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.
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 Type | How Status Obtained | Can Apply for 212(h)? |
|---|---|---|
| Adjusted Status LPR | Adjusted status while already in the U.S. | YES - Not barred by aggravated felony restriction |
| Admitted LPR | Entered at port of entry as LPR | NO - 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:
Your removal would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse, parent, son, or daughter
Evidence of rehabilitation and good moral character since the conviction
Family ties, length of residence, employment history, and community involvement
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.