CA11 on 212(h): Rivas v. U.S. Attorney General

"This petition for review requires us to decide whether a deportable alien who has left and reentered the United States may obtain nunc pro tunc a waiver of inadmissibility. See Immigration and Nationality Act § 212(h), 8 U.S.C. § 1182(h). The State of Florida twice convicted petitioner Giovanny Rivas of petit larceny, which rendered him removable. But before the Department of Homeland Security initiated removal proceedings, Rivas left the United States and then reentered on three separate occasions without notifying border officials of his ineligibility to reenter. After the Department initiated removal proceedings, an immigration judge granted Rivas a waiver of inadmissibility, 8 U.S.C. § 1182(h), based on Matter of Sanchez, 17 I. & N. Dec 218 (BIA 1980) (holding that a waiver is retroactively available if an alien could have received one when seeking reentry at the border but who now seeks one from within the United States). When the Department appealed, the Board of Immigration Appeals interpreted the waiver provision, 8 U.S.C. § 1182(h), which Congress amended after the Board decided Matter of Sanchez, to require that an alien seek a waiver of inadmissibility when he applies for a visa, admission to the United States, or an adjustment of status. The Board ordered Rivas removed on the ground that he failed to file an application for an adjustment of status concurrently with his application for a waiver. Because that interpretation of the waiver provision, as amended, was reasonable, we deny Rivas’s petition for review." - Rivas v. U.S. Atty. Gen., Sept. 3, 2014.