COURT UPHOLDS RIGHT TO WAIVER OF DEPORTATION FOR UNDOCUMENTED IMMIGRANT

Martin Mendoza Leiba (“Mendoza”) entered the country without documents from El Salvador. He got married in 1994. He and his wife have five children. In 1996 his status was adjusted to that of a lawful permanent resident and in 2001 his wife became a citizen.

In 2008 he was convicted of receiving stolen property and he was given a suspended sentence. Homeland Security filed removal papers claiming that an alien who, “any time after admission,” was convicted of an aggravated felony” under under INA §237(a)(2)(A)(iii), Theft offenses for which the maximum penalty is at least one year are considered aggravated felonies.

Section 212(h) of the Immigration and Nationality Act (“INA”) permits the attorney general to allow immigrants to remain in this country despite the commission of certain crimes if there deportation would “result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” Prior to 1996 the only exceptions to a 212(h) waiver were those who committed murder or torture. But the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) denied additional categories of people waivers. Among those denied waivers under the IIRIRA were those who after being lawfully admitted to the country committed aggravated felonies.

But the Fourth Circuit Court of Appeals reversed the decision of the Board of Immigration Appeals which found Mendoza ineligible for a waiver since he had never been lawfully admitted. The government argued that since Mendoza was a lawful permanent resident he had been de facto lawfully admitted. No, said the court he entered the country only once and that was undocumented. Therefore he had never been lawfully admitted and the IIRIRA did not prevent him from getting a waiver.

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