March 4, 2015

Washington, D.C.–Last week, the American Immigration Council and the American Immigration Lawyers Association (AILA) urged two Courts of Appeals to interpret different provisions of the Immigration and Nationality Act (INA) in accordance with Congress’s intent to provide noncitizens a path to lawful status. 

Scope of the § 212(h) aggravated felony bar

In Mansfield v. Holder, No. 13-2876 (8th Cir.), the Council urged the Eighth Circuit Court of Appeals to vacateRoberts v. Holder, 745 F.3d 928 (8th Cir. 2014). Roberts stands alone – out of the ten Circuits to address the issue – in holding that the aggravated felony bar in INA § 212(h) applies to all lawful permanent residents (LPR) regardless of the manner in which they gained LPR status. The nine other courts of appeals have held that Congress intended the bar to apply only to individuals who were admitted to the United States as LPRs and not to those who adjusted to LPR status following their admission. The majority view allows a greater number of LPRs to avoid deportation if they can demonstrate to an immigration judge that their removal will result in extreme hardship to close family members in the United States. Read here for more on this topic. 

Adjustment of status for certain TPS recipients who entered the U.S. without inspection

In Ramirez v. Dougherty, No. 14-35633, the Council argued that the Ninth Circuit should uphold the decision of the district court and find that a TPS recipient who is otherwise eligible to adjust status may do so even if he entered the United State without inspection. The amicus brief explains that Congress created a legal fiction under which a TPS recipient is “considered” to be in lawful nonimmigrant status for “purposes of adjustment of status.” Because an admission is a necessary prerequisite to lawful immigrant status, the recipient must also be “considered” admitted for purposes of adjustment of status. As such, the admission requirement of INA § 245(a) is satisfied, notwithstanding the individual’s initial entry without inspection. This interpretation has been upheld by the Sixth Circuit and a district court in Pennsylvania. Read here for more about these cases.