AILA and the American Immigration Council Filed an Amicus Brief arguing that an individual who adjusts to LPR status after entering the U.S. is eligible for a 212(h) waiver because the individual is not “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence”.
In this case, the Petitioner claims statutory eligibility for a waiver under Section 212(h) of the Immigration and Nationality Act (INA), 8 USC Section 1182(h). This issue is one of importance to Lawful Permanent Residents (LPRs) whose removal from the United States could cause extreme hardship to their U.S. citizen or lawfully residing spouses, parents or children. Based on the plain text of the statute and applying the statutory definition of the relevant terms, five courts of appeals have unanimously held that the penultimate sentence of Section 1182(h) applies only to noncitizens who were admitted in LPR status at a Port of Entry, as distinct from those who adjusted to LPR status after being admitted to the United States.
The Amicus Brief argues that Congress unmistakably sought to describe only noncitizens admitted in LPR status at a port of entry when it chose the statutory language “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence”. If Congress intended this to apply to all LPRs, lawmakers easily could have written the statute to accomplish such a result.
The five Courts of Appeals that have rejected the BIA’s interpretation all recognize plausible reasons why Congress chose to distinguish between LPRs based on the manner in which their status was accorded.
For the reasons set forth above, the Amici respectfully request that the Court follow the Third, Fourth, Fifth, Seventh and Eleventh Circuits in rejecting the Board of Immigration Appeals’ interpretation of 8 USC Section 1182(h).
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