BIA Finds § 212(h) Waiver Not Available to Overcome Bar to Cancellation of Removal

Matter of BUSTAMANTE, 25 I&N Dec. 564 (BIA 2011)

The bar to cancellation of removal in section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), which precludes an alien who has been convicted of an offense under section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006), from establishing eligibility for relief, may not be overcome by a waiver under section 212(h) of the Act.

The BIA concluded that INA §212(h) cannot waive the effect of a conviction for a controlled substance violation to overcome the bar to cancellation of removal under §240A(b)(1)(C), and dismissed the appeal.
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The Board of Immigration Appeals (BIA or Board) has held, in Matter of Bustamante, 25 I. & N. Dec. 564 (B.I.A. July 13, 2011), that the bar to cancellation of removal in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)] (2006), which precludes an alien who has been convicted of an offense under INA § 212(a)(2) [8 USCA § 1182(a)(2)] (2006) from establishing eligibility for relief, may not be overcome by a waiver under INA § 212(h) [8 USCA § 1182(h)]. The respondent is a native and citizen of Mexico who entered the U.S. without having been admitted or paroled. In April 2008, he was convicted of possession of not more than 20 grams of marijuana in violation of Fla. Stat. § 893.13(6)(b). Removal proceedings were initiated against the respondent, charging him under INA § 212(a)(6)(A)(i) as an alien who is present in the U.S. without having been admitted or paroled. At a hearing before an immigration judge (IJ), the respondent conceded that he is removable and sought to apply for cancellation of removal under INA § 240A(b). The Department of Homeland Security (DHS) argued that the respondent was ineligible for that relief because he was barred under INA § 240A(b)(1)(C) as a result of his conviction for a controlled substance violation, which was an offense under INA § 212(a)(2)(A)(i)(II). The respondent requested a waiver under INA § 212(h) to overcome the statutory bar. The IJ determined that a waiver under INA § 212(h) would not eliminate the legal effect of the conviction for purposes of INA § 240A(b)(1)(C). The IJ found the respondent ineligible for cancellation of removal and ordered him removed from the U.S. The respondent has appealed, arguing that the IJ erred in denying the application for cancellation of removal. The respondent asserted that because cancellation of removal is a form of adjustment of status, an INA § 212(h) waiver should remove the legal effect of his conviction in the same manner that it waives a ground of inadmissibility that would otherwise render an alien ineligible for adjustment of status under INA § 245 [8 USCA § 1255] (2006).

In an opinion written by Board Member Linda S. Wendtland, in which Board Members Roger Pauley and Anne J. Greer joined, the Board began its analysis by setting out the relevant statutory provisions. It noted that INA § 240A(b)(1) states: The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-- (C) has not been convicted of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3) of the Act Additionally, the Board set out the relevant language for INA § 212(a)(2)(A)(i): [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-- (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. [§ ] 802)), is inadmissible.

The Board also made note of INA § 212(h), in relevant part: The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana... (Emphasis added by the Board.)

The Board found that while INA § 212(h) is ambiguous with regard to its inadmissibility waiver provision, INA § 240A(b)(1)(C) was quite clear, requiring that an applicant demonstrate he was not convicted of an offense under INA § 212(a)(2). The Board opined that “while section 240A(b)(1)(C) clearly references the fact of a conviction, we conclude that section 212(h) is properly interpreted as not waiving the fact of a conviction, but instead as waiving only grounds of inadmissibility arising from a conviction, as well as from other actions involving criminal conduct.” The Board reasoned that it has historically held that INA § 212(h) has applied to overcoming grounds of inadmissibility that would otherwise preclude an alien from obtaining admission or adjustment of status under INA § 245. The Board also observed that, in contrast to this language, Congress has specifically exempted persons with convictions under INA § 212(a)(2) from being eligible for cancellation of removal by the language it used in crafting INA § 240A(b)(1)(C). The Board opined that the language “indicates that the bar does not depend in any way on a determination of inadmissibility or removability or ‘the application of’ a ground of inadmissibility. Instead, it directly references only convictions that are covered within the cross-referenced provisions.”

The Board also found support for its position in the fact that Congress used different language in another cancellation of removal provision, that found in INA § 240A(b)(2)(A)(iv), relating to the eligibility requirements for cancellation of removal for a battered spouse or child. There, Congress included language that related to inadmissibility and deportability, unlike in the provision at issue in this case.

Additional support for its position was found in a recent decision by the U.S. Court of Appeals for the Seventh Circuit, Barma v. Holder, 640 F.3d 749 (7th Cir. 2011). In Barma, the Seventh Circuit found that, based on language in INA § 240A(b)(1)(C), “the alien, who was convicted of possession of drug paraphernalia, was convicted of an offense under section 212(a)(2) and was therefore ineligible for cancellation of removal based on his conviction.” That court concluded that the waiver in § 212(h) was applicable to grounds of inadmissibility but not to cancellation of removal. The Seventh Circuit relied in part on a decision by the U.S. Court of Appeals for the Ninth Circuit, Sanchez v. Holder, 560 F.3d 1028, 1032 (9th Cir. 2009), which concluded that “[a] statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal.”

The Board concluded that the provisions for cancellation of removal require that the seeker be free from one of the enumerated convictions and that the convictions are not waivable. Further, it found that § 212(h)'s waiver applies only to waive the inadmissibility, not the actual conviction. The Board concluded:

"As an alien who was convicted of a controlled substance violation, the respondent has been “convicted of an offense under” section 212(a)(2)(A)(i)(II) of the Act. He is therefore barred from establishing eligibility for cancellation of removal under section 240A(b)(1)(C) of the Act. We agree with the Immigration Judge that a section 212(h) waiver is not available to overcome that bar. Accordingly, the respondent's appeal will be dismissed. Given our disposition, we need not address the remaining arguments presented on appeal."