Leiba v. Holder: Aggravated felony bar in INA 212(h) inapplicable to those who were never “admitted”
The following is a brief discussion of the recent fourth circuit case of Leiba v. Holder. Said case is controlling in the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia but can be used as a persuasive authority throughout the United States.
Immigration and Nationality Act (INA) 212(h) is a law that permits individuals to request a waiver of certain criminal conviction/s. Hence, an individual who would otherwise be ineligible for adjustment of status (to become a lawful permanent resident or “greencard” holder) because of a criminal conviction or convictions can request a waiver of the conviction/s and obtain lawful permanent resident status.
INA 212(h) states in part as follow:
“No waiver shall be granted .. 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.”
At first glance, this language would appear to bar lawful permanent residents who are convicted of an aggravated felony from seeking relief under INA 212(h). Aggravated felonies are typically the more serious convictions for instance, murder, rape, drug offenses, crimes of violence, and certain theft offenses, among other crimes.
However, Leiba v. Holder has held that an individual who enters the United States illegally and subsequently adjusts status to that of a lawful permanent resident while still in the U.S. and who does not exit and re-enter the U.S. is eligible to apply for relief under INA 212(h) even if convicted of an aggravated felony. The reasoning behind the holding of the Court stems from the Court’s definition of “admission.” The Court reasoned that if an individual entered the U.S. illegally and never subsequently entered the U.S. legally then the individual has never been “admitted” and as such the bar against aggravated felons cannot be applied. Note that the Court distinguished between the term “admission” and the phrase “admitted for permanent residence.”
The decision of Leiba v. Holder is extremely important for lawful permanent residents who have been convicted of an aggravated felony in that it opens an avenue of relief that would otherwise be unavailable to them. You should consult with a qualified immigration attorney to see if you may benefit from the holding of Leiba v. Holder and to prepare and argue the strengths in your specific case.