Immigration Appeals Board Makes Significant Ruling on Returning Permanent Residents

The Board of Immigration Appeals issued a favorable decision in June that also set a precedent regarding lawful permanent residents.  In Matter of Abosi, the Board decided that a returning lawful permanent (LPR) resident seeking to overcome a ground of inadmissibility is not required to apply for adjustment of status in conjunction with a waiver of inadmissibility under.  

The respondent, Mr. Abosi is a native of Nigeria married to a U.S. citizen. He adjusted his status to that of an LPR on December 2, 2000, and departed the United States in May of 2001. Upon his return on January 30, 2002, he was found to be in possession of 0.7 grams of marijuana and was issued a citation for committing a petty misdemeanor in violation of Minnesota law.

Abosi was admitted to the U.S. as a returning LPR at that time, and he later pled guilty to the offense and paid a fine. He departed the United States again in August of 2002, but when he returned in November of the same year, he was not admitted because of his prior controlled-substance offense. Instead, he was placed in deportation proceedings. The notice to appear alleged that he was an arriving alien. He was subsequently charged with being removable as an alien convicted of a controlled-substance violation.

Abosi, who could not have been removable for possession of such a small amount of marijuana, sought relief in the form of a waiver. The immigration judge determined that Abosi was required to apply for Adjustment of Order Status in conjunction with his waiver application. But the judge found Abosi ineligible to adjust his status in removal proceedings because he was an arriving alien. Therefore, because the judge did not believe that Abosi could pursue a waiver independently of an AOS application, he found Abosi ineligible for the requested waiver. Abosi appealed.

In sustaining the appeal, the Immigration Board explained that the law permits the waiver of certain grounds of inadmissibility to allow an alien to apply or reapply "for a visa, for admission to the United States, or adjustment of status," but does not, on its face, bar arriving aliens from seeking such relief, nor does it require the filing of a concurrent application for AOS.

In addition, the board pointed out that that only applies to those aliens in the United States who are seeking to overcome a ground of inadmissibility and are required to file a concurrent application for AOS in order to obtain a waiver. In no way, the board said, does it state that an alien like Abosi, who is seeking to return to the United States and already has permanent resident status, must apply for AOS in conjunction with his waiver request.

Rather, the board went on, in cases such as this, where the respondent is a returning LPR charged with a ground of inadmissibility, a grant of a waiver of inadmissibility simply eliminates the basis for his inadmissibility and leaves his LPR status intact.

In this respect, the board explained, it is similar to a grant of a waiver under a 1988 law that "returns an alien to the same lawful permanent resident status previously held." Therefore, there was no need for Abosi to apply for AOS in conjunction with his waiver application. The board also pointed out that Abosi had not lost his legal status, which could only happen if and when a final deportation order was issued. 

The board concluded that Abosi was eligible to apply for a waiver, which, if granted, would resolve the charge of deportation against him, and that no AOS application was required. The board remanded the case to the immigration judge for further proceedings. The board also noted in a footnote that the judge had stated in his earlier decision that if Abosi were eligible for the waiver, he would grant the waiver as a matter of discretion.

The Board’s decision in Abosi’s case paves the way for other lawful permanent residents who are returning to the United States under similar circumstances.  

Herbert A. Igbanugo, of Igbanugo Partners International Law Firm, PLLC, represented Abosi.

About Igbanugo Partners International Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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