Leiba v. Holder, No. 11-1845

Decided: November 9, 2012

Martin Mendoza Leiba (“Mendoza”) petitioned the Fourth Circuit Court of Appeals to review a decision by the Board of Immigration Appeals (the “Board”). The Board affirmed the ruling of an immigration judge (“IJ”) granting the Department of Homeland Security’s (DHS) motion to pretermit Mendoza’s applications for adjustment of immigration status and for a waiver pursuant to Immigration and Nationality Act (“INA”) § 212(h). The court granted Mendoza’s petition for review.

Mendoza, a native of El Salvador, entered the United States illegally. However, after marrying, Mendoza adjusted his status to that of a lawful permanent resident (“LPR”) in 1995. In 2008, Mendoza was convicted in Virginia state court of receiving stolen property. The DHS sought to deport Menodza pursuant to a federal statute that allows deportation when an alien is convicted of a felony that includes a prison term of at least one year. To avoid deportation, Mendoza filed an application for an adjustment of status and a waiver under INA § 212(h). The DHS then moved to pretermit Mendoza’s application on the ground that his conviction rendered him ineligible for a § 212(h) waiver. The IJ agreed with the DHS and ruled that that an alien convicted of an aggravated felony after obtaining LPR status is ineligible for a § 212(h) waiver. Therefore, the IJ ordered Mendoza’s deportation El Salvador. The Board affirmed the IJ’s decision.

The Court of Appeals explained that the central issue in the case was the interpretation of INA §212(h). Under that section, the Attorney General can grant a waiver against deportation if the alien’s deportation would result in extreme hardship to the alien’s lawfully resident spouse, parent, or child. However, the statute prohibits the Attorney General from granting a waiver to an alien “who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.” The court determined that this language only applied to aliens who had initially lawfully entered into the United States after inspection and authorization by an immigration officer. Thus, the court held that the §212(h) language did not apply to Mendoza because he initially entered the country illegally and only later gained LPR status. Accordingly, the court granted Mendoza’s petition for review.

Full Opinion

-Graham Mitchell

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