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attorneyadmissibility
attorneyregulationvisaadmissibility

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Poveda v. AG

Facts

Sammir Poveda is a native and citizen of Nicaragua. After his admittance into the United States, Poveda adjusted his status in 2002 to that of an alien lawfully admitted for permanent residence under the Nicaraguan Adjustment and Central American Relief Act of 1997. In 2007, a Florida court convicted Poveda of the offense of battery on a child by bodily fluids, and soon afterward, the Department of Homeland Security commenced removal proceedings against him. Poveda applied for a hardship waiver of removal under section 212(h).

Sammir Poveda is a native and citizen of Nicaragua. After his admittance into the United States, Poveda adjusted his status in 2002 to that of an alien lawfully admitted for permanent residence under the Nicaraguan Adjustment and Central American Relief Act of 1997. In 2007, a Florida court convicted Poveda of the offense of battery on a child by bodily fluids, and soon afterward, the Department of Homeland Security commenced removal proceedings against him.

Issue

Whether a removable alien is eligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act if he remains within the United States but fails to apply for an adjustment of his status.

Whether a removable alien is eligible for a waiver of inadmissibility, under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. 1182(h), if he remains within the United States, but fails to apply for an adjustment of his status, 8 U.S.C. 1255.

Rule

The Attorney General may grant a waiver in two situations: first, to an alien at the border who seeks admission, and second, to an alien within the U.S. after his conviction for a deportable offense, provided he applies for an adjustment of status.

The Attorney General may, in his discretion, waive the application of [certain grounds of inadmissibility] . . . if . . . the Attorney General, in his discretion, and pursuant to [**7] such terms . . . as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

Analysis

The court found that the Board's interpretation of section 212(h) was reasonable, requiring lawful permanent residents to apply for an adjustment of status to be eligible for a hardship waiver. The court noted that the Board had abandoned its previous position that allowed for a waiver without such an application, aligning with the statutory language and the changes brought by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

The court found that the Board's interpretation of section 212(h) was reasonable, requiring lawful permanent residents to apply for an adjustment of status to be eligible for a hardship waiver.

Conclusion

The court denied Poveda's petition for review, affirming the Board's decision that he was ineligible for the hardship waiver.

The court denied Poveda's petition for review, affirming the Board's decision that he was ineligible for the hardship waiver.

Who won?

The United States Government prevailed in the case because the court upheld the Board's interpretation of the law regarding the eligibility for a hardship waiver.

The United States Government prevailed in the case because the court upheld the Board's interpretation of the law regarding the eligibility for a hardship waiver.

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