Alien Admitted As Conditional Permanent Resident Is Not Eligible for 212(h) Waiver

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On December 8th 2016, the Ninth Circuit Court of Appeals considered the case of Charles Chukwumeze Eleri, a Nigerian citizen, who was admitted in the United States as a conditional permanent resident. (Eleri v. Sessions, No. 13-73455). The issue was whether Eleri could avoid being removed from the U.S. as a result of his conviction for an aggravated felony.

Conditional permanent resident is generally an alien who gains his permanent residency on the basis of his marriage to a U.S. citizen. If the marriage is less than two years, the green card is issued on a conditional basis for two years. Close to the expiration of the two year period, the alien has to apply to have the conditions removed by showing that his marriage is valid and bona fide and attending an interview.

In this case, Eleri entered the United States as a conditional permanent resident based on his marriage to his first wife, a U.S. citizen. Two years later, he lost his conditional permanent resident status because he did not file an application to have his conditions removed. The government did not start removal proceedings against him until 14 years later, after he was convicted of a rape offense, which was both a crime of moral turpitude and an aggravated felony. Crimes of moral turpitude and aggravated felonies can make immigrants removable from the U.S.

After the removal proceedings against Eleri started, his second U.S. citizen wife filed an I-130 relative petition on his behalf, which was later approved. Eleri sought adjustment of status based on his second marriage to a U.S. citizen during his immigration court hearing. Of course he ran into problems because his crime of moral turpitude made him inadmissible. That meant he could not get a green card without a special permission.

Ordinarily, an adjustment of status applicant with a conviction for a crime of moral turpitude has to apply for a waiver of inadmissibility pursuant to § 1182(h)(1)(B) (“212(h) waiver”). Such waiver will be granted if “the alien’s denial of admission would result in extreme hardship” to his U.S. citizen spouse. § 1182(h)(1)(B).

Unfortunately, the 212(h) waiver is not available to aliens admitted into the U.S. as permanent residents who were convicted of an aggravated felony after their admission. It is important to remember that only those aliens who got their permanent residency prior to or at the time of their physical entry in the U.S. are subject to this bar. If an alien entered in some other status, but later was granted permanent residency while in the U.S., such alien is eligible for a 212(h) waiver.

Eleri in this case obtained his conditional permanent resident status prior to his entry in the U.S. However, he argued that having been admitted as a conditional permanent resident did not count as having a permanent resident status. In other words, he was arguing that permanent residents admitted in the U.S. and convicted of an aggravated felony could not apply for a 212(h) waiver, but conditional permanent residents like him could.

Of course, the Ninth Circuit Court found this argument absurd, and held that an alien admitted as a conditional permanent resident was indeed admitted as a permanent resident for the purposes of the 212(h) waiver. In fact, conditional permanent residents hold the same rights and privileges as full-fledged permanent residents, including the right to reside in the U.S. on a permanent basis as immigrants. The only difference between conditional permanent residents and full permanent resident is that conditional permanent residents have to show that they did not obtain their status as a result of marriage fraud.

The result of the case was that Eleri could not apply for a 212(h) waiver because he was admitted as a permanent resident (even though on a conditional basis) and was later convicted of an aggravated felony.

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