An alien "has previously been admitted to the United States as an alien lawfully admitted for permanent residence" within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.
Cite as 27 I&N Dec. 138 (BIA 2017) Interim Decision #3905
138
Matter of Giovanni Rosalia VELLA, Respondent
Decided October 13, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien “has previously been admitted to the United States as an alien lawfully admitted
for permanent residence” within the meaning of section 212(h) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and
physically entered the country as a lawful permanent resident at any time in the past, even
if such admission was not the alien’s most recent acquisition of lawful permanent resident
status.
FOR RESPONDENT: Matthew L. Guadagno, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Mary Ellen Withrow,
Assistant Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated April 10, 2017, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted
of an aggravated felony, determined that he is ineligible for a waiver of
inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2012),
and adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a)
(2012), and ordered him removed from the United States.1 The respondent
has appealed from that decision. The appeal will be dismissed. The
respondent’s request for oral argument is denied.
The respondent is a native and citizen of Italy who was admitted to the
United States as a lawful permanent resident at a port of entry on October 8,
1967. On September 24, 2007, he was convicted of conspiracy to operate an
illegal gambling business in violation of 18 U.S.C. §§ 371 and 1955 (2006).
In 2009, the Department of Homeland Security (“DHS”) issued a notice to
appear charging him with removability based on his conviction for an
aggravated felony under sections 101(a)(43)(J) and (U) of the Act, 8 U.S.C.
1 The Immigration Judge’s decision incorporates by reference a prior decision that was
entered on March 2, 2017.
Cite as 27 I&N Dec. 138 (BIA 2017) Interim Decision #3905
139
§§ 1101(a)(43)(J) and (U) (2006). The respondent conceded his
removability, and on August 26, 2009, the Immigration Judge granted him
adjustment of status.2
On February 3, 2015, the respondent was convicted of conspiracy to
commit extortion in violation of 18 U.S.C. § 1951(a) (2012). A new notice
to appear was issued, and in a decision dated July 12, 2016, the Immigration
Judge found that the respondent’s conviction was for an aggravated felony
“crime of violence” under 18 U.S.C. § 16(b) (2012). On December 14, 2016,
we vacated that decision and remanded the record for further proceedings
because the United States Court of Appeals for the Third Circuit, in whose
jurisdiction this case arises, had held that Ҥ 16(b) is unconstitutionally
vague.” Baptiste v. U.S. Att’y Gen., 841 F.3d 601, 621 (3d Cir. 2016).
On remand, the DHS lodged additional charges of removability, alleging
that the respondent is removable as an alien convicted of conspiracy to
commit an aggravated felony theft offense under sections 101(a)(43)(G) and
(U) of the Act. The Immigration Judge sustained the charge, and the
respondent has not contested his removability. Therefore, the only issue on
appeal is whether the respondent is eligible for a waiver of inadmissibility
under section 212(h), which is required to establish his eligibility for
adjustment of status.3
Section 212(h) of the Act provides in relevant part as follows:
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 . . . .
The Immigration Judge determined that the respondent is ineligible for a
section 212(h) waiver because he had “previously been admitted to the
United States as an alien lawfully admitted for permanent residence” in 1967
and was subsequently convicted of an aggravated felony. The respondent
does not deny that he was convicted of an aggravated felony after he was
inspected, admitted, and physically entered the country as a lawful
permanent resident. Instead, he argues that the word “previously” in section
2 Although the respondent conceded that he was removable because his 2007 gambling
conviction was for an aggravated felony, that offense was not a crime involving moral
turpitude. See Matter of Gaglioti, 10 I&N Dec. 719, 720 (BIA 1964) (“Violations of
gaming laws do not ordinarily involve moral turpitude.”). Further, a conviction for an
aggravated felony is not a ground of inadmissibility. Therefore, no waiver was required
for the respondent to adjust his status.
3 The respondent does not dispute that his 2015 extortion conviction is for a crime
involving moral turpitude, which renders him inadmissible and therefore ineligible for
adjustment of status absent a section 212(h) waiver.
Cite as 27 I&N Dec. 138 (BIA 2017) Interim Decision #3905
140
212(h) refers only to the most recent time he obtained lawful permanent
resident status, which was in 2009 when he was granted adjustment of status.
The Second Circuit directly addressed this issue in Dobrova v. Holder,
607 F.3d 297 (2d Cir. 2010). In that case, the alien was admitted to the
United States as a lawful permanent resident at a port of entry and was
subsequently convicted of an aggravated felony, for which he was deported.
Years later, he reentered the country by presenting his “defunct permanent
resident card” and was charged with removability because he had been
admitted as a lawful permanent resident in a status to which he was not
entitled. Id. at 299. He argued that he was not barred from establishing
eligibility for a section 212(h) waiver because the word “previously” related
only to his most recent entry, which was not a lawful admission.
Considering “the plain meaning” of the statutory text and “the ordinary,
common meaning of ‘previously,’” the court stated that this word “does not
commonly refer to the most recent occurrence of action, but to action that
has taken place sometime in the indefinite past.” Id. at 301. The court
additionally concluded that
Congress’s use of the present perfect tense [in section 212(h)]—“has . . . been
admitted”—is significant here. . . . Use of this tense evinces Congress’s intent to
include any previous admission for lawful permanent residence within the ambit of
Section 212(h), including admission in the indefinite past. . . . As explained, the
present perfect tense can refer either to a time in the indefinite past or a past action
that has continuing relevance—that “comes up to and touches the present.” Use of
“previously” in Section 212(h) therefore clarifies that the statute does not apply only
to aliens who were and still are admitted as [lawful permanent residents], but also to
those who were at some earlier time admitted as [lawful permanent residents] . . . .
Id. at 301–02. Like the Second Circuit, we have considered the plain
meaning of the statute, and we find the court’s reasoning to be persuasive.
However, even if the statutory language was ambiguous, we would adopt the
court’s view as the most reasonable interpretation of the statute.4
4 In addition to its statutory analysis, the court further observed that
[u]nder [the alien’s] suggested interpretation of Section 212(h), any alien who was
admitted as [a lawful permanent resident] but who subsequently committed an
aggravated felony, was ordered removed from the country, and then entered again
illegally, would not be statutorily precluded from seeking a waiver of inadmissibility
on the basis of this conviction. Yet if that same alien had remained outside the
country he would be ineligible for such relief. We do not think that Congress
intended an interpretation that rewards an alien for reentering the country illegally
after being removed.
Cite as 27 I&N Dec. 138 (BIA 2017) Interim Decision #3905
141
Applying the Second Circuit’s analysis, we conclude that the respondent
is ineligible for a section 212(h) waiver. He admits that he was inspected,
admitted, and physically entered the country as a lawful permanent resident
after consular processing abroad in 1967 and that his 2007 and 2015 offenses
are aggravated felonies. Therefore, the respondent is “an alien who has
previously been admitted to the United States as an alien lawfully admitted
for permanent residence” and has subsequently “been convicted of an
aggravated felony” under section 212(h) of the Act. His 2009 adjustment of
status does not preclude a finding that he is ineligible for a waiver under this
provision. 5 The law of the Third Circuit supports this conclusion. See
Taveras v. Att’y Gen. of U.S., 731 F.3d 281, 290 (3d Cir. 2013) (“The words
‘entry’ and ‘into’ plainly indicate that ‘admission’ involves physical entrance
into the country, which is inapposite to adjustment of status in removal
proceedings, a procedure that is structured to take place entirely within the
United States.”).
Finally, the respondent argues that interpreting section 212(h) as
rendering him ineligible for a waiver because he initially obtained lawful
permanent resident status through consular processing rather than adjustment
would violate his constitutional rights to due process and equal protection.
Contrary to the respondent’s assertions, we do not have authority to address
this question. See Matter of G-K-, 26 I&N Dec. 88, 96 (BIA 2013) (“Neither
the Board nor the Immigration Judges have the authority to rule on the
constitutionality of the statutes we administer . . . .”).
The respondent is ineligible for a section 212(h) waiver and does not seek
any other relief from removal. Accordingly, his appeal will be dismissed.
ORDER: The appeal is dismissed.
Dobrova, 607 F.3d at 302. We also consider it unlikely that Congress intended to allow an
alien, who would otherwise be barred from seeking a section 212(h) waiver, to be eligible
to waive a second offense merely because he had previously been permitted to adjust his
status to avoid removal based on his conviction for a prior offense.
5 The respondent argues that his adjustment does not disqualify him from establishing
eligibility for a waiver because section 212(h) requires an “admission” for permanent
residence after consular processing abroad. In Matter of J-H-J-, 26 I&N Dec. 563, 564
(BIA 2015), we agreed with a number of circuit courts, including the Third Circuit, in
holding that the aggravated felony bar in section 212(h) does not apply to an alien who
adjusted his status in the United States and has not entered as a lawful permanent resident.
See Hanif v. Att’y Gen. of U.S., 694 F.3d 479, 484 (3d Cir. 2012). However, because the
respondent was lawfully admitted for permanent residence before he adjusted his status,
those decisions are not applicable.