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Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
DoYUtL CaAtu
Donna Carr
Chief Clerk
Enclosure
I
Panel Members:
Mullane, Hugh G.
Malphrus, Garry D.
1d
Creppy, Michael J.
www.irac.net/unpublished/index/
IJ
Cite as: Mohammad Jashim Reza, A0093 304 084 (BIA July 18, 2016)
U.S. n'epartment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
CHARGE:
The respondent, a native and citizen of Bangladesh, appeals from the Immigration Judge's
January 19, 2016, decision 1 pretermitting his applications for adjustment of status and waivers of
inadmissibility. Sections --2.ffi.:,:..and 245(a) of the Immigration and Nationality Act,
8 U.S.C. 1182(h), 1182(i), 1255(a). The Department of Homeland Security opposes the
appeal. The record will be remanded.
We review for clear error the findings of fact, inclug.i!lg th_ ds!termination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
We will remand the record for further consideration of the respondent's applications for
relief. The Immigration Judge pretermitted the respondent's application for a waiver of
inadmissibility under section 212(h) of the Act, which provides, inter alia, that, "No 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 either since the date of
1
The Immigration Judge issued two decisions in this case on January 19, 2016. In one decision,
she pretermitted the respondent's applications for relief; in the other, she ordered him removed.
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In this opinion, we refer only to the Immigration Judge's decision in whi siie:pretemuttedthe
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respondent's applications.
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Cite as: Mohammad Jashim Reza, A0093 304 084 (BIA July 18, 2016)
-1 A093 304 084
such admission the alien has been convicted of an aggravated felony ... " She concluded that as
an alien convicted of an aggravated felony, the respondent was unable to establish eligibility for
a section 212(h) waiver. because he is "an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent residence."2
The Immigration Judge's decision correctly indicates that the respondent's adjustment of
We disagree with the Immigration Judge that the respondent was admitted as an alien
lawfully admitted for permanent residence for the purposes of section 212(h) of the Act. The
respondent's 2009 return to the United States as a lawful permanent resident, when it was
undisputed that he was not then seeking admission, did not result in his being admitted at that
time as an alien lawfully admitted for permanent residence. See section 101(a)(13)(C) of the Act
(providing that subject to certain exceptions not applicable in this case, an alien lawfully
admitted for permanent residence in the United States is not regarded as seeking admission into
the United States for the purposes of the immigration laws). Accordingly, he is not per se
ineligible for a waiver of inadmissibility under section 212(h) of the Act as a result of his later
conviction for an aggravated felony. We will therefore remand the record to the Immigration
Judge for further consideration of the respondent's applications for adjustment of status and
waivers of inadmissibility under sections 212(h) and (i) of the Act. We express no opinion at
this time on the merits of the respondent's applications.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.
2
The respondent does not dispute that he has been convicted of an aggravated felony under
sections 101(a)(43)(M) and (U) of the Act and has conceded that he is removable as a result of
this conviction (I.J. at 2; Tr. at 4).
Cite as: Mohammad Jashim Reza, A0093 304 084 (BIA July 18, 2016)