Martinez v. Attorney General of the United States, No. 11-2258; Third Circuit, opinion by Jones, U.S.D.J.; filed September 6, 2012. Before Judges McKee and Hardiman, and Jones, District Judge, sitting by designation. On petition for review of a final order of the Board of Immigration Appeals. [Sat below: Judge Reichenberg.] DDS No. 51-8-7639 [14 pp.]

Petitioner Erasmo Martinez, a native of Nicaragua, entered the United States without inspection in 1985. In October 1989, he married a U.S. citizen, with whom he has a child. Martinez began the process of adjusting his status to lawful permanent resident (LPR).

On Dec. 7, 1990, Martinez pleaded guilty to sexual assault of his then-8-year-old stepdaughter. In early 1991, after his plea but prior to his sentencing, Martinez traveled to Nicaragua to complete the immigrant visa application process. His application was approved on March 5, 1991, and Martinez was admitted to the United States as a permanent resident. Two weeks later, he was sentenced to four years in prison. Martinez was released on parole in 1992.

The Department of Homeland Security (DHS) initiated removal proceedings in 2009. Martinez conceded that he was removable for having been convicted of an aggravated felony. Martinez argued, however, that he was eligible for adjustment of status under former § 212(c) of the Immigration and Nationality Act (INA). DHS found, and the immigration judge (IJ) agreed, that Martinez was not eligible for a § 212(c) waiver because he had not been “lawfully admitted for permanent residence” in that he had not disclosed his prior arrest and guilty plea.

Martinez then sought to readjust his status under INA § 212(h)(1)(A), which allows for adjustment of alien status by the spouse, parent, son or daughter of a U.S. citizen where denial of adjustment would constitute extreme hardship. Section 212(h) bars from status adjustment a noncitizen who has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” but later is convicted of an aggravated felony. Martinez argued this bar could not apply to him because he was inadmissible at the time he was granted LPR status due to his failure to disclose his prior arrest and guilty plea.

The IJ found that while substantive satisfaction of LPR status was a requirement for a § 212(c) waiver, the absence of such satisfaction did not equate to waiver of the § 212(h) bar. The IJ held that the Board of Immigration Appeals’ (BIA) decision in In re Ayala-Arevalo controlled and Martinez was ineligible for § 212(h) relief. In Ayala, the BIA rejected the petitioner’s argument — identical to Martinez’s position — that the waiver bar did not apply to him, finding that Ayala’s criminal activity at the time of admission did not alter the fact that when he entered, it was in the status of a lawful permanent resident.

Martinez appealed. The BIA found Martinez was ineligible for § 212(c) relief because he had “never been lawfully admitted for permanent residence,” but he was also ineligible for § 212(h) relief because although Martinez has never been lawfully admitted for permanent residence in a substantive manner, he had previously been “admitted,” even if that admission has subsequently been determined to have been in violation of the law.

Martinez filed a petition for review of the § 212(h) waiver question.

Held: Martinez’s aggravated felony conviction rendered him ineligible for a waiver of inadmissibility under § 212(h). The prohibition of status adjustment holds, and the petition for review is denied.

This appeal presents a question of first impression in the Third Circuit: whether someone who was accorded the designation of “lawfully admitted for permanent residence” status on physical entry into the United States, but who did not substantively qualify for such status, is barred from § 212(h) relief.

Section 212(h) provides one of the few avenues of relief for noncitizens who would otherwise be eligible to adjust their immigration status but for certain grounds of inadmissibility, such as moral turpitude. In 1996, as part of a larger immigration reform initiative, Congress amended the statute to render fewer LPRs eligible for the § 212(h) waiver. The statute currently provides that “[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … since the date of such admission the alien has been convicted of an aggravated felony….”

Martinez’s appeal rests on whether, despite his arrest and guilty plea prior to adjusting to LPR status, he is eligible to seek § 212(h) relief. Martinez contends that because he attained LPR status through fraud or misrepresentation, he was never lawfully admitted and thus § 212(h) cannot bar his status adjustment.

The INA defines “admitted” as the “lawful entry of the alien into the United States after inspection and authorization by an immigration officer” — in other words, a procedurally regular admission into the United States, not necessarily a substantively lawful one. The term “lawfully admitted for permanent residence,” in turn, is defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” Thus, an alien permitted to enter the United States by an immigration officer has been “admitted” even if he did not meet the substantive legal requirements for admission at that time, although he was not “lawfully admitted for permanent residence” under the INA unless he were substantively in compliance with those admission requirements.

Section 212(h)’s statutory language, construction and evolution make clear that “admission” and “admitted” refer, as in the INA’s definition, to inspection and authorization by any immigration officer at the port of entry. As Martinez was admitted following such procedures, after failing to disclose his arrest and conviction for an aggravated felony, the § 212(h) waiver bar applies.

For petitioner — Raquiba Huq, Claudine Langrin, Timothy Block, Shifra Rubin, Melville D. Miller Jr. and Whitney Elliott (Legal Services of New Jersey). For respondent — Tony West, David V. Bernal and Stuart S. Nickum (U.S. Department of Justice, Office of Immigration Litigation).