Effect of INA 240A(a) on Post-Waiver Admissibility

De Hoyos v. Mukasey
--- F.3d ----, 2008 WL 5120768 (C.A.5)
De Hoyos became an LPR in 1993.
On May 16, 2000, De Hoyos was convicted of possession of marijuana in an amount greater than 50 pounds, a second degree felony under the Texas Controlled Substances Act. De Hoyos was later placed in removal proceedings, sought cancellation of removal under INA § 240A(a), and was granted this form of relief by an Immigration Judge on April 24, 2001.
On October 29, 2004 and December 10, 2004, De Hoyos was convicted of stealing several cases of beer. De Hoyos was placed in removal proceedings for a second time. He was charged with removability under INA § 237(a)(2)(A)(ii) – two previous convictions for CIMTs not arising out of a single scheme of conduct. The charge was sustained. As relief from removal De Hoyos sought adjustment of status, coupled with a waiver under INA § 212(h). The waiver was intended to avoid a finding of inadmissibility for the two CIMTs, and allow De Hoyos to adjust status. INA § 212(a)(2)(A)(i)(I). The IJ denied De Hoyos's application for adjustment of status, finding him inadmissible under INA § 212(a)(2)(A)(i)(II) – inadmissibility due to a controlled substance offense. The BIA affirmed.
The Court of Appeals for the Fifth Circuit (CA5) denied De Hoyos's petition for review, on what seems to be different grounds. Citing Matter of Balderas, 20 I. & N. Dec. 389 (BIA 1991), the CA5 held that “a conviction that was the focus of a previous waiver under § 212(c) may still be grounds of inadmissibility that statutorily precludes an alien's acquisition of § 212(h) relief in further removal proceedings. Furthermore, we agree with the IJ that “[a]lthough the Balderas decision applied to the predecessor of § 240A (former § 212(c)), the Board's rationale applies with equal force to the effect of cancellation of removal on an underlying conviction.”
NOTE: The CA5 held that De Hoyos was inadmissible and that he was ineligible for a § 212(h) waiver because of his conviction for possession of marijuana in an amount greater than 50 pounds. This is an incorrect application of Matter of Balderas. Under this decision a grant of § 212(c) waiver with regard to a conviction has the following effects:
Waiver of the finding of excludability or deportability stemming from the respective criminal conviction. Id. At 391;
If the alien is charged with excludability (charges under § 212(a)(2)) and obtains a § 212(c) waiver, the waiver is also granted as to deportability (charges under § 237(a)). If the alien is charged with deportability and obtains a § 212(c) waiver, the waiver is also granted as to excludability. “We believe that if [§ 212(c)] is exercised to waive a ground of inadmissibility based upon a criminal conviction, a deportation proceeding cannot thereafter be properly instituted based upon the same criminal conviction unless, of course, the Attorney General has revoked the previous grant of relief.” Matter of G-A-, 74 I. & N. Dec. 274, 275 (BIA 1956). “[I]f a single act can be the basis of both excludability and deportability, and excludability is waived by the Attorney General, then that act, without more, cannot be the basis of a deportation charge.” Matter of Mascorro-Perales, 12 I. & N. Dec. 228 (BIA 1967;
Once a waiver of excludability or deportability for certain acts was granted, that waiver would remain effective for all subsequent entries. “To require an alien who has been granted a waiver (…) to reapply on each re-entry after a temporary absence would constitute an undue burden, curtail the beneficial effects of this remedial legislation, and unduly hamper travel. It is concluded, therefore, that during such time as the order granting the waiver remains unrevoked, it be regarded as in full force and effect as to any subsequent entries if no new grounds for excludability have arisen, and the alien is complying with the conditions under which the waiver was granted. In such circumstances, no new application for waiver of excludability is required.” Matter of P-, 10 I. & N. Dec. 1 (BIA 1957).
Once the waiver is granted, the alien cannot be found to be subject to removal for the exact same crime, based on the exact same ground of removal that was initially charged by the Government. In Matter of Mascorro-Perales, an alien was granted a waiver under INA § 212(h), after having been placed in removal proceedings and charged with committing a CIMT. The waiver was granted. The alien was later convicted for a second CIMT, and removal proceedings were again initiated. In these proceedings the charge of removability was different (two CIMTs), but was partially based on the alien's first conviction. “Respondent was granted a waiver of excludability on the basis of a single conviction for crime involving moral turpitude, and that waiver has been honored. By the waiver, his 1961 return to the United States was legalized, and he was placed in the same situation as if he had not left the country. He was not deportable for having been excludable, and not deportable on the basis of the conviction itself. However, respondent has now become deportable because of his own act, because of his commission (and conviction of) a second crime involving moral turpitude. He is not deportable for having committed the original crime, but for having been convicted of two crimes, both involving moral turpitude.” “A grant of a waiver of inadmissibility under section 212(c) of the Act fully returns an alien to the same lawful permanent resident status previously held. Matter of Przygocki. Once a waiver of inadmissibility is granted with respect to certain crimes, deportation proceedings must be initiated anew to consider subsequent offenses... This grant of section 212(c) relief restored the respondent to his previous status of that of an alien lawfully admitted for permanent residence. The waiver did not carry with it the condition that if the respondent were convicted of another crime in the future, he would be subject to deportation on the same grounds already waived.” Matter of Gordon, 20 I. & N. Dec. 52, 55-56 (BIA 1989).
The IJ, BIA, and CA5 decided that De Hoyos is inadmissible because of his conviction for possession of marijuana in an amount greater than 50 pounds. INA § 212(a)(2)(A)(i)(II). This conviction had previously been used by the Government as the basis for a charge of deportability, but was waived by an Immigration Judge after De Hoyos sought Cancellation of Removal. INA § 240A(a). This holding is incorrect under Mascorro-Perales and Gordon. See numeral 4 above.
Of course, I might be missing something.