On October 3, 2017, the Board of Immigration Appeals (BIA or Board) ruled on the appeal of a respondent held by the Immigration Judge (IJ) to be ineligible for a waiver of inadmissibility under INA § 212(h) and ordered removed. Respondent had been admitted to the U.S. as a lawful permanent resident (LPR), subsequently convicted of conspiracy to operate an illegal gambling business in violation of federal law, placed into removal proceedings as an aggravated felon, then granted adjustment of status (AOS) by the IJ. Five and a-half years later, he was convicted of conspiracy to commit extortion (another federal crime), placed back into proceedings, which went up to and were remanded by the BIA, after which DHS lodged the additional charge of having been convicted of conspiracy to commit an aggravated felony theft offense per INA §§ 101(a)(43)(J) and (U). The IJ found respondent ineligible for a § 212(h) waiver, filed as part of his second AOS application, holding he had “previously been admitted to the United States as an alien lawfully admitted for permanent residence” at his very first admission and subsequently convicted of an aggravated felony. Respondent argued that the word “previously” in § 212(h) referred only to the most recent time he obtained LPR status.
The BIA initially cited to Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) which considered “the ordinary, common meaning” of “previously” in the statute and held that it did not refer to the most recent action, “but to action that has taken place sometime in the indefinite past.” Applying the Second Circuit’s analysis, the Board concluded that respondent is not eligible for the waiver as he first entered the country as a LPR after inspection and admission following consular processing abroad and was then convicted of aggravated felonies. He therefore qualified as one who has “previously been admitted” to the U.S. “as an alien lawfully admitted for permanent residence” and subsequently “convicted of an aggravated felony” under INA § 212(h). His AOS in court, held the BIA, did not preclude this finding of ineligibility. The appeal was dismissed. Matter of Vella, 27 I&N Dec. 138 (BIA 2017).