KA A. PAEK, Petitioner
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
Argued June 1, 2015.
On Petition for Review of an Order of the Board of Immigration Appeals. (Agency No.: A042-564-755). Immigration Judge: Honorable Andrew R. Arthur.
Ben Winograd, Esquire (ARGUED), Immigrant & Refugee Appellate Center, LLC, Alexandria, VA; Daniel B. Conklin, The Shagin Law Group, Harrisburg, PA, Counsel for Petitioner Ka A. Paek.
Joyce R. Branda, Esquire, Ernesto H. Molina, Jr., Esquire, Bernard A. Joseph, Esquire (ARGUED), Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, D.C., Counsel for Respondent United States Attorney General.
Before: RENDELL, HARDIMAN, and VANASKIE, Circuit Judges.
RENDELL, Circuit Judge:
We address the proper interpretation of the Immigration and Nationality Act (" INA" )--specifically, whether the conditional nature of an alien's lawful permanent resident status affects his eligibility for a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). Under § 212(h)'s aggravated felony bar, " an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence," who is later convicted of an aggravated felony, is statutorily ineligible for a waiver of inadmissibility. Id. We must decide whether an alien admitted as a lawful permanent resident on a conditional basis (" Conditional LPR" ) qualifies as " an alien lawfully admitted for permanent residence" for purposes of § 212(h). The Board of Immigration Appeals (" BIA" ) answered that question in the affirmative and, therefore, held that Petitioner Ka A. Paek was statutorily ineligible for a § 212(h) waiver because he had committed an aggravated felony after his admission as a Conditional LPR. We agree and will deny the petition for review.
Paek is a native and citizen of South Korea. On June 5, 1991, Paek was admitted to the United States at a port of entry as a Conditional LPR. The basis for Paek's admission was his mother's marriage to a U.S. citizen and member of the U.S. military, thereby qualifying Paek as an " alien son." See INA § 216(h)(2), 8 U.S.C. § 1186a(h)(2) (" The term 'alien son or daughter' means an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise) by virtue of being the son or daughter of an individual through a qualifying marriage." ). Pursuant to § 216(a)(1), an " alien son" " shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis subject to the provisions of this section." INA § 216(a)(1), 8 U.S.C. § 1186a(a)(1).
On July 5, 2000, after an appropriate petition was filed, Paek's immigration status was adjusted. See INA § 216(c)(1), 8 U.S.C. § 1186a(c)(1) (describing the requirements " for the conditional basis . . . for an alien spouse or an alien son or daughter to be removed" ). His status was adjusted to that of a non-conditional lawful permanent resident (" Non-conditional LPR" ).
In 2005 and 2006, Paek was convicted of receiving stolen property, theft, and, relevant here, first degree robbery in violation of Del. Code Ann. tit. 11, § 832(a)(2). After removal proceedings were initiated against him, Paek applied for adjustment of status on the basis of his own marriage to a U.S. citizen. He also sought a waiver of inadmissibility pursuant to § 212(h).
The Immigration Judge (" IJ" ) determined that, inter alia, Paek was statutorily ineligible for a § 212(h) waiver pursuant to the aggravated felony bar:
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 . . . since the date of such admission the alien has been convicted of an aggravated felony . . . .
INA § 212(h), 8 U.S.C. § 1182(h). The IJ determined that Paek's conviction for first degree robbery was an aggravated felony pursuant to INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F), and that Paek was convicted of this aggravated felony after the date he was admitted as a Conditional LPR (i.e., after June 5, 1991). Paek attempted to circumvent the aggravated felony bar by arguing that the ...