On September 17, the Board of Immigration Appeals (BIA) — the DOJ appellate tribunal that reviews administrative immigration decisions — issued an opinion in Matter of A-V-O-, concluding that a lawfully admitted nonimmigrant alien who has been convicted of an aggravated felony would be inadmissible and therefore is ineligible for adjustment of status to lawful permanent resident (“LPR”, i.e., “green card holder”). This opinion reverses the BIA’s own 2000 opinion in Matter of Kanga, but more importantly corrects a 26-year-old error and returns the law to something closer to what Congress plainly intended — even if the legislative branch indicated its intentions in an extremely roundabout way.
There’s No Specific “Aggravated Felony” Ground of Inadmissibility
The term “aggravated felony”, defined in section 101(a)(43) of the Immigration and Nationality Act (INA), covers some 30 separate crimes Congress considers so serious that aliens who commit them are barred from most immigration benefits and “relief” from removal under the act.
“Murder, rape, or sexual abuse of a minor” are, not surprisingly, on that list, as are drug and firearm trafficking crimes and certain particularly egregious “crimes of violence” and “theft offenses”.
Aliens convicted of aggravated felonies are deportable under section 237(a)(2)(A)(iii) of the INA, and such convictions bar aliens from receiving asylum pursuant to section 208(b)(2)(B)(i) of the INA, and section 236(c)(1) of the INA mandates the detention, and bars the release of, aliens deportable on aggravated felony grounds.
Importantly, however — and for reasons that aren’t entirely clear — although a conviction for most crimes defined as an aggravated felony would render an alien inadmissible, there’s no “aggravated felony” per se ground of inadmissibility in section 212(a) of the INA.
Here’s an example to make this a little more clear: If an alien were convicted of “murder”, defined for federal purposes at 18 U.S.C. § 1111(a) as “the unlawful killing of a human being with malice aforethought”, and the alien had a green card or had otherwise been lawfully admitted, the alien would be charged with deportability under section 237(a)(2)(A)(iii) of the INA.
If that same alien entered illegally, and had never been admitted, the alien would be charged with inadmissibility under section 212(a)(2)(A)(i)(I) of the INA, as an alien convicted of a “crime involving moral turpitude” or a “CIMT” (and possibly on other grounds).
Not that it makes much difference in most cases, because, as noted, an aggravated felony conviction bars an alien from most forms of discretionary relief from removal.
The Section 212(h) Waiver
“Most”, not all, which brings me to section 212(h) of the INA, also known as the “212(h) waiver”.
That provision allows immigration adjudicators to waive, among other things, CIMT inadmissibility under section 212(a)(2)(A)(i)(I) of the INA, as well as inadmissibility for certain drug crimes, for “multiple criminal convictions”, for “prostitution and commercialized vice”, and for asserting immunity from prosecution for serious criminal activity.
The Congressional Research Service (CRS) explains that this is “one of the most significant authorities that immigration officials may exercise with respect to many of the criminal grounds of inadmissibility”, but also that it “may only be used to waive certain criminal inadmissibility grounds for aliens seeking to enter the United States or to adjust to LPR status” — not to waive crimes for other discretionary forms of relief.
Note, however, that the only reference to “aggravated felony” in section 212(h) of the INA is in the second sentence of the final paragraph, and it states, in pertinent part:
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.
A-V-O-
The respondent, A-V-O-, is a national of Nicaragua who was admitted to the United States 30 years ago, in 1996 on a B-2 nonimmigrant visitor visa, but failed to depart in accordance with the terms of her admission and is still here.
Some 22 years ago, DHS placed her into removal proceedings and charged her with deportability under section 237(a)(1)(B) of the INA, as an alien present in violation of law for failing to depart.
When she failed to appear in removal proceedings in December 2004, the immigration judge ordered her removed in absentia, but she wasn’t deported and never departed.
Instead, she filed a motion to reopen her removal proceedings in March 2019, which the immigration court granted, but it appears that there was some lag time between the reopening and the point at which she pled to the charges of removability.
That may be because in January 2020 she pled guilty in the U.S. District Court for the Southern District of Florida to two separate counts: “Use of Unauthorized Access Device” in violation of 18 U.S.C. § 1029(a)(2) (for which she received eight months); and “Aggravated Identity Theft”, in violation of 18 U.S.C. § 1028A(a)(1) (for which she was sentenced to 24 months).
Consequently, DHS lodged an additional charge of deportability under section 237(a)(2)(A)(iii) of the INA, contending that A-V-O- had been convicted of an aggravated felony as defined in section 101(a)(43)(M)(i) of the INA, an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000”.
She denied the aggravated felony charge, contending the loss associated with her convictions was just $3,450.42, but the immigration judge, after reviewing the conviction documents, concluded she was removable as charged because the loss “tethered to her conviction” was upwards of $345,000.
Adjustment of Status
That was an important — but not necessarily at that point critical — finding because as relief from removal she applied for “adjustment of status” to LPR under section 245(a) of the INA with a 212(h) waiver, as well as for “deferral of removal” under the Convention Against Torture (CAT), a form of humanitarian protection not barred by an aggravated felony conviction.
Section 245(a) of the INA permits the adjudicator to issue permanent resident status (again, a green card) to a temporary nonimmigrant alien who is the beneficiary of an approved immigrant visa petition, without first requiring that alien to depart and consular process abroad.
To be granted adjustment of status, however, the alien must be “admissible to the United States for permanent residence”, that is, not inadmissible under section 212(a) of the INA.
A-V-O-‘s convictions, however, are CIMTs, rendering her inadmissible under section 212(a)(2)(A)(i)(I) of the INA, and therefore to adjust her status she needed to first obtain a 212(h) waiver.
Matter of Kanga
The respondent in Matter of Kanga was a national of Sierra Leone who had entered the United States as a nonimmigrant student, but who was subsequently convicted of a number of fraud-related crimes over a period of more than four years.
She conceded she was deportable on aggravated felony grounds and, as in A-V-O-‘s case, filed an application for adjustment of status based on an immigrant visa petition filed by her U.S.-citizen husband while she was in proceedings with a 212(h) waiver.
As noted above, the only aliens expressly barred from receiving a 212(h) waiver due to an aggravated felony conviction are LPRs, but Kanga had never had a green card before, having entered as a nonimmigrant student.
The immigration judge below, however, agreed with the government that a 212(h) waiver wouldn’t do Kanga any good because she would still be inadmissible — and thus ineligible for adjustment of status — under section 212(a)(8) of the INA.
Captioned “Ineligible for citizenship”, that provision states:
(A) In general: Any immigrant who is permanently ineligible to citizenship is inadmissible.
(B) Draft evaders: Any person who has departed from or who has remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency is inadmissible, except that this subparagraph shall not apply to an alien who at the time of such departure was a nonimmigrant and who is seeking to reenter the United States as a nonimmigrant.
To be fair, and having drafted a number of statutes myself, that’s a confusing provision, because it’s not clear whether all aliens who are “permanently ineligible to citizenship” are inadmissible, or whether “draft evaders” are ineligible to citizenship, or whether draft evaders are the only aliens inadmissible under that provision.
The Board in Matter of Kanga took the third option and found that the only aliens who were inadmissible under section 212(a)(8) of the INA were alien draft dodgers (a class that didn’t include Kanga herself).
“Good Moral Character” and Naturalization
Kanga wasn’t applying for naturalization, of course — she wanted a green card — but here’s why section 212(a)(8) played any role in her case.
The term “ineligible to citizenship” is defined in section 101(a)(19), and most of that definition has to do with aliens “permanently debarred from becoming a citizen of the United States under” two draft-related provisions.
That section, however, has a “catchall phrase” at the end, which reads as follows: “or under any section of this chapter, or any other Act, or under any law amendatory of, supplementary to, or in substitution for, any of such sections or Acts”.
Accordingly, an alien who is “permanently debarred from” becoming a U.S. citizen under the INA falls into the class of aliens who are “ineligible to citizenship”.
Section 316 of the INA lists the requirements LPRs must comply with to be naturalized, and one of those requirements, in paragraph (a)(3), is that the alien “during all the periods referred to has been and still is a person of good moral character”.
Speaking of strangely worded statutes, “good moral character” (GMC) is defined in section 101(f) for purposes of the INA in the negative: instead of explaining what GMC is, it states what GMC is not, or more precisely contains a list of nine conditions that preclude a finding that an alien has GMC.
One of those non-GMC conditions, in section 101(f)(8) of the INA, reads as follows: “one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43))”.
In other words, an alien who has been convicted of an aggravated felony can never show GMC and, most importantly, can never show GMC for purposes of naturalizing under section 316(a)(3) of the INA.
Matter of A-V-O-
Which brings me back to the BIA’s opinion in Matter of A-V-O-, wherein the Board overruled Matter of Kanga and held that an alien who has been convicted of an aggravated felony is inadmissible under section 212(a)(8) of the INA, because the alien can never show GMC and thus cannot be naturalized.
That finding was — as the immigration judge concluded notwithstanding Matter of Kanga — fatal to A-V-O-’s adjustment application, because while section 212(h) permits the court to waive numerous criminal grounds of inadmissibility, the “ineligible to citizenship” ground isn’t one of them.
In reaching its conclusion, the BIA did a deep dive into the history of that ground of inadmissibility, which explains why section 212(a)(8) of the INA is written in such a confusing manner.
Prior to amendments in the Immigration Act of 1990 (IMMACT 90), what is now section 212(a)(8) was section 212(a)(22) of the INA (1952), which rendered the following aliens excludable from the United States:
Aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmigrants; or persons who have departed from or who have remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency, except aliens who were at the time of such departure nonimmigrant aliens and who seek to reenter the United States as nonimmigrants.
In other words, prior to amendment, that ground barred the entry of two separate classes of aliens: those “ineligible to citizenship” and draft evaders.
Nothing suggests that Congress intend to change that in IMMACT 90 — in my opinion, it just got sloppy trying to make the statute more readable, which is always a challenge given how many times the INA has been amended since the law was first promulgated under the Truman administration.
“Thus”, the BIA concluded, “under a plain language analysis of sections 101(a)(19), 212(a)(8)(A), and 316(a) of the INA”, A-V-O-‘s conviction for an aggravated felony “renders her ineligible to naturalize under section 316(a) of the INA”, and she is “therefore ‘permanently debarred’ from citizenship’ and ‘ineligible to citizenship’ as defined in section 101(a)(19) of the INA”.
Kudos
With due respect, the language in those provisions is anything but plain, but in any event, kudos to the Board for slogging its way through them, and for reversing the mistake it made back in 2000.
Because the BIA overruled its prior opinion, however, this new reading of section 212(a)(8)(A) of the INA implicates “retroactivity” issues, and therefore will only apply to “aliens seeking admission as immigrants who incur an aggravated felony conviction based upon a plea of guilty or nolo contendere made, or a jury verdict entered, after the date of” the issuance of Matter of A-V-O-.
The key holding in Matter of A-V-O- is that aliens who have been convicted of aggravated felonies are inadmissible for all purposes under the INA, including when they are attempting to get green cards — even though Congress never expressly stated as much, possibly because it never thought it had to. Sometimes common sense overcomes convoluted legislative drafting.