A waiver of removal under INA § 212(h) is not available to an individual who committed an aggravated felony within five years of having previously been “admitted” to the United States as a lawful permanent resident. The Council, with AILA, filed amicus briefs in numerous Courts of Appeals, successfully arguing that the § 212(h) bar to waiver eligibility applies only to noncitizens who were admitted in LPR status at a port of entry, as distinct from those who adjusted to LPR status post-entry.
The Council, with AILA, filed amicus briefs in the Second, Third, Fourth, Sixth, Seventh, Eighth, and Tenth Circuits urging the courts to find, consistent with the INA definition of the term “admitted,” that the § 212(h) bar to eligibility applies only to noncitizens who were admitted in LPR status at a port of entry, as distinct from those who adjusted to LPR status post-entry. All but one of these courts agreed with this interpretation. In May 2015, in Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), the BIA acquiesced to the majority opinion and withdrew its earlier precedent decisions which held otherwise. Husic v. Holder, 776 F.3d 59 (2d Cir. 2015) is one of the cases in which the Council was involved.
