PAEK

Cite as 

 (BIA 2014)                                 Interim Decision #3813




                    Matter of Ka A. PAEK, Respondent
                            Decided September 17, 2014
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

   An alien who was admitted to the United States at a port of entry as a conditional
permanent resident pursuant to section 216(a) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who
is barred from establishing eligibility for a waiver of inadmissibility under section 212(h)
of the Act, 

(h) (2012), if he or she was subsequently convicted of an
aggravated felony.
FOR RESPONDENT: Daniel B. Conklin, Esquire, Harrisburg, Pennsylvania; Benjamin
Ross Winograd, Esquire, Alexandria, Virginia1
FOR THE DEPARTMENT OF HOMELAND SECURITY:                             Richard S. O’Brian,
Assistant Chief Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER,
Board Member; MANUEL, Temporary Board Member.
GUENDELSBERGER, Board Member:


    In a decision dated January 8, 2014, an Immigration Judge found the
respondent removable under sections 237(a)(2)(A)(ii) and (iii) of the
Immigration and Nationality Act, 

(a)(2)(A)(ii) and (iii)
(2012), as an alien convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct and an aggravated
felony. The Immigration Judge also found that because the respondent was
convicted of an aggravated felony after his admission at a port of entry as
a conditional permanent resident, he was ineligible for a waiver of
inadmissibility under section 212(h) of the Act, 

(h) (2012),
and was therefore also ineligible for adjustment of status pursuant to
section 245(a) of the Act, 

(a) (2012). The respondent has
appealed from that decision, contesting only the denial of his request for
relief from removal. The appeal will be dismissed.
    The respondent is a native and citizen of South Korea who was admitted
to the United States in 1991 at a port of entry as a conditional permanent
1
   We acknowledge and appreciate the pro bono representation of counsel and
co-counsel before the Immigration Court and the Board in this case.


                                           403
Cite as 

 (BIA 2014)                                 Interim Decision #3813




resident pursuant to section 216(a) of the Act, 8 U.S.C. § 1186a(a) (1988).2
He was subsequently convicted of receiving stolen property, a theft offense,
and robbery in 2005 and 2006, and removal proceedings were initiated in
July 2013. At his hearing before the Immigration Judge, the respondent
applied for adjustment of status on the basis of his marriage to a
United States citizen. Because of his convictions, he also sought a waiver
of inadmissibility under section 212(h) of the Act. The Immigration Judge
determined that the respondent was convicted of an aggravated felony after
his admission as a conditional permanent resident and was therefore barred
from establishing eligibility for a section 212(h) waiver. We agree.
    Section 212(h) of the Act includes the following proviso, which is
known as the aggravated felony bar:
      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 . . . .

(Emphasis added.)3 The only issue on appeal is whether the aggravated
felony bar applies to an alien who was admitted at a port of entry as
a conditional permanent resident under section 216(a) of the Act. More
precisely, the question is whether the respondent is an alien who has
previously been “admitted to the United States as an alien lawfully
admitted for permanent residence” based on his admission to the
United States at a port of entry as a conditional permanent resident.
    The United States Court of Appeals for the Third Circuit, in whose
jurisdiction this case arises, has held that the phrase “admitted to the
2
    Section 216 was added to the Act by the Immigration Marriage Fraud Amendments of
1986, 

 Stat. 3537, as part of a comprehensive scheme to deter
immigration-related marriage fraud. Under that section, a spouse, son, or daughter who
obtains lawful permanent resident status on the basis of a marriage not yet of 24 months’
duration is considered to have obtained that status on a conditional basis. Sections
216(a)(1), (h) of the Act. A petition to remove the conditional basis of that status must be
filed during the 90-day period preceding the second anniversary of the grant of
conditional permanent resident status. Sections 216(c)(1), (d)(2) of the Act. Upon
approval of the joint petition, the Department of Homeland Security removes the
conditional basis of the alien’s permanent resident status. Section 216(c)(3)(B) of the
Act; 

(d)(1) (2014).
3
    The aggravated felony bar was added to section 212(h) by section 348(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546, 3009-639, in part to resolve questions regarding the
equal treatment of aliens based on whether or not they had departed from the
United States. See Matter of Yeung, 

, 611–12, 613 (BIA 1996, 1997)
(en banc).


                                           404
Cite as 

 (BIA 2014)                               Interim Decision #3813




United States as an alien lawfully admitted for permanent residence” in the
aggravated felony bar of section 212(h) does not apply to an alien who
entered without inspection and then adjusted to lawful permanent resident
status.4 Hanif v. Att’y Gen. of U.S., 

 (3d Cir. 2012). As the
court in Hanif explained:

        Congress clearly only placed limitations on waivers available to aliens who were
      previously admitted as an alien lawfully admitted for permanent residence. This
      phrase requires not only a prior admission to the United States, but also that the
      prior admission has been made while the alien was in the status of a lawful
      permanent resident. We perceive no other meaning from the language of the
      statute.

.5
    There is no dispute that the respondent was “admitted” to the
United States at a port of entry in 1991, so we need only determine
whether the phrase “lawfully admitted for permanent residence” in section
212(h) of the Act includes his admission as a conditional permanent
resident under section 216(a).6

4
    Several other circuit courts have concluded that the aggravated felony bar in section
212(h) is inapplicable to aliens who entered the United States without inspection or were
admitted at a port of entry in a status other than that of a lawful permanent resident.
See Negrete-Ramirez v. Holder, 

, 1050−54 (9th Cir. 2014); Papazoglou
v. Holder, 

, 793−94 (7th Cir. 2013); Bracamontes v. Holder, 

,
385−89 (4th Cir. 2012); Lanier v. U.S. Att’y Gen., 

, 1365−67 (11th Cir.
2011); Martinez v. Mukasey, 

 (5th Cir. 2008). However, in Roberts
v. Holder, 

, 932−34 (8th Cir. 2014), the Eighth Circuit rejected the approach
taken by those circuits and instead endorsed our interpretation in Matter of E.W.
Rodriguez, 

 (BIA 2012), which held that the section 212(h) waiver
is unavailable “for any alien who has been convicted of an aggravated felony after
acquiring lawful permanent resident status, without regard to the manner in which such
status was acquired.”
5
    Under Hanif, an alien who entered the United States without inspection, or one who
was initially admitted to the United States in nonimmigrant status and subsequently
adjusted to conditional permanent resident status, would not be subject to the aggravated
felony bar in section 212(h) of the Act because the initial admission would not have been
at a port of entry as a lawful permanent resident.
6
    The record contains conflicting evidence regarding whether the conditions on the
respondent’s lawful permanent resident status were eventually removed under the
procedure provided in section 216(c) of the Act or whether he adjusted status based on
a subsequently filed visa petition. In either event, the result in this case would not be
affected, because the Immigration Judge’s finding that the respondent was initially
admitted as a conditional permanent resident under section 216(a) of the Act is not
disputed.


                                          405
Cite as 

 (BIA 2014)                                Interim Decision #3813




    The plain language of section 216 of the Act establishes that an alien
admitted as a conditional permanent resident is “lawfully admitted for
permanent residence” as defined in section 101(a)(20) of the Act, 

(a)(20) (2012), and incorporated into section 212(h) of the Act.
Section 101(a)(20) defines the phrase “lawfully admitted for permanent
residence” to mean

     the status of having been lawfully accorded the privilege of residing permanently in
     the United States as an immigrant in accordance with the immigration laws, such
     status not having changed.

    Section 216(a)(1) of the Act, which provides as follows, clearly includes
aliens who are admitted on a conditional basis within the category of aliens
who are “lawfully admitted for permanent residence”:

       Notwithstanding any other provision of this Act, an alien spouse (as defined in
     subsection (h)(1)) and an alien son or daughter (as defined in subsection (h)(2))
     shall be considered, at the time of obtaining the status of an alien lawfully admitted
     for permanent residence, to have obtained such status on a conditional basis
     subject to the provisions of this section.

(Emphasis added.)
    The language in other provisions of section 216 also makes clear that
permanent resident status is obtained on the date of an alien’s initial
admission as a conditional permanent resident. For example, section
216(a)(2)(A) provides notice requirements regarding the removal of the
conditions that are imposed on an alien spouse, son, or daughter at the time
he or she “obtains permanent resident status on a conditional basis under
paragraph (1).” Similarly, section 216(c)(3)(B), which governs the removal
of conditions of admission after approval of a joint petition, states that the
conditional basis of the alien’s status is removed “effective as of the second
anniversary of the alien’s obtaining the status of lawful admission for
permanent residence.” (Emphasis added.)
    Moreover, the terms “alien spouse” and “alien son or daughter,” which
are defined in sections 216(h)(1) and (2) of the Act, include “an alien who
obtains the status of an alien lawfully admitted for permanent residence
(whether on a conditional basis or otherwise).” (Emphasis added.) Section
216(e), which addresses eligibility for naturalization, also specifies that an
alien admitted as a conditional permanent resident “shall be considered to
have been admitted as an alien lawfully admitted for permanent residence
and to be in the United States as an alien lawfully admitted to the
United States for permanent residence.” (Emphasis added.) Thus, although
an alien may be admitted pursuant to section 216 on a conditional basis,

                                          406
Cite as 

 (BIA 2014)                                  Interim Decision #3813




under the plain language of that section, such an admission is nonetheless
an admission “as an alien lawfully admitted for permanent residence.”
   Were there any doubt concerning the meaning of the statute, the
regulations implementing section 216 of the Act define a “conditional
permanent resident” as

     an alien who has been lawfully admitted for permanent residence within the
     meaning of section 101(a)(20) of the Act, except that a conditional permanent
     resident is also subject to the conditions and responsibilities set forth in section 216
     or 216A of the Act, whichever is applicable, and part 216 of this chapter.

, 1216.1 (2014) (emphasis added). The regulations also
specify that conditional permanent residents are afforded “the privilege of
residing permanently in the United States as an immigrant in accordance
with the immigration laws, such status not having changed.” 

, 1216.1.
    Finally, in the context of eligibility for a section 212(c) waiver, the
Third Circuit held that a “conditional permanent resident” obtains “lawful
permanent resident” status at the time of his or her initial admission.
Gallimore v. Att’y Gen. of U.S., 

 (3d Cir. 2010). After
considering the language of section 216 and the corresponding regulation at

, the court concluded that the Act “thus equates conditional
[lawful permanent residents] with ‘full-fledged’ [lawful permanent
residents], except to the extent—but only to the extent—that [section 216]
prescribes additional obligations.” 

    Because the respondent was admitted to the United States in 1991 at
a port of entry as a “conditional permanent resident,” he was admitted as an
alien “lawfully admitted for permanent residence” within the meaning of
sections 101(a)(20) and 212(h) of the Act. The Immigration Judge properly
determined that the respondent is subject to the aggravated felony bar and is
therefore statutorily ineligible for a section 212(h) waiver. Accordingly,
the respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.




                                           407