Last week, the U.S. Court of Appeals for the Tenth Circuit issued a published decision addressing two vital issues. First, the court clarified which circuit’s law is to apply in removal hearings where the immigration judge is located in a different federal circuit as the migrant. Second, the court adopted an expansive interpretation of an important type of waiver from removal. Medina-Rosales v. Holder, No. 14-9541, slip op. (10th Cir. Feb. 24, 2015). Judge Kelly wrote the panel’s decision.
This case involved an individual who appears to have entered the United States clandestinely, then at some later date became a lawful permanent resident while in the United States through adjustment of status. In 2013, he was convicted of grand larceny in Oklahoma. DHS launched removal proceedings based on this conviction, arguing that this was an aggravated felony. Medina-Rosales conceded that point. His hope was to apply for readmission as an LPR by simultaneously seeking a waiver of inadmissibility under INA § 212(h). Id. at 1-2. This is a common strategy for LPRs with aggravated felony convictions because an aggravated felony is a basis of deportation but not a basis of inadmissibility.
Medina-Rosales’s ability to get a § 212(h) waiver, however, depended on whether he was even eligible. The Board of Immigration Appeals and the federal circuit courts have been engaged in an intense debate about this. At the center of this debate is a single section from § 212(h) that states that a migrant “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” is ineligible for a waiver if “since the date of such admission the alien has been convicted of an aggravated felony.” As I write in my forthcoming book Crimmigration Law (ABA 2015),
Does this mean that all LPRs convicted of an aggravated felony are ineligible? The BIA certainly takes that position. It claims that an LPR with an aggravated felony conviction is ineligible if she entered the United States as an LPR or became an LPR while in the United States through adjustment of status (discussed below). One circuit agrees. Every other circuit to decide the issue, however, takes a contrasting position, holding that migrants who entered the United States as LPRs are subject to § 212(h)’s aggravated felony bar, but those who became LPRs while in the United States through the adjustment of status process are not because they were not “admitted” into the United States as LPRs. Illustrating this reasoning, the Fifth Circuit explained, “for the § 212(h) bar to apply: when the alien is granted permission, after inspection, to enter the United States, he must then be admitted as an LPR.” But, the court added, “for aliens who adjust post-entry to LPR status, § 212(h)’s plain language demonstrates unambiguously Congress’ intent not to bar them from seeking a waiver of inadmissibility.” In this vein, the Sixth Circuit explained that had Congress wanted to bar everyone who becomes an LPR from obtaining a 212(h) waiver, that “result could quite easily have been obtained by saying something much simpler, such as: No waiver shall be granted under this subsection in the case of a lawful permanent resident if…since the date of obtaining such status the alien has been convicted of an aggravated felony.” Congress, of course, did not include such a statement.
Because of this disagreement, it was highly important to Medina-Rosales which circuit’s law the immigration judge applied. Things were complicated, however, by the fact that the IJ was physically located in a different federal circuit than Medina-Rosales and his attorney. The IJ who presided over his hearing was physically located in Dallas, part of the Fifth Circuit. Medina-Rosales and his attorney, however, were physically located in Tulsa, Oklahoma, part of the Tenth Circuit. The hearing was conducted through videoconference equipment as is common in immigration court. Medina-Rosales, No. 14-9541, slip op. at 2-3.
Medina-Rosales argued that the Fifth Circuit’s view of § 212(h) should apply. That’s not surprising because, under the Fifth Circuit’s take, Medina-Rosales was eligible to apply for a § 212(h) waiver. The Tenth Circuit, however, had not decided whether § 212(h) waivers were available to migrants who had become LPR while in the United States as opposed to migrants who had entered the United States as LPRs.
Before deciding the substantive question about § 212(h) eligibility, then, the Tenth Circuit had to decide which circuit’s law applied. The court concluded that its law applies. There is nothing wrong with having an immigration judge in one circuit preside over a removal hearing where the respondent is located in another circuit, the court acknowledged. Nor is it problematic that the Notice to Appear, the document that initiates removal proceedings, was filed in the Dallas immigration court. Medina-Rosales, No. 14-9541, slip op. at 5. The key isn’t where the IJ sits or where the NTA was filed.
What matters most is where the hearing is located. Here the court’s explanation becomes a bit muddled, but I think some sense can be found. The Tenth Circuit explained that “Mr. Medina-Rosales was issued a Notice of Hearing stating that a master hearing would be held before an IJ in Tulsa.” Id. at 2. Later, the court adds, “The charging document establishes the hearing location, regardless of the location of the IJ and the holding of a video conference hearing.” Id. at 5. Combined, I think these two sentences indicate that the hearing location is whatever location DHS tells a migrant to show up at. For Medina-Rosales that was Tulsa, a city within the Tenth Circuit’s jurisdiction.
The court is much clearer about discounting the significance of the IJ’s physical location. According to the court, “The IJ’s presence in Dallas and the fact that proceedings were conducted by video conference did not change the place of the hearings from Tulsa to Dallas.” Id. The IJ’s location, the court appears to say, is largely irrelevant. Because Medina-Rosales was instructed to appear for a hearing in Tulsa and did in act appear in Tulsa, and “[b]ecause Tulsa is in the Tenth Circuit,” the court concludes, “Tenth Circuit law applies.”Id.
Having decided that Tenth Circuit law applies, the court had to then decide what to do about § 212(h) waiver applicability. Would it side with the BIA or with the bulk of the federal courts? It took the latter approach. “[W]e conclude, like the majority of circuits, that only persons who obtained LPR status before or when they entered the United States are barred from seeking a waiver under § 1182(h).” Id. at 9.
See Matter of Rodriguez, 25 I&N Dec. 784, 789 (BIA BIA 2012); see also Matter of Koljenovic, 25 I&N Dec. 219, 225 (BIA 2010) (adopting similar conclusion regarding seven-year continuous residence requirement); Matter of Paek, 26 I&N Dec. 403, 407 (BIA 2014) (same regarding admission as a “conditional permanent resident” under INA § 216(a)).
See Roberts v. Holder, 745 F.3d 928, 932 (8th Cir. 2014).
SeeHusic v. Holder, No. 14607, 2015 WL 106359, at *7 (2d Cir. Jan. 8, 2015); Stanovsek v. Holder, 768 F.3d 515, 517-18 (6th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1054 (9th Cir. 2014); Papazoglou v. Holder, 725 F.3d 790, 794 (7th Cir. 2013); Leiba v. Holder, 699 F.3d 346, 356 (4th Cir. 2012); Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366-67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); see also Hanif v. Attorney General of the U.S., 694 F.3d 479, 484 (3d Cir. 2012) (reaching identical holding regarding seven-year continuous residence requirement).
 Martinez v. Mukasey, 519 F.3d 532, 544, 546 (5th Cir. 2008).
 Stanovsek v. Holder, 768 F.3d 515, 517 (6th Cir. 2014).
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