All circuits to consider the question have held that plain language of the statutory aggravated felony bar to the waiver in INA 212(h) applies only to individuals who entered the United States as lawful permanent residents (LPR), not to those who subsequently adjusted to LPR status. Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); Hanif v. Atty. General of the United States, 694 F.3d 479, 487 (3d Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 386"87 (4th Cir. 2012); Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366"67 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); see also Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir. 2010)(holding respondent was admitted as LPR so later aggravated felony conviction barred 212(h) relief). Thus, the Third, Fourth, Fifth, Seventh, and Eleventh Circuits have held that INA 212(h) precludes a waiver only for those persons who, at the time they lawfully entered into the United States, had attained the status of lawful permanent residents. While the Ninth Circuit considered a slightly different question, its interpretation of the statute is consistent. See Sum, supra, at 1097, citing Martinez, supra, at 546, with approval. Therefore, while there is no Ninth Circuit decision directly on point, it is highly likely that the Ninth Circuit would decide this question consistently with the other five circuits.

The client entered the United States on October 23, 1988, as a refugee, and has never left the country. His LPR status was granted on April 20, 1989. He was therefore never previously . . . admitted to the United States as an alien lawfully admitted for permanent residence . . . . 8 U.S.C. 1182(h)(2)(second to last sentence). Thus, the aggravated felony bar to eligibility for 212(h) relief does not apply to him.

Nonetheless, the clients criminal history constitutes powerful equitable factors that may motivate the immigration authorities to deny the waiver.