Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568 

In re Emeka Kenneth ABOSI, Respondent 

File A76 407 054 - Bloomington 

Decided June 19, 2007 

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals 

A returning lawful permanent 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 section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(h) (2000). 

FOR RESPONDENT: Herbert A. Igbanugo, Esquire, Minneapolis, Minnesota 

BEFORE: Board Panel: OSUNA, Acting Chairman; PAULEY, Board Member; 

GUENDELSBERGER, Temporary Board Member 

PAULEY, Board Member: 

In a decision dated October 13, 2005, an Immigration Judge found the 

respondent removable and ineligible for a waiver of inadmissibility under 

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

(2000). The respondent has appealed from that decision. The appeal will be

sustained and the record will be remanded to the Immigration Judge for 

further proceedings. 

I. FACTUAL AND PROCEDURAL HISTORY 

The respondent is a native and citizen of Nigeria who is married to a United 

States citizen. The record reflects that he adjusted his status to that of a lawful 

permanent resident 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 a small amount of marijuana, i.e., 0.7 grams, and was issued a 

citation for committing a petty misdemeanor in violation of Minnesota law. 

The respondent, who later pled guilty to the offense and paid a fine, was 

admitted to the United States as a returning lawful permanent resident at that 

time. He departed the United States again in August of 2002, but when he 

returned on November 6, 2002, he was not admitted because of his prior 

controlled substance offense. The respondent was placed in removal 

proceedings by the filing of a Notice to Appear (Form I-862), which alleged, 

204
Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568 

inter alia, that he is an arriving alien. He was subsequently charged with being 

removable under section 212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II) (2000), as an alien convicted of a controlled substance 

violation.1 The respondent sought relief in the form of a waiver of 

inadmissibility pursuant to section 212(h) of the Act. Relying on 8 C.F.R. 

§ 1245.1(f) (2005), the Immigration Judge determined that the respondent was 

required to apply for adjustment of status in conjunction with his application 

for a waiver under section 212(h) of the Act. However, citing 8 C.F.R. 

§ 1245.2 (2005), the Immigration Judge found that the respondent was 

ineligible to adjust his status in removal proceedings because he is an arriving 

alien. Therefore, because the Immigration Judge did not believe that the 

respondent could pursue a waiver under section 212(h) of the Act 

independently of an adjustment of status application, he found the respondent 

ineligible for the requested waiver. 

II. ANALYSIS 

Section 212(h) of the Act 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.” It does not, on its face, bar 

arriving aliens from seeking such relief. Nor does the language of the statute 

require the filing of a concurrent application for adjustment of status. 

Moreover, 8 C.F.R. § 1245.1(f), the adjustment of status regulation on which 

the Immigration Judge relied, clearly applies only 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 adjustment of status in order to 

obtain a waiver.2

 In no way does it state that an alien like the respondent, who 

1 The respondent’s offense, which involved possession of fewer than 30 grams of marijuana,

would not have subjected him to removal while he was still in the United States. See section

237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2000).

2 This regulation is in Part 1245 of the Code of Federal Regulations, which is entitled

“Adjustment of Status to that of Person Admitted for Permanent Residence,” and provides,

in relevant part, as follows:

Concurrent applications to overcome grounds of inadmissibility. . . . [A]n application 

under this part shall be the sole method of requesting the exercise of discretion under 

sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an 

alien in the United States. 

8 C.F.R. § 1245.1(f) (emphasis added). 

205 
Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568 

is seeking to return to the United States and already has lawful permanent 

resident status, must apply for adjustment of status in conjunction with his 

waiver request. 

The respondent was initially charged with being an arriving alien upon his 

return to the United States. See 8 C.F.R. § 1.1(q) (2007) (defining an 

“arriving alien” in pertinent part as “an applicant for admission coming or 

attempting to come into the United States at a port-of-entry”). However, his 

situation is clearly contemplated by section 101(a)(13)(C)(v) of the Act, 

8 U.S.C. § 1101(a)(13)(C)(v) (2000).3

 In cases such as this, where the 

respondent is a returning lawful permanent resident charged with a ground of 

inadmissibility, a grant of a 212(h) waiver of inadmissibility simply eliminates 

the basis for his inadmissibility and leaves his lawful permanent resident status 

intact. See Matter of Millard, 11 I&N Dec. 175, 177-78 (BIA 1965); see also 

Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). In this respect it is similar 

to a grant of a waiver under former 212(c) of the Act, 8 U.S.C. § 1182(c)

(1988), which “returns an alien to the same lawful permanent resident status 

previously held.” Matter of Gordon, 20 I&N Dec. 52, 55 (BIA 1989); see 

also Matter of Przygocki, 17 I&N Dec. 361, 364 (BIA 1980). Consequently, 

there is no reason to require the respondent to reapply for adjustment of status 

in conjunction with a section 212(h) waiver. 

Furthermore, we note that the respondent has not lost his lawful permanent 

resident status, which is not terminated until a removal order against him 

becomes final. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981), aff’d, Lok 

v. INS, 681 F.2d 107 (2d Cir.1982) (holding that an act or event that provides 

a basis for an alien’s deportation does not in itself terminate his lawful 

permanent resident status, which ends, as a result of his commission of a 

deportable offense, only upon the entry of a final administrative order of 

deportation); 8 C.F.R. § 1.1(p) (stating that the term “lawfully admitted for 

permanent residence” means “the status of having been lawfully accorded the 

privilege of residing permanently in the United States . . . , such status not 

3 Section 101(a)(13)(C) of the Act provides in pertinent part as follows:

 An alien lawfully admitted for permanent residence in the United States shall not be 

regarded as seeking an admission into the United States for purposes of the 

immigration laws unless the alien–

 (v) has committed an offense identified in section 212(a)(2), unless since such 

offense the alien has been granted relief under section 212(h) . . . .

206 
Cite as 24 I&N Dec. 204 (BIA 2007) Interim Decision #3568 

having changed” and that “[s]uch status terminates upon entry of a final 

administrative order of . . . removal”). Therefore, since there is no final order 

of removal in this case, the respondent does not need to adjust his status in 

order to retain his status as a lawful permanent resident. 

We conclude that the respondent is eligible for a waiver under section 

212(h) of the Act, which, if granted, would resolve the charge of removability 

against him.4

 As a returning lawful permanent resident, he is not required to 

file an application for adjustment of status in conjunction with his waiver 

request. Accordingly, the respondent’s appeal will be sustained and the record 

will be remanded to the Immigration Judge for further proceedings.5 

ORDER: The appeal is sustained. 

FURTHER ORDER: The record is remanded to the Immigration Judge 

for further proceedings consistent with the foregoing opinion and for the entry 

of a new decision. 

4 We note that the Immigration Judge stated in his decision that if the respondent was 

determined on appeal to be eligible for a waiver under section 212(h) of the Act, he would 

grant the waiver in the exercise of discretion. 

5 In light of our disposition of this case, we find it unnecessary to address the respondent’s 

motion to remand, which was filed on July 10, 2006. 

207