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Amaral Law
11th Circuit Decision

Lanier v. U.S. Attorney General

A Landmark 11th Circuit Case on INA § 212(h) Waiver Eligibility

Understanding how the Lanier decision opens the door to 212(h) waivers for lawful permanent residents who adjusted status in the United States.

Case Information

Court

United States Court of Appeals for the Eleventh Circuit

Case Number

No. 09-15300

Date Decided

February 4, 2011

Judges

BARKETT, MARCUS, and FAY, Circuit Judges

Opinion By

Judge BARKETT

Disposition

PETITION GRANTED and REMANDED

Case Overview

Margaret Olayinka Lanier, a citizen of Nigeria, entered the United States without inspection in 1992. In 1996, she adjusted her status to lawful permanent resident (LPR) while already living in the United States. In 2007, the Department of Homeland Security charged her as removable for having committed an aggravated felony and a crime involving moral turpitude. She sought a waiver under INA § 212(h), arguing that her U.S. citizen daughter, who suffers from sickle cell anemia, would suffer extreme hardship if she were removed.

The Key Legal Issue

The central question was whether the § 212(h) waiver bar applies to lawful permanent residents who adjusted their status while already in the United States, or only to those who were admitted at a port of entry as LPRs.

The Statutory Language

INA § 212(h) provides that:

"No waiver shall be granted under this subsection 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..."

— INA § 212(h), 8 U.S.C. § 1182(h)

The Critical Distinction: "Admitted" vs. "Adjusted"

Congress defined "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." This definition is limited and does NOT encompass a post-entry adjustment of status. The court found this distinction to be unambiguous.

"Admitted"

The lawful entry of the alien into the United States after inspection and authorization by an immigration officer at a port of entry.

"Adjusted Status"

Changing immigration status while already physically present in the United States, without leaving and re-entering the country.

The Court's Holding

The Eleventh Circuit held that the statutory bar to § 212(h) relief does NOT apply to persons who, like Lanier, adjusted to lawful permanent resident status while already living in the United States. The plain language of the statute requires that a person must have physically entered the United States, after inspection, as a lawful permanent resident to be barred from seeking the waiver.

Implications for Your Case

If you are a lawful permanent resident who adjusted status while in the United States (rather than being admitted at a port of entry as an LPR), you may still be eligible for a § 212(h) waiver even if you have been convicted of an aggravated felony. This can be a crucial defense in removal proceedings.

Who Can Apply for a 212(h) Waiver?

LPR TypeHow Status ObtainedCan Apply for 212(h)?
Adjusted Status LPRAdjusted status while already in the U.S.YES - Not barred by aggravated felony restriction
Admitted LPREntered at port of entry as LPRNO - Barred if convicted of aggravated felony since admission

Circuit Court Support

The Eleventh Circuit joined other federal circuits in this interpretation:

5th Circuit

Martinez v. Mukasey, 519 F.3d 532 (2008)

4th Circuit

Aremu v. Dep't of Homeland Sec., 450 F.3d 578 (2006)

9th Circuit

Hing Sum v. Holder, 602 F.3d 1092 (2010)

212(h) Waiver Requirements

To qualify for a § 212(h) waiver, you must demonstrate:

Extreme Hardship

Your removal would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse, parent, son, or daughter

Rehabilitation

Evidence of rehabilitation and good moral character since the conviction

Positive Equities

Family ties, length of residence, employment history, and community involvement

Discretionary Factors

The Attorney General has discretion to grant or deny the waiver based on the totality of circumstances

Practical Tips

Gather evidence of how you obtained your LPR status (adjustment of status vs. consular processing)

Obtain your immigration file through FOIA to document your entry and adjustment history

Collect evidence of extreme hardship to qualifying relatives

Document rehabilitation efforts since your conviction

Work with an experienced immigration attorney who understands the Lanier decision

Legal Disclaimer

This information is provided for educational purposes only and does not constitute legal advice. Immigration law is complex and fact-specific. The applicability of the Lanier decision to your case depends on your individual circumstances. Please consult with a qualified immigration attorney to evaluate your specific situation.

Need Help with a 212(h) Waiver?

If you are facing removal and believe you may qualify for a § 212(h) waiver under the Lanier decision, contact our office for a consultation. We have extensive experience with waiver applications and removal defense.

Related Resources

Bond Hearings
Removal Defense
Crimmigration