Unpub. BIA Remand Victory: Using Martinez v. Mukasey

Unpub. BIA Remand Victory: Using Martinez v. Mukasey

"[I]n Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), the United States Court of Appeals for the Fifth Circuit reached a different result than that reached by this Board in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) (LJ. at 6-7). The Fifth Circuit determined that the statutory bar on section 212(h) waiver eligibility, pertaining to any alien who has previously been admitted to the United States as a lawful permanent resident and who, since the date of that admission, has been convicted of an aggravated felony, applies only to aliens who, at the time of their admission, were admitted as lawful permanent residents. The Fifth Circuit found that the section 212(h) bar did not apply to an alien whose status was adjusted to that of lawful permanent resident several years after his admission to this country.  We find that the respondent is not precluded from applying for a waiver of inadmissibility because his case is governed by Martinez v. Mukasey, supra. The alien in Martinez v. Mukasey was initially admitted to the United States as a nonimmigrant visitor. In the present case, by contrast, the respondent entered without inspection and had no prior admissions before he adjusted status. Thus, he has never effected an "admission" for purposes of sections 212(h) of the Act, based on the Martinez v. Mukasey rationale. We view the holding in Martinez v. Mukasey as expansive enough to cover the different facts in the case now before us. It follows that, if adjustment of status is not considered an admission, this respondent is not prevented from applying for a waiver of inadmissability pursuant to Martinez v. Mukasey, even if he has been convicted of an aggravated felony. Accordingly, we will sustain the appeal and will remand the record to allow the respondent to demonstrate that he is otherwise eligible for a waiver of inadmissibility under section 212(h) of the Act."

Matter of X-, Oct. 3, 2011.