The Sixth Circuit Joins Growing Majority, Rejects BIA’s Narrow Interpretation of Section 212(h)

The Sixth Circuit Joins Growing Majority, Rejects BIA’s Narrow Interpretation of Section 212(h)

September 25, 2014

Washington, D.C.—Wednesday, the U.S. Court of Appeals for the Sixth Circuit issued a precedent decision that will allow a greater number of lawful permanent residents (LPRs) to avoid deportation if they can demonstrate to an immigration judge that their removal will result in extreme hardship to close family members in the United States. The American Immigration Council, which filed an amicus brief in the case, applauds the ruling and repeats its call for the Board of Immigration Appeals (BIA) to overturn its contrary decision in Matter of Koljenovic, 25 I&N Dec. 219 (2010).

With this decision, the Sixth Circuit joins the Third, Fourth, Fifth, Seventh, Ninth and Eleventh Circuits in holding that the bar to a waiver under § 212(h) of the Immigration and Nationality Act (INA) applies only to those persons with an aggravated felony conviction who became Legal Permanent Resident’s (LPR) at the time that they lawfully entered the United States. The Court found that Congress specifically intended to preserve the waiver for those who adjusted to LPR status following their entry into the U.S. For many LPRs facing removal, the § 212(h) waiver is the only means to avoid separation from U.S. family members.

The beneficiary of today’s decision, Robert Michael Stanovsek, a citizen of Australia, was admitted to the United States on a nonimmigrant visitor visa in 1990 and later became an LPR based upon his marriage to a U.S. citizen. He subsequently was convicted of the offense of aggravated theft, and was sentenced to three years of imprisonment. By overruling Matter of Koljenovic, the Sixth Circuit’s ruling will allow Stanovsek to present evidence to an immigration judge demonstrating the hardship that his removal would cause to his U.S. citizen wife and children.

The case is Stanovsek v. Holder, No.13-3279. Thomas E. Moseley represented the petitioner.

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