U.S. Citizenship Non-Precedent Decision of the and Immigration Administrative Appeals Office Services
In Re: 10767623 DATE: FEB. 09, 2021
Appeal of Nebraska Service Center Decision
Form 1-212, Application for Permission to Reapply for Admission
The Applicant is inadmissible to the United States for having been convicted of an aggravated felony and seeks permission to reapply for admission to the United States under section 212(a)(9)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(9)(A)(iii).
Section 212(a)(9)(A)(ii) of the Act provides, in part, that a foreign national , other than an "arriving alien ," who has been convicted of an aggravated felony is inadmissible. Foreign nationals found inadmissible under section 212(a)(9)(A) of the Act may seek permission to reapply for admission under section 212(a)(9)(A)(iii) of the Act if, prior to the date of the reembarkation at a place outside the United States or attempt to be admitted from foreign continuous territory, the Secretary of Homeland Security has consented to the foreign national's reapplying for admission.
The Director of the Nebraska Service Center denied the Form 1-212 as a matter of discretion because the Applicant had not shown he merited an approval of a Form 1-601, Application to Waive Inadmissibility Grounds, to waive his criminal grounds of inadmissibility or that he was statutorily eligible to apply for the waiver.
In a joint brief concerning both his Form 1-601 and Form 1-212 appeals, the Applicant asserts that he does not require permission to reapply for admission because his crimes are not aggravated felonies. He explains that at the time of his deportation they were not considered aggravated felonies and the current aggravated felony definitions under section 101(a)(43) of the Act cannot be retroactively applied to his case . Notably, the Applicant does not contest that he has been convicted of an aggravated felony as this term is currently defined under section 101(a)(43)(A) of the Act, (murder, rape, or sexual abuse of a minor), only that it should not apply to his conviction retroactively.
As we explained in our decision regarding the Applicant's Form 1-601, although it is true that at the time of the Applicant's convictions his crimes were not considered aggravated felonies, the aggravated felony definitions under section 101(a)(43) of the Act are retroactively applied in the current context. See Matter of Truong, 22 l&N Dec. 1090, 1096 (BIA 1999). In Matter of Truong, the Board held that aggravated felony definitions, " ... can reach back to encompass any conviction , regardless of when it occurred." Id. The only limitation on this retroactivity is that the amended definitions will apply to "actions taken" (interpreted, at a minimum as, actions and decisions of the Attorney General and his or her delegates) after the enactment of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 on September 30, 1996. Id.
Here, the Applicant was convicted of his crimes in 1989, but the actions taken in his case, the U.S. Citizenship and Immigration Services decisions on his admissibility are occurring after 1996 and thus, the aggravated felony definitions do apply retroactively to the decision.
Matter of Martinez-Torres, 10 l&N Dec. 776 (Reg. Comm. 1964), held that an application for permission to reapply for admission is denied, in the exercise of discretion, to an alien who is inadmissible to the United States under another section of the Act, and no purpose would be served in granting the application.
We affirmed the Director's Form 1-601 decision in a separate appeal decision, concluding the Applicant is not statutorily eligible for a section 212(h) waiver and thus, remains inadmissible on criminal grounds. Because the Applicant would remain inadmissible even if we granted permission to reapply for admission, no purpose would be served in granting the application. Thus, we also affirm the Director's Form 1-212 decision.
The burden of proof in these proceedings rests solely with the Applicant. Section 291 of the Act, 8 U.S.C. § 1361. Here, the Applicant has not met that burden.
ORDER: The appeal is dismissed.
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