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U;S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5/07 Leesburg Pike, Suite 2000


Falls Church, Virginia 2204/

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REZA, MOHAMMAD JASHIM DHS LIT.Nork Co. PrisonNOR
28419-009/A093-304-084 3400 Concord Road
PIKE COUNTY CORRECTIONAL FAC York, PA 17402
175 PIKE COUNTY BOULEVARD
LORDS VALLEY, PA 18428

Name: REZA, MOHAMMAD JASHIM A 093-304-084

Date of this notice: 7/18/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

DoYUtL CaAtu
Donna Carr
Chief Clerk

Enclosure

I
Panel Members:
Mullane, Hugh G.
Malphrus, Garry D.

1d
Creppy, Michael J.

For more unpublished BIA decisions, visit !I


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www.irac.net/unpublished/index/
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Cite as: Mohammad Jashim Reza, A0093 304 084 (BIA July 18, 2016)
U.S. n'epartment of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A093 304 084 - York, PA Date:

In re: MOHAMMAD JASHIM REZA a.k.a. MD Jashim Reza JUL 1 8 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net


IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Tiffany A. Javier, Esquire

ON BEHALF OF OHS: Jeffrey Forrest Boyles


Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -


Convicted of aggravated felony (as defined in section 101(a)(43)(M))

Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. 1227(a)(2)(A)(iii)] -


Convicted of aggravated felony (as defined in section 101(a)(43)(U))

APPLICATION: Adjustment of status; waivers of inadmissibility

The respondent, a native and citizen of Bangladesh, appeals from the Immigration Judge's
January 19, 2016, decision 1 pretermitting his applications for adjustment of status and waivers of
inadmissibility. Sections --2.ffi.:,:..and 245(a) of the Immigration and Nationality Act,
8 U.S.C. 1182(h), 1182(i), 1255(a). The Department of Homeland Security opposes the
appeal. The record will be remanded.

We review for clear error the findings of fact, inclug.i!lg th_ ds!termination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).

We will remand the record for further consideration of the respondent's applications for
relief. The Immigration Judge pretermitted the respondent's application for a waiver of
inadmissibility under section 212(h) of the Act, which provides, inter alia, 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 either since the date of
1
The Immigration Judge issued two decisions in this case on January 19, 2016. In one decision,
she pretermitted the respondent's applications for relief; in the other, she ordered him removed.
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--
In this opinion, we refer only to the Immigration Judge's decision in whi siie:pretemuttedthe
_,.,....
respondent's applications.
c.._.-

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. .. -. .._ - --- . .,,,-- . ---

Cite as: Mohammad Jashim Reza, A0093 304 084 (BIA July 18, 2016)
-1 A093 304 084

such admission the alien has been convicted of an aggravated felony ... " She concluded that as
an alien convicted of an aggravated felony, the respondent was unable to establish eligibility for
a section 212(h) waiver. because he is "an alien who has previously been admitted to the
United States as an alien lawfully admitted for permanent residence."2

The Immigration Judge's decision correctly indicates that the respondent's adjustment of

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status to that of lawful permanent resident while he was in the United States did not render him
"an alien who has previously been admitted to the United States as an alien lawfully admitted for
permanent residence" for the purposes of section 212(h) of the Act. Matter of J-H-J-, 26 I&N
Dec. 563 (BIA 2015). Her decision also correctly reflects that at the time the respondent
returned to the United States from a short trip abroad in 2009, he was a returning lawful
permanent resident who was not seeking admission. Matter of Pena, 26 I&N Dec. 613, 618
(BIA 2015) ("a returning lawful permanent resident who does not fall within one of the
exceptions in section 101(a)(13)(C) of the Act cannot be regarded as seeking admission to the
United States"). The Immigration Judge concluded, however, that when the respondent
reentered the United States in 2009, he became "an alien who has previously been admitted to
the United States as an alien lawfully admitted for permanent residence" for the purposes of
section 212(h) of the Act and therefore ineligible for that relief.

We disagree with the Immigration Judge that the respondent was admitted as an alien
lawfully admitted for permanent residence for the purposes of section 212(h) of the Act. The
respondent's 2009 return to the United States as a lawful permanent resident, when it was
undisputed that he was not then seeking admission, did not result in his being admitted at that
time as an alien lawfully admitted for permanent residence. See section 101(a)(13)(C) of the Act
(providing that subject to certain exceptions not applicable in this case, an alien lawfully
admitted for permanent residence in the United States is not regarded as seeking admission into
the United States for the purposes of the immigration laws). Accordingly, he is not per se
ineligible for a waiver of inadmissibility under section 212(h) of the Act as a result of his later
conviction for an aggravated felony. We will therefore remand the record to the Immigration
Judge for further consideration of the respondent's applications for adjustment of status and
waivers of inadmissibility under sections 212(h) and (i) of the Act. We express no opinion at
this time on the merits of the respondent's applications.

ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

---FOR THE BOARD

2
The respondent does not dispute that he has been convicted of an aggravated felony under
sections 101(a)(43)(M) and (U) of the Act and has conceded that he is removable as a result of
this conviction (I.J. at 2; Tr. at 4).

Cite as: Mohammad Jashim Reza, A0093 304 084 (BIA July 18, 2016)