May 24, 2019

Tenth Circuit: Waivers of Inadmissibility Only Precluded for Individuals Who Became LPRs at Time of Admission

The Tenth Circuit Court of Appeals issued its opinion in Medina-Rosales v. Holder on Tuesday, February 24, 2015.

Carlos Jovany Medina-Rosales entered the United States at an unknown date and became a lawful permanent resident (LPR) on November 27, 2001. On August 8, 2013, he was convicted of grand larceny in Oklahoma state court, and DHS began removal proceedings a month later. The notice of removal ordered him to appear before an immigration judge in Dallas, even though the issuing officer was in Tulsa. Medina-Rosales appeared in front of the Dallas IJ via videoconference. He conceded removability but sought a waiver of inadmissibility under § 1182(h). The IJ determined Tenth Circuit law applied, despite his physical location in Dallas, and determined Mr. Medina-Rosales was ineligible for a waiver of inadmissibility. The BIA dismissed Mr. Medina-Rosales’ appeal, and Mr. Medina-Rosales petitioned the Tenth Circuit for review.

The Tenth Circuit determined as a preliminary matter that Tenth Circuit law applied, since the charging document determines the location of the proceeding and in this case the charging document was issued in Tulsa. The IJ’s presence in Dallas did not change the location of the proceedings.

The Tenth Circuit next addressed whether § 1182’s waiver of inadmissibility language applies to individuals who became LPRs at some point after admission into the United States. Most circuits to have addressed the issue agree that the plain language of § 1182 contemplates that it only applies to individuals who were admitted at the time they became LPRs, but the Tenth Circuit had not addressed the issue.

After examining the language of § 1182, the Tenth Circuit agreed with the other circuits that the statute only precluded waivers of inadmissibility for those individuals who were admitted at the same time they became LPRs. Because Mr. Medina-Rosales was admitted at some undetermined time prior to becoming an LPR, the language did not apply to him. Despite the seemingly illogical conclusion that Congress intended the statute only to apply to those who were admitted at the same time they became LPRs, the Tenth Circuit found that Congress had ample opportunity to amend the statute and had not done so.

The Tenth Circuit found Mr. Medina-Rosales to be eligible for discretionary consideration of waiver of inadmissibility under § 1182 and remanded for further proceedings.

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