Matter of Rodriguez, 25 I&N Dec. 784 (BIA 2012) (in removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section 212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired); reaffirming Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010).

Practice Advisory. This decision is wrong and should be fought. First the BIA is wrong, and the Fourth, Fifth, Ninth, and Eleventh Circuits are right about the meaning of the INA 212(h) language. Those circuits found that the plain language of the statute requires the person to have been admitted at the border as an LPR in order for the bars to apply. The BIA's analysis in Matter of Koljenovic is innocent. Second, the BIA was wrong to not include the Ninth Circuit among the others who have upheld this ruling. In recent Ninth Circuit Sum decision, the holding was that admission at the border as an LPR still triggers the bar, even if the person was actually inadmissible at that admission. However, the court based the holding on its careful analysis of the 212(h) language, which necessarily included a finding that the language refers to admission as an LPR at the border.

Although the Rodriguez case involved someone who entered without inspection and then adjusted (the situation in Koljenovic), the decision appears to state that the bar applies to everyone. The BIA has the power to make dictum statements and thereby announce a new rule. Thanks to Katherine Brady.