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380 

Matter of N-V-G-, Respondent

Decided September 17, 2021

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

A person who enters the United States as a refugee and later adjusts in the United States 

to lawful permanent resident status is not precluded from establishing eligibility for a 

waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 

8 U.S.C. § 1182(h) (2018), based on a conviction for an aggravated felony, because he or 

she has not “previously been admitted to the United States as an alien lawfully admitted 

for permanent residence” under that provision. 

FOR RESPONDENT: Mai Neng Moua, Esquire, Minneapolis, Minnesota 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Amy K.R. Zaske, Assistant 

Chief Counsel 

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; 

HUNSUCKER, Appellate Immigration Judge; NOFERI, Temporary Appellate 

Immigration Judge. 

NOFERI, Temporary Appellate Immigration Judge: 

 In a decision dated September 13, 2018, an Immigration Judge granted 

the respondent’s request for a waiver of his inadmissibility under section 

212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2018). 

The Department of Homeland Security (“DHS”) has appealed from this 

decision, and the respondent opposes the appeal. The DHS’s appeal 

regarding the respondent’s eligibility for a 212(h) waiver will be dismissed, 

and the record will be remanded for further proceedings. 

I. FACTUAL AND PROCEDURAL HISTORY 

 The respondent is a native and citizen of Laos who entered the United 

States as a refugee in 1989 under section 207 of the Act, 8 U.S.C. § 1157 

(1988). In 1990, he adjusted his status to that of a lawful permanent resident 

pursuant to section 209(a) of the Act, 8 U.S.C. § 1159(a) (1988). In 2001, 

he was convicted of second degree assault with a dangerous weapon in 

violation of section 609.222(1) of the Minnesota Statutes Annotated, and 

sentenced to 21 months of incarceration. 
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 Based on this conviction, the DHS placed the respondent in removal 

proceedings, charging him with removability under section 237(a)(2)(E)(i) 

of the Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), as an “alien . . . convicted of 

a crime of domestic violence.” The respondent admitted the allegations and 

conceded that he was removable as charged. For purposes of relief from 

removal, the Immigration Judge found that the respondent’s conviction was 

one for an aggravated felony “crime of violence” for which the term of 

imprisonment was at least 1 year under section 101(a)(43)(F) of the Act, 

8 U.S.C. § 1101(a)(43)(F) (2018).1

 The Immigration Judge acknowledged 

that section 212(h) of the Act bars a respondent who has been convicted of 

an aggravated felony after “previously [being] admitted to the United States 

as an alien lawfully admitted for permanent residence.” However, she 

concluded that the respondent was not subject to this bar because he entered 

the United States as a refugee, not as a lawful permanent resident, and he was 

not “admitted to the United States as an alien lawfully admitted for 

permanent residence” based on his adjustment of status under section 209(a) 

of the Act. The DHS challenges this conclusion on appeal. Whether the 

respondent is subject to the aggravated felony bar at section 212(h) of the 

Act is a question of law we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) 

(2021). 

II. DISCUSSION 

 In relevant part, section 212(h) of the Act states that no waiver shall be 

granted “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 the admission the alien has been convicted of an aggravated 

felony.” (Emphases added.) The term “admitted” is defined as “the lawful 

entry of the alien into the United States after inspection and authorization by 

 

1

 We affirm the Immigration Judge’s conclusion that the respondent’s conviction is for 

an aggravated felony. The United States Court of Appeals for the Eighth Circuit, under 

whose jurisdiction this case arises, has held that a violation of section 609.222(1) of the 

Minnesota Statutes Annotated is categorically a conviction for a “violent felony” under the 

“force clause” of the Armed Career Criminal Act (“ACCA”). United States v. Pendleton, 

894 F.3d 978, 981–82 (8th Cir. 2018). The “force clause” of the ACCA is identical in all 

material respects to the definition of a “crime of violence” under 18 U.S.C. § 16(a) (2018), 

which is incorporated by reference into section 101(a)(43)(F) of the Act. Compare 18 

U.S.C. § 16(a), with 18 U.S.C. § 924(e)(2)(B)(i) (2018). We have previously described the 

“force clause” of the ACCA and the definition of an aggravated “crime of violence” under 

§ 16(a) as “very similar.” Matter of Guzman-Polanco, 26 I&N Dec. 713, 717 (BIA 2016) 

(quoting Johnson v. United States, 559 U.S. 133, 140 (2010)), clarified by 26 I&N Dec. 806 

(BIA 2016). Thus, the Immigration Judge properly applied the Eighth Circuit’s holding in 

Pendleton to the respondent’s conviction. 
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an immigration officer.” Section 101(a)(13)(A) of the Act. And the term 

“lawfully admitted for permanent residence” is defined as “the status of 

having been lawfully accorded the privilege of residing permanently in the 

United States as an immigrant in accordance with the immigration laws, such 

status not having changed.” Section 101(a)(20) of the Act. 

 We have interpreted section 212(h) in light of these terms and held that 

in order to be subject to the aggravated felony bar under this provision, three 

prerequisites apply—respondents must have (1) “entered the United States,” 

(2) “as lawful permanent residents,” (3) prior to being convicted of an 

aggravated felony. Matter of J-H-J-, 26 I&N Dec. 563, 565 (BIA 2015) 

(emphasis added). We did so because a clear majority of circuit courts 

adopted a similar interpretation of this provision. Id. at 564 (collecting 

cases); see also, e.g., Stanovsek v. Holder, 768 F.3d 515, 517 (6th Cir. 2014) 

(stating that “a § 212(h) waiver is precluded after a conviction of an 

aggravated felony only when the removable person had attained the status of 

lawful permanent resident at the time of his or her lawful entry into the 

United States”); Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1366–67 (11th Cir. 

2011) (interpreting section 212(h) as providing that “a person must have 

physically entered the United States, after inspection, as a lawful permanent 

resident in order to have ‘previously been admitted to the United States as an 

alien lawfully admitted for permanent residence’” (citation omitted)). But 

see Roberts v. Holder, 745 F.3d 928, 932 (8th Cir. 2014) (per curiam). 

 As noted, the respondent entered the United States as a refugee under 

section 207 of the Act and later adjusted to lawful permanent resident status 

pursuant to section 209(a) of the Act. The DHS argues that our holding in 

Matter of J-H-J- is inapplicable in light of this two-step process for refugee 

admissions because section 209(a)(2) of the Act provides that an individual, 

who was admitted as a refugee and later adjusts his or her status to that of a 

lawful permanent resident under section 209(a), “shall . . . be regarded as 

lawfully admitted to the United States for permanent residence as of the date 

of such alien’s arrival into the United States.” We disagree. 

 Although we have held that a person “admitted to the United States as a 

refugee has been ‘admitted’ for purposes of section 101(a)(13)(A) of the 

Act,” Matter of D-K-, 25 I&N Dec. 761, 769 (BIA 2012) (emphasis added), 

we have never said that such a “refugee” has been admitted in the status of 

an alien “lawfully admitted for permanent residence,” for purposes of section 

101(a)(20) of the Act (emphasis added). See also Matter of Jean, 23 I&N 

Dec. 373, 374 n.4 (A.G. 2002) (noting that the respondent, admitted as a 

“refugee” under section 207, was not “permanently admitted into the 

country”). See generally Sanchez v. Mayorkas, 141 S. Ct. 1809, 1813 (2021) 

(“Lawful status and admission . . . are distinct concepts in immigration law: 

Establishing one does not necessarily establish the other.”). 
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 Significantly, section 207 of the Act explicitly provides for the admission 

of “refugees,” and, unlike section 209(a)(2), it does not use the term 

“lawfully admitted . . . for permanent residence.” Thus, an “admission” 

under section 207 is an “admission” to the United States in the status of a 

“refugee,” not a lawful permanent resident. Matter of D-K-, 25 I&N Dec. at 

769; see generally INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) 

(“[W]here Congress includes particular language in one section of a statute 

but omits it in another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate inclusion or 

exclusion.” (alteration in original) (citation omitted)). Further, section 209 

of the Act, which governs the adjustment of status of refugees “admitted to 

the United States under section 207,” explicitly precludes refugees from 

adjusting their status if they have “acquired permanent resident status.” 

Sections 209(a)(1), (1)(C) of the Act. Accordingly, sections 207 and 209 

provide that the respondent, who entered the United States as a “refugee” and 

later adjusted his status under section 209(a) of the Act, was not 

“previously . . . admitted to the United States as an alien lawfully admitted 

for permanent residence” within the meaning of section 212(h) of the Act. 

The relevant legislative history supports this conclusion. 

 During passage of the Refugee Act of 1980, Pub. L. No. 96-912, 94 Stat. 

102, Congress rejected proposed language from the Senate, which would 

have granted lawful permanent resident status to refugees upon their entry 

into the United States and instead adopted statutory language conditionally 

withholding lawful permanent resident status from refugees. S. Rep. No. 

96-256, at 7–8 (1979); see also Matter of D-K-, 25 I&N Dec. at 767 

(recognizing this legislative history). In the final version, Congress replaced 

‘“conditional entrant’ status” with “conditional admission of all refugees.” 

Matter of Garcia-Alzugaray, 19 I&N Dec. 407, 408 (BIA 1986) (emphases 

added); see also H.R. Rep. No. 96-781, at 21 (1980). Thus, a respondent 

who is conditionally admitted as a “refugee” under section 207 has not been 

admitted as “an alien lawfully admitted for permanent residence” for 

purposes of the section 212(h) waiver.2

 

2

 This conclusion is consistent with our holding in Matter of Paek, 26 I&N Dec. 403 

(BIA 2014), aff’d, Paek v. Att’y Gen. of the U.S., 793 F.3d 330 (3d Cir. 2015). In that case, 

we held that a spouse or child initially admitted to the United States as a conditional 

permanent resident under section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2012), has 

previously been “admitted to the United States as an alien lawfully admitted for permanent 

residence” within the meaning of section 212(h). Id., 26 I&N Dec. at 406–07. We reached 

this conclusion based on the plain language of the Act, which provides that “permanent 

resident status is obtained on the date of an alien’s initial admission as a conditional 

permanent resident,” and thus, “although an alien may be admitted pursuant to section 216 

on a conditional basis, under the plain language of that section, such an admission is 
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 Moreover, we are not persuaded that the language at section 209(a)(2) of 

the Act retroactively converts the respondent’s adjustment of status—after 

he entered the United States as a “refugee”—into a previous “admission” into 

the United States as “an alien lawfully admitted for permanent residence” 

within the meaning of section 212(h) of the Act.3

 Being “regarded,” 

following an adjustment of status, as “lawfully admitted . . . for permanent 

residence” as of one’s date of arrival in the United States is not the same 

thing as being admitted to the United States as a lawful permanent resident, 

as required by section 212(h). Sections 209(a)(2), 212(h) of the Act. We 

made this very point in Matter of J-H-J-. 

 Prior to Matter of J-H-J-, we had held that the term “admitted” in section 

212(h) of the Act was ambiguous and could encompass an adjustment of 

status within the United States. Matter of E.W. Rodriguez, 25 I&N Dec. 784, 

789 (BIA 2012); Matter of Koljenovic, 25 I&N Dec. 219, 220–23 (BIA 

2010). The United States Court of Appeals for the Eighth Circuit, in whose 

jurisdiction this case arises, deferred to our holdings in those cases. Roberts, 

745 F.3d at 932. However, in the face of “overwhelming circuit court 

authority in disagreement with Koljenovic and E.W. Rodriguez,” concluding 

that the term “admitted to the United States as an alien lawfully admitted for 

permanent residence” in section 212(h) plainly and unambiguously required 

a person to enter the United States as a permanent resident, we “accede[d] to 

the clear majority view of these . . . circuits” and withdrew from our prior 

holdings in Matter of Koljenovic and Matter of E.W. Rodriguez. Matter of 

J-H-J-, 26 I&N Dec. at 564–65. As noted, we held that section 212(h) “only 

precludes aliens who entered the United States as lawful permanent residents 

from establishing eligibility for a waiver on the basis of an aggravated felony 

conviction.” Id. at 565 (emphasis added). Because the respondent entered 

the United States as a refugee—rather than as a lawful permanent resident—

he is not subject to the aggravated felony bar under section 212(h). We are 

not persuaded by the DHS’s remaining arguments to the contrary. 

 In support of its argument that section 209(a)(2) retroactively converted 

the respondent’s entry as a “refugee” into an “admission” as a lawful 

permanent resident, the DHS points to similar language in section 245(b) of 

the Act, 8 U.S.C. § 1255(b) (2018), which provides that “[u]pon the approval 

of an application for adjustment made under subsection (a) of this section, 

 

nonetheless an admission ‘as an alien lawfully admitted for permanent residence’” under 

section 212(h). Id. 3

 The legislative history of the Refugee Act of 1980 reflects that Congress intended 

section 209(a)(2) to preserve a refugee’s physical presence in the United States from the 

date of initial entry for purposes of eligibility for naturalization, such that “the individual 

would not be disadvantaged during the waiting period” required to apply for adjustment of 

status. 126 Cong. Rec. 4500 (1980) (statement of Rep. Holtzman). 
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the Attorney General shall record the alien’s lawful admission for permanent 

residence as of the date of the order of the Attorney General approving the 

application for adjustment of status.” (Emphasis added.) The DHS contends 

that this language supports its contention that an adjustment of status under 

section 209 is an “admission.” However, section 245(b) relates to adjustment 

of status under section 245(a), not section 209(a) of the Act. And, in any 

event, we withdrew our prior precedents endorsing the DHS’s interpretation 

of section 245(b) of the Act. See Matter of J-H-J-, 26 I&N Dec. at 565.4

 

 The DHS also relies on section 209(a)(1), which requires applicants for 

adjustment of status to “return or be returned to the custody of the [DHS] for 

inspection and examination for admission to the United States as an 

immigrant.” (Emphasis added.) The DHS argues that this reinspection 

requirement renders an applicant “admitted to the United States as an alien 

lawfully admitted for permanent residence” for purposes of section 212(h). 

However, adjustment of status under section 209(a) does not necessitate a 

“lawful entry” into the United States within the meaning of section 

101(a)(13)(A) of the Act.5

 We therefore conclude, consistent with the 

holdings to which we acceded in Matter of J-H-J-, that adjustment of status 

pursuant to section 209(a) of the Act does not render the respondent 

“previously . . . admitted to the United States as an alien lawfully admitted 

for permanent residence” within the meaning of section 212(h) of the Act. 

See, e.g., Lanier, 631 F.3d at 1366–67. This conclusion is consistent with 

Matter of D-K-, 25 I&N Dec. at 769, in which we stated that the reinspection 

requirement under section 209(a)(1) “does not undermine [a noncitizen’s] 

initial admission as a refugee under section 207 of the Act.”6

 

 Finally, we recognize that the Eighth Circuit has held that a refugee who 

adjusted his status under section 209 of the Act was “admitted” within the 

meaning of the aggravated felony bar in section 212(h). Spacek v. Holder, 

 

4

 The circuit court interpretations we acceded to in Matter of J-H-J- found section 245(b) 

to be consistent with “admission” defined as “an event occurring at the point of first lawful 

entry,” which is distinguishable from “lawful status.” Stanovsek, 768 F.3d at 519 (“[T]he 

status of ‘lawfully admitted for permanent residence’ can be attained at that point of entry 

or at a later adjustment of status.”); see also Husic v. Holder, 776 F.3d 59, 64–65 (2d Cir. 

2015). 

5

 The regulations provide that refugees may apply for adjustment of status from within 

the United States, without a requirement to reenter the United States. See 8 C.F.R. 

§§ 209.1, 1209.1 (2021). 

6

 To the extent that we stated in Matter of D-K-, 25 I&N Dec. at 768, that “our 

construction effectively envisions that a refugee who ultimately becomes a lawful 

permanent resident will have been ‘admitted’ twice—first, upon conditional admission 

under section 207 of the Act, and second, upon reinspection and adjustment to permanent 

resident status under section 209(a) of the Act,” that language was dicta not essential to our 

holding in that case. 
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688 F.3d 536, 539 (8th Cir. 2012).7 Citing the reinspection requirement at 

section 209(a)(1), the court reasoned that this provision “incorporates the 

same definitions as [section 212(h)], so ‘admission’ under the former is 

equivalent to ‘admission’ under the latter.” Id. Based on this reasoning, the 

court concluded that the respondent in that case had been “‘lawfully admitted 

for permanent residence’ at the time of his ‘admission’ under 

[section 209(a)(1)],” and thus “his subsequent aggravated felony 

disqualifie[d] him from seeking a [section 212(h)] waiver of inadmissibility.” 

Id.

While the Eighth Circuit reached a different conclusion in Spacek than 

the holding we reach today, we note that the court’s decision in Spacek

preceded Roberts, in which the Eighth Circuit expressly concluded that the 

wording of the section 212(h) waiver—the key statutory provision at issue 

here—is ambiguous, and deferred to our interpretation of that provision. 

Roberts, 745 F.3d at 932. Subsequently, in Matter of J-H-J-, which also 

arose in the Eighth Circuit, we withdrew from our prior interpretation of 

section 212(h) and acceded to “overwhelming circuit court authority” finding 

section 212(h) unambiguous. Matter of J-H-J-, 26 I&N Dec. at 564–65. The 

decision in Spacek was not based on a holding that the statutory text of 

section 212(h) was unambiguous. Spacek, 688 F.3d at 539; cf., e.g., Lanier, 

631 F.3d at 1366–67 (basing its holding on “the plain language of § 212(h)”). 

Because the Eighth Circuit has concluded in Roberts that the wording of 

section 212(h) is ambiguous, we respectfully conclude that our holding in 

this case is reasonable and warrants deference, as it is consistent with 

significant changes in the interpretation of section 212(h) since the issuance 

of Spacek. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 

545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a statute 

trumps an agency construction otherwise entitled to Chevron [U.S.A., Inc. 

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),] deference 

only if the prior court decision holds that its construction follows from the 

unambiguous terms of the statute and thus leaves no room for agency 

discretion.”); see also Roberts, 745 F.3d at 932.8

 This will also promote 

 

7

 We are not aware of any Circuit Court of Appeals that has followed the Spacek court’s 

approach. 8

 Additionally, the fact that Spacek relies in significant part on an analysis of the interplay 

between two statutory provisions (i.e. sections 209(a)(1) and 212(h) of the Act) is a further 

indication that Spacek’s construction is not based on the provisions being unambiguous. 

See Garfias-Rodriguez v. Holder, 702 F.3d 504, 512-14 (9th Cir. 2012) (en banc) (noting 

that tension between two provisions “creates a statutory ambiguity that cannot be resolved 

conclusively by resort to the text,” and deferring to the Board regarding Matter of Briones, 

24 I&N Dec. 355 (BIA 2007) and Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)). 
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national uniformity in the administration of the immigration laws.9 See 

Matter of Ortega-Lopez, 27 I&N Dec. 382, 387 (BIA 2018) (“[A] single rule 

furthers the paramount need for ‘uniformity in the administration of 

immigration laws.’” (citation omitted)), aff’d, Ortega-Lopez v. Barr, 

978 F.3d 680 (9th Cir. 2020); see also, e.g., Matter of Marquez Conde, 27 

I&N Dec. 251, 254-55 (BIA 2018) (reaffirming and modifying Matter of 

Pickering, 23 I&N Dec. 621 (BIA 2003), to apply it nationwide). 

For the reasons stated above, we conclude that a person who enters the 

United States as a refugee and later adjusts in the United States to lawful 

permanent resident status is not precluded from establishing eligibility for a 

waiver of inadmissibility under section 212(h) of the Act based on a 

conviction for an aggravated felony, because he or she has not “previously 

been admitted to the United States as an alien lawfully admitted for 

permanent residence” under that provision. 

 We therefore agree with the Immigration Judge that the respondent’s 

conviction for an aggravated felony does not bar him from seeking a section 

212(h) waiver and will affirm the Immigration Judge’s determination that the 

respondent is eligible for a waiver of inadmissibility under section 212(h) of 

the Act. Accordingly, the DHS’s appeal of that issue is dismissed. 

 We note that the Immigration Judge erred in concluding that the 

respondent could seek a “stand-alone” waiver without also applying for 

adjustment of status. Matter of Rivas, 26 I&N Dec. 130, 132–33 (BIA 2013) 

(holding that a waiver of inadmissibility under section 212(h) of the Act is 

not available on a “stand-alone” basis to an alien in removal proceedings 

without a concurrently filed application for adjustment of status). However, 

the record reflects that the respondent has submitted an application for 

adjustment of status based on an approved visa petition filed by his United 

States citizen daughter. The record is remanded to the Immigration Judge 

for further consideration of the respondent’s statutory eligibility for 

adjustment of status, and whether he warrants relief in the exercise of 

discretion. The respondent may also pursue on remand any other relief or 

protection for which he may be eligible. We express no opinion regarding 

the outcome of the proceedings on remand. 

ORDER: The Department of Homeland Security’s appeal is dismissed. 

FURTHER ORDER: The record is remanded to the Immigration 

Judge for further proceedings consistent with the foregoing opinion and for 

entry of a new decision.

 

9

 The Board has previously issued inconsistent decisions within the Eighth Circuit on this 

issue.