Miami Immigration Lawyers Blog

The Board of Immigration Appeals in Matter of E. W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) issued a bright-line holding that in the Fourth, Fifth, and Eleventh Circuits an aggravated felony conviction precludes the availability of a waiver under section 212(h) only if the conviction occurred after the person was admitted to the United States as a lawful permanent resident after inspection at a port of entry.

This means that the persons before the Immigration Courts within the jurisdictions of the Fourth, Fifth and Eleventh Circuits, who adjusted their status in the United States after entering in another status or without inspection, an aggravated felony does not preclude them from applying for a waiver under 212(h). The BIA clarified that the prohibition from eligibility under 212(h) remains intact in all the other circuits for all persons who are lawful permanent residents regardless of whether the persons adjusted their status in the United States or were admitted to the United States as lawful permanent residents.

It appears from the BIA's decision in Matter of E.W. Rodriguez that the Respondent was applying for adjustment of status with a waiver for an aggravated felony conviction. The Immigration Judge erroneously found that the Respondent was ineligible, even though he adjusted status to that of a lawful permanent resident after already being present in the United States pursuant to an entry without inspection. It appears that the Respondent was required to reapply for adjustment of status instead of simply filing a stand-alone waiver.

Many Immigration Judges and Immigration Prosecutors have taken the position that a standalone waiver cannot be submitted. According to them, a waiver must be made in conjunction with an application for adjustment of status. This in complete contradiction to the interpretation of the Eleventh Circuit's position in Lanier v. U.S Attorney General, 631 F.3d 1363 (11th Cir. 2011). The Eleventh Circuit in Lanier citing to Yeung v. I.N.S., 76 F.3rd 337 (11th Cir. 1995) noted in footnote one that the waiver is available to individuals in removal proceedings.

This means that the waiver should be available as a stand-alone application. This is extremely important to argue in Immigration Court considering that many individuals may not have the ability to reapply for adjustment of status in removal proceedings where, for example, there is no longer an immediately available petitioner. These individuals will have no choice but to file a standalone waiver. This undoubtedly will be a heavily litigated issue since many Immigration Judges do not agree with the interpretation of the Eleventh Circuit's position.

For more information regarding waivers, contact Antonio G. Revilla at (305) 858-2323.

About Revilla Law Firm, P.A.
Antonio Revilla is a Former U.S. Immigration Prosecutor and Miami Immigration Lawyer. Mr. Revilla founded his immigration law practice, Revilla Law Firm, when he saw a dire need for aggressive immigration representation and deportation defense in order to keep families united.

If you wish to receive more information about any immigration issue, you can contact Revilla Law Firm at 305-858-2323 to speak with Antonio Revilla.

For more information, contact Antonio G. Revilla at (305) 858-2323.

About Revilla Law Firm, P.A.
Antonio Revilla is a Former U.S. Immigration Prosecutor and Miami Immigration Lawyer. Mr. Revilla founded his immigration law practice, Revilla Law Firm, when he saw a dire need for aggressive immigration representation and deportation defense in order to keep families united.

If you wish to receive more information about any immigration issue, you can contact Revilla Law Firm at 305-858-2323 to speak with Antonio Revilla.