Recent amendments to the Immigration and Nationality Act have greatly expanded the grounds for removal of lawful permanent residents (LPRs) and, at the same time, constricted judicial review of agency decisions to deport immigrants. Language added to the 212(h) waiver of inadmissibility has increased the number of LPRs that are now ineligible for relief from removal by barring certain LPRs from applying for a waiver if, since the date of their admission, they have committed an aggravated felony or have failed to accrue seven years of continuous presence. The controversy discussed in this Note stems from differing interpretations of this statutory provision.

Nine courts of appeals have ruled that an aggravated felony or lack of continuous residence bars relief under section 212(h) only for those noncitizens who were admitted to the country as LPRs following inspection at a port of entry. In removal proceedings outside of those circuits, the Board of Immigration Appeals (BIA) holds that relief is unavailable to all LPRs convicted of an aggravated felony or who fail to meet the residence requirements after acquiring LPR status, regardless of the manner in which they acquired that status. The Eighth Circuit alone has followed that ruling (leaving only the First and Twelfth Circuits without an opinion on the issue).

This Note describes the split over section 212(h) against the backdrop of current trends in immigration law around statutory interpretation and the agency deference doctrine. It analyzes the current state of U.S. Supreme Court deference to the BIA to understand how this issue might play out in the Court and argues that the plain meaning of the statute supports the holdings by the majority of courts of appeals. It concludes by arguing for application of the immigration rule of lenity.