIA seemingly wishes it had been written but was not. The court explained:
The government’s interpretation [of INA §212(h)] would conflate two requirements, and preclude waiver whenever a person was lawfully admitted for permanent residence. We will not interpret a statute in a manner that renders part of it irrelevant, particularly where, as here, the statute has an unambiguous meaning if we simply apply the definition provided in the statute itself.
Explicitly agreeing with the other circuits that have rejected the Board’s construction of the aggravated felony bar, the Seventh Circuit held that the plain language of the statute confirms that section 212(h) relief “is precluded only when the person was a lawful permanent resident at the time of his or her lawful entry into the United States.”
Finally, in Mendoza-Leiba v. Holder, the Fourth Circuit sought to resolve any lingering uncertainty over whether there is a meaningful distinction between an LPR who acquired that status after being admitted as a nonimmigrant versus after entering without inspection. The court stated:
The government argues that accepting Mendoza’s interpretation would produce an absurd result in that there is no rational basis for favoring aliens like him, who entered the country illegally and only later obtained their LPR status through adjustment, over those aliens who entered the country illegally. As we have explained, however, that is an argument we specifically rejected in deciding Bracamontes. We are without authority to revisit it here.
What does this all mean for the immigration practitioner whose client needs a 212(h) waiver to overcome inadmissibility due to a criminal conviction – particularly where that conviction qualifies as an aggravated felony? For cases arising in the Third, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits, only those noncitizens who were admitted to the United States as LPRs – i.e., after inspection and authorization at a port of entry – are barred from seeking a waiver under section 212(h). Clients who were originally admitted to the U.S. as nonimmigrants, or who entered the country without inspection, and later adjusted to LPR status before acquiring an aggravated felony conviction are eligible to apply for 212(h) relief. Outside these six circuits, the BIA’s broader interpretation of the bar, as articulated in Koljenovic and E.W. Rodriguez, prohibits any permanent resident convicted of an aggravated felony after acquiring LPR status from seeking a 212(h) waiver. But lawyers in these jurisdictions should continue to press the contrary arguments, until either the circuit court rules favorably or the Board surrenders its indefensible position.
* Thomas K. Ragland is a founding Partner of Benach Ragland LLP in Washington, D.C.
 For conviction of a single crime involving moral turpitude.
 For conviction of two or more crimes for which the aggregate sentences to confinement were 5 years or more.
 For engaging in prostitution.
 For involvement in serious criminal activity and assertion of immunity from prosecution.
 For violation of any law relating to a controlled substance.
 Division C of Pub. L. No. 104-208, 110 Stat. 2009-546.
 See Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated, Aremu v. Dep’t of Homeland Security, 450 F.3d 578 (4th Cir. 2006); Matter of Rosas, 22 I&N Dec. 616 (BIA 1999) (en banc); Matter of Rainford, 20 I&N Dec. 598 (BIA 1992).
 Martinez, 519 F.3d at 546.
 Id. at 543-44; see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984).
 Yin Hing Sum v. Holder, 602 F.3d 1092, 1098 (9th Cir. 2010).
 Id. at 1096 (quoting INA §101(a)(13)(A)).
 Koljenovic, 25 I&N Dec. at 223-25. The issue in Koljenovic is the 7-year continuous residence requirement in INA §212(h), rather than the aggravated felony bar. However, the question posed – whether an alien who became an LPR through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” – is the same.
 25 I&N Dec. at 221 (emphasis added).
 Id. (quoting Martinez, 519 F.3d at 546).
 See Lanier, 631 F.3d at 1366-67; Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012).
 Lanier, 631 F.3d at 1366.
 Lanier, 631 F.3d at 1366-67.
 Bracamontes, 675 F.3d at 382-83.
 E.W. Rodriguez, 25 I&N Dec. at 788.
 Id. at 789 (expressing concern that “refusal to treat adjustment of status as an admission can result in serious incongruities”).
 Hanif v. Att’y Gen. of the United States, 694 F.3d 479 (3d Cir. 2012); Mendoza Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Papazolglou v. Holder, 725 F.3d 790 (7th Cir. 2013).
 Papazoglou v. Holder, 725 F.3d 790, 793-94 (7th Cir. 2013).
 699 F.3d 346 (4th Cir. 2012).
 Id. at 353 (internal citation omitted).