THe Seventh Circuit has joined with the Third, Fourth, Fifth, and Eleventh Circuit Courts of Appeal in ruling that a person who enters the United States and then becomes a lawful permanent resident is barred from seeking a waiver upon committing an aggravated felony or before the the seven years the § 212(h) bars apply only to a person who was admitted to the United States as a lawful permanent resident at a port of entry (i.e. the border or its equivalent such as an airport). They found that the plain meaning of the § 212(h) phrase “previously been admitted to the United States” is to incorporate the statutory definition of “admission” at INA § 101(a)(13)(A), which is “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Adjusting status to permanent residency does not come within that definition, and therefore does not trigger the bars. See Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008); Lanier v. United States AG, 631 F.3d 1361 (11th Cir. 2011); Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012), Hanif v. Holder, –F.3d– (3rd Cir. September 14, 2012).
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Attorney Robert K. O'Reilly