The Ninth Circuit Widens INA 212(h) Door For Defense Against Deportation
The crossover between immigration and criminal law continues to plague many immigrant families, often separating loved ones for life.
Once immigrants are charged with having committed an aggravated felony, they are left with limited recourse to relief from deportation and removal.
Meanwhile, changes to deportation law are not on the immigration reform agenda.
Lately, various courts like the Ninth Circuit of Appeals have begun opening doors of hope for such immigrant defendants.
Negrete-Ramirez v. Holder is one such case.
The Ordeal Of Fighting Aggravated Felony Charges
In April 1996, Juana Negrete-Ramirez entered the United States on a visitor visa. Under a process known as adjustment of status, she became a lawful permanent resident.
Four years later, she pled nolo contendre to two counts of committing a lewd act upon a child.
I recall, as a San Diego immigration attorney, at that time there was a general lack of knowledge about aggravated felonies. Given her subsequent actions, it seems likely she was not fully advised about the legal repercussions of her plea.
In 2009, she traveled abroad. On her return, she was stopped at the border by immigration agents based on a check of her criminal record.
The U.S. Border and Customs officers allowed her to return under parole procedures, but she was charged with being inadmissible as an alien convicted of a crime involving moral turpitude. She was placed in immigration removal proceedings to face deportation charges.
At the outset of her case, she attempted to defend herself using a form of deportation relief known as cancellation of removal.
The government, however, contended she was ineligible because her conviction related to an aggravated felony. This automatically precluded her from seeking cancellation of removal relief.
The Board Of Immigration Appeals View Of INA 212(h)
Having failed to successfully cancellation of removal as her defense, Negrete-Ramirez decided to apply for a waiver for inadmissibility under Section 212(h) of the Immigration and Nationality Act. The government again objected.
In the DHS view, she was disqualified under the following provision:
“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 government contended this language disqualified her from 212(h) relief.
For several years, the Board of Immigration Appeals has held the term “admission” under 212(h) means two distinct situations:
- (a) an inspection and authorization to enter at a port of entry as a lawful permanent resident
- (b) the adjustment of status to lawful permanent resident after entry to the United States.
Based on this interpretation, the Immigration Judge found Negrete-Ramirez ineligible for a 212(h) waiver.
She appealed to the Board of Immigration Appeals. After the BIA affirmed the Immigration Judge’s decision, she turned to the Ninth Circuit Court of Appeals.
The Ninth Circuit Distinguishes Two Types Of Admission
In its Negrete-Ramirez v. Holder opinion, the Ninth Circuit strongly disagreed with the BIA.
The Immigration and Nationality Act defines “admitted” and “admission” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”
These terms, stressed the Court, do not apply to post-entry actions.
On the other hand, the Ninth Circuit noted, an alien is “lawfully admitted for permanent residence” when the alien has been “lawfully accorded the privilege of residing permanently in the United States as an immigrant.”
This is a post-entry event.
As a result, the Court concluded the bar for seeking a waiver for inadmissibility under 212(h) “does not apply to persons who adjusted to lawful permanent resident status after having entered into the United States by inspection.”
The Ninth Circuit’s ruling means only immigrants who are admitted to the United States as lawful permanent residents at a port of entry are not allowed to seek a 212(h) waiver.
Because Negrete-Ramirez had adjusted her status to being a lawful permanent resident after entering, the 212(h) restriction does not apply to her.
Accordingly, the Court remanded the matter to the BIA with instructions to send the case back to the Immigration Judge allowing Negrete-Ramirez to apply for relief under INA 212(h).
The Battle Over INA 212(h) Is Not Over
In reaching this decision, the Ninth Circuit added its voice to those of the Third, Fourth, Fifth, Seventh, and Eleventh Circuit Court of Appeals regarding the proper interpretation of 212(h) relief eligibility.
Unfortunately, this view is still not universally accepted by all judicial districts across the land.
I anticipate, as an immigration appeals lawyer, my colleagues in those districts will soon add their voices to this battle.
Given the government’s insistence on fighting this issue, despite several losses, it would not surprise me if DHS raises the matter before the Supreme Court.
By Carlos Batara, Immigration Law, Policy, And Politics