Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568
In re Emeka Kenneth ABOSI, Respondent
File A76 407 054 – Bloomington
Decided June 19, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A returning lawful permanent resident seeking to overcome a ground of inadmissibility
is not required to apply for adjustment of status in conjunction with a waiver of
inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(h) (2000).
FOR RESPONDENT: Herbert A. Igbanugo, Esquire, Minneapolis, Minnesota
BEFORE: Board Panel: OSUNA, Acting Chairman; PAULEY, Board Member;
GUENDELSBERGER, Temporary Board Member
PAULEY, Board Member:
In a decision dated October 13, 2005, an Immigration Judge found the
respondent removable and ineligible for a waiver of inadmissibility under
section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h)
(2000). The respondent has appealed from that decision. The appeal will be
sustained and the record will be remanded to the Immigration Judge for
further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nigeria who is married to a United
States citizen. The record reflects that he adjusted his status to that of a lawful
permanent resident on December 2, 2000, and departed the United States in
May of 2001. Upon his return on January 30, 2002, he was found to be in
possession of a small amount of marijuana, i.e., 0.7 grams, and was issued a
citation for committing a petty misdemeanor in violation of Minnesota law.
The respondent, who later pled guilty to the offense and paid a fine, was
admitted to the United States as a returning lawful permanent resident at that
time. He departed the United States again in August of 2002, but when he
returned on November 6, 2002, he was not admitted because of his prior
controlled substance offense. The respondent was placed in removal
proceedings by the filing of a Notice to Appear (Form I-862), which alleged,
204Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568
inter alia, that he is an arriving alien. He was subsequently charged with being
removable under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) (2000), as an alien convicted of a controlled substance
violation.1 The respondent sought relief in the form of a waiver of
inadmissibility pursuant to section 212(h) of the Act. Relying on 8 C.F.R.
§ 1245.1(f) (2005), the Immigration Judge determined that the respondent was
required to apply for adjustment of status in conjunction with his application
for a waiver under section 212(h) of the Act. However, citing 8 C.F.R.
§ 1245.2 (2005), the Immigration Judge found that the respondent was
ineligible to adjust his status in removal proceedings because he is an arriving
alien. Therefore, because the Immigration Judge did not believe that the
respondent could pursue a waiver under section 212(h) of the Act
independently of an adjustment of status application, he found the respondent
ineligible for the requested waiver.
II. ANALYSIS
Section 212(h) of the Act permits the waiver of certain grounds of
inadmissibility to allow an alien to apply or reapply “for a visa, for admission
to the United States, or adjustment of status.” It does not, on its face, bar
arriving aliens from seeking such relief. Nor does the language of the statute
require the filing of a concurrent application for adjustment of status.
Moreover, 8 C.F.R. § 1245.1(f), the adjustment of status regulation on which
the Immigration Judge relied, clearly applies only to those aliens in the United
States who are seeking to overcome a ground of inadmissibility and are
required to file a concurrent application for adjustment of status in order to
obtain a waiver.2
In no way does it state that an alien like the respondent, who
1 The respondent’s offense, which involved possession of fewer than 30 grams of marijuana,
would not have subjected him to removal while he was still in the United States. See section
237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000).
2 This regulation is in Part 1245 of the Code of Federal Regulations, which is entitled
“Adjustment of Status to that of Person Admitted for Permanent Residence,” and provides,
in relevant part, as follows:
Concurrent applications to overcome grounds of inadmissibility. . . . [A]n application
under this part shall be the sole method of requesting the exercise of discretion under
sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an
alien in the United States.
8 C.F.R. § 1245.1(f) (emphasis added).
205 Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568
is seeking to return to the United States and already has lawful permanent
resident status, must apply for adjustment of status in conjunction with his
waiver request.
The respondent was initially charged with being an arriving alien upon his
return to the United States. See 8 C.F.R. § 1.1(q) (2007) (defining an
“arriving alien” in pertinent part as “an applicant for admission coming or
attempting to come into the United States at a port-of-entry”). However, his
situation is clearly contemplated by section 101(a)(13)(C)(v) of the Act,
8 U.S.C. § 1101(a)(13)(C)(v) (2000).3
In cases such as this, where the
respondent is a returning lawful permanent resident charged with a ground of
inadmissibility, a grant of a 212(h) waiver of inadmissibility simply eliminates
the basis for his inadmissibility and leaves his lawful permanent resident status
intact. See Matter of Millard, 11 I&N Dec. 175, 177-78 (BIA 1965); see also
Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). In this respect it is similar
to a grant of a waiver under former 212(c) of the Act, 8 U.S.C. § 1182(c)
(1988), which “returns an alien to the same lawful permanent resident status
previously held.” Matter of Gordon, 20 I&N Dec. 52, 55 (BIA 1989); see
also Matter of Przygocki, 17 I&N Dec. 361, 364 (BIA 1980). Consequently,
there is no reason to require the respondent to reapply for adjustment of status
in conjunction with a section 212(h) waiver.
Furthermore, we note that the respondent has not lost his lawful permanent
resident status, which is not terminated until a removal order against him
becomes final. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981), aff’d, Lok
v. INS, 681 F.2d 107 (2d Cir.1982) (holding that an act or event that provides
a basis for an alien’s deportation does not in itself terminate his lawful
permanent resident status, which ends, as a result of his commission of a
deportable offense, only upon the entry of a final administrative order of
deportation); 8 C.F.R. § 1.1(p) (stating that the term “lawfully admitted for
permanent residence” means “the status of having been lawfully accorded the
privilege of residing permanently in the United States . . . , such status not
3 Section 101(a)(13)(C) of the Act provides in pertinent part as follows:
An alien lawfully admitted for permanent residence in the United States shall not be
regarded as seeking an admission into the United States for purposes of the
immigration laws unless the alien–
(v) has committed an offense identified in section 212(a)(2), unless since such
offense the alien has been granted relief under section 212(h) . . . .
206 Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568
having changed” and that “[s]uch status terminates upon entry of a final
administrative order of . . . removal”). Therefore, since there is no final order
of removal in this case, the respondent does not need to adjust his status in
order to retain his status as a lawful permanent resident.
We conclude that the respondent is eligible for a waiver under section
212(h) of the Act, which, if granted, would resolve the charge of removability
against him.4
As a returning lawful permanent resident, he is not required to
file an application for adjustment of status in conjunction with his waiver
request. Accordingly, the respondent’s appeal will be sustained and the record
will be remanded to the Immigration Judge for further proceedings.5
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.
4 We note that the Immigration Judge stated in his decision that if the respondent was
determined on appeal to be eligible for a waiver under section 212(h) of the Act, he would
grant the waiver in the exercise of discretion.
5 In light of our disposition of this case, we find it unnecessary to address the respondent’s
motion to remand, which was filed on July 10, 2006.
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