"It is thus unclear whether the BIA’s current interpretation of § 212(h)—that an alien seeking § 212(h) relief who has not filed an adjustment of status application must remain “outside our borders while applying for relief”—overrules Sanchez, or if the BIA’s current interpretation essentially functions as a continuation of its precedent under Sanchez, in which case the BIA would treat an alien satisfying the conditions of Sanchez as if the alien were “outside our borders while applying for relief.” This is “an area of law where uniformity is particularly important.” Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir. 1993) (en banc). “When the BIA has not spoken on a matter that statutes place primarily in agency hands, our ordinary rule is to remand to give the BIA the opportunity to address the matter in the first instance in light of its own experience.” Negusie v. Holder, 555 U.S. 511, 517, 129 S.Ct. 1159, 1164, 173 L.Ed.2d 20 (2009) (internal quotation marks omitted). We therefore remand to the BIA for the purpose of allowing it to consider Lawal’s case in light of our intervening decision in Poveda and—if the BIA deems that Sanchez is not overruled—to apply Sanchez to Lawal’s case if the BIA finds that it is applicable. The BIA also found that Lawal was ineligible for a § 212(h) waiver under the BIA’s comparable grounds rule. In Matter of Blake, 23 I. & N. Dec. 722, 729 (BIA 2005), the BIA held that an alien who was deportable based on a charge of deportability to which there was no comparable ground of inadmissibility was ineligible for a waiver under former § 212(c) of the Immigration and Nationality Act. The BIA applied this comparable grounds rule to Lawal in the context of his application for a § 212(h) waiver and found that no comparable ground of inadmissibility existed. The Supreme Court, however, has recently struck down the BIA’s comparable grounds rule as arbitrary and capricious. Judulang v. Holder, 132 S.Ct. 476, 477, 181 L.Ed.2d 449 (2011). Accordingly, on remand, the BIA is also to reconsider Lawal’s case in light of the Supreme Court’s holding in Judulang. VACATED and REMANDED." - Lawal v. U.S. Attorney General, Feb. 28, 2013.
Hats off to appointed counsel John L. Fortuna in King & Spalding's Atlanta office!