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attorneyappealfelonyvisastatutory interpretationadmissibility
attorneyfelonyadmissibility

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Eleri v. Sessions

Facts

Charles Chukwumeze Eleri, a native of Nigeria, entered the United States as a conditional permanent resident in 1995 based on his marriage to a U.S. citizen. His conditional status was automatically terminated in 1997 due to his failure to file the required petition. In 2009, Eleri was convicted of forcible rape, which led to removal proceedings initiated by the Department of Homeland Security in 2011. Despite these proceedings, Eleri's second wife filed a visa petition on his behalf, which was granted by DHS.

On March 21, 1995, Charles Chukwumeze Eleri ('Eleri'), a native and citizen of Nigeria, entered the United States as a conditional permanent resident based on his marriage to his first wife, a U.S. citizen. Eleri's status as a conditional permanent resident was automatically terminated in 1997 due to his failure to file the required petition. Removal proceedings were not initiated by the Department of Homeland Security ('DHS') until 2011fourteen years later. The apparent impetus for these proceedings was Eleri's 2009 conviction for forcible rape of a 19-year-old woman with the mental capacity of a 13-year-old girl.

Issue

Whether the Attorney General has the discretion to grant a waiver of inadmissibility to a conditional permanent resident who has been convicted of an aggravated felony.

The issue presented here is whether the Attorney General has the discretion to grant a waiver of inadmissibility to a conditional permanent resident who has been convicted of an aggravated felony as opposed to a lesser offense involving moral turpitude.

Rule

Under 8 U.S.C. 1182(h), a waiver of inadmissibility is barred for an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if they have been convicted of an aggravated felony.

Section 1182(h) precludes a waiver of inadmissibility '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 such admission the alien has been convicted of an aggravated felony.'

Analysis

The court applied the statutory interpretation of 8 U.S.C. 1182(h) and determined that Eleri, as a conditional permanent resident, was still considered an alien lawfully admitted for permanent residence. The court referenced the Third Circuit's reasoning in Paek v. Attorney General, which affirmed that conditional permanent residents are subject to the same rules as full-fledged permanent residents regarding waivers of inadmissibility.

We likewise see no reason in this case why Congress would draw Eleri's desired distinction between permanent residents and conditional permanent residents for the purpose of determining eligibility for a waiver of inadmissibility. Indeed, in Paek v. Attorney General of the United States, the Third Circuit held that the 'language of the INA [Immigration and Nationality Act] indicates that an alien admitted as a [conditional permanent resident] constitutes 'an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence.'

Conclusion

The Ninth Circuit affirmed the decision of the Board of Immigration Appeals, denying Eleri's petition for review and holding that he was ineligible for a waiver of inadmissibility due to his aggravated felony conviction.

Accordingly, we DENY the petition for review.

Who won?

Sessions (the government) prevailed because the court upheld the BIA's determination that Eleri was ineligible for a waiver of inadmissibility based on his aggravated felony conviction.

The court determined that Eleri, having been admitted as a conditional permanent resident, was still considered an alien lawfully admitted for permanent residence under the Immigration and Nationality Act.

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