U.S. Non-Precedent Decision of the and Administrative Appeals Office Services

In Re: 10767621 DATE: FEB. 09, 2021

Appeal of Nebraska Service Center Decision

Form 1-601, Application to Waive Inadmissibility Grounds

The Applicant seeks a waiver of inadmissibility under section 212(h) of the Immigration and Act (the Act), 8 U.S.C. § 1182(h), for having been convicted of a crime involving moral turpitude and for being convicted of two or more offenses for which the aggregate sentences were five years or more.

A foreign national convicted of a crime involving moral turpitude is inadmissible. Section 212(a)(2)(A)(i) of the Act. In addition, any foreign national convicted of two or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude , for which the aggregate sentences to confinement were five years or more is inadmissible. Section 212(a)(2)(B) of the Act. Foreign nationals found inadmissible under these sections of the Act may seek a waiver of inadmissibility under section 212(h) of the Act. However, a waiver is not available to a foreign national who has previously been admitted to the United States as lawfully admitted for permanent residence if since the date of such admission the foreign national has been convicted of an . Section 212(h)(2) of the Act.

The Director of the Nebraska Service Center denied the Form 1-601, concluding that the Applicant is statutorily ineligible for a waiver of inadmissibility because he was convicted of an aggravated felony after admission to the United States as a lawful permanent resident. The Director also concluded that the Applicant, as a result of these convictions and his immigration history, did not merit a waiver as a matter of discretion.

On appeal, the Applicant asserts that he was not deported as an aggravated felon but was deported under section 241(a)(4) of the Act for having been convicted of two crimes involving moral turpitude. Furthermore, he states that his crimes are not aggravated felonies because at the time of his deportation (1989) rape , sexual abuse of a minor, and crime of violence 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. Finally, the Applicant indicates that his qualifying relatives, his two U.S. citizen parents, would experience extreme hardship if his waiver is not granted and he merits a waiver as a matter of discretion.

Because the Applicant is residing abroad and applying for an immigrant visa, the U.S. Department of State makes the final determination concerning eligibility for a visa. Thus, as a result of the Consular Officer's findings of inadmissibility under section 212(a)(2)(A) and section 212(a)(2)(B) of the Act, the Applicant requires a waiver under section 212(h) of the Act. However, the Applicant is not statutorily eligible for a waiver of inadmissibility because he was convicted of an aggravated felony after admission to the United States as a lawful permanent resident.

The record establishes that the Applicant was admitted to the United States as a lawful permanent resident on June 4, 1985. On I 11989, the Applicant, who was still a lawful permanent resident at the time, was convicted of: two counts of aggravated sexual assault on a minor younger than 14 years old under Texas Penal Code section 22.04 (one count committed orl I1987 and the other inl I1987); injury to a child under 15 years old under Texas Penal Code section 22.021 (committed irl I 1987 and involved striking the victim with an automobile ; and indecency with a child under 17 years old under Texas Penal Code 21.11 (committed in~--~ 1988). On I I1989, the Applicant was ordered removed under section 241(a)(4) for having been convicted of two crimes involving moral turpitude.

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 context of eligibility for a section 212(h) waiver. See Matter of Truong, 22 l&N Dec. 1090, 1096 (BIA 1999). In Matter of Truong, the Board of Immigration Appeals 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 section 212(h) waiver application, are occurring after 1996 and thus, the aggravated felony definitions apply retroactively to the decision.

In sum, the Director's decision is affirmed. The Applicant is not statutorily eligible for a waiver of inadmissibility because he was convicted of an aggravated felony after admission to the United States as a lawful permanent resident. 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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