     Case: 11-60201     Document: 00511884994         Page: 1     Date Filed: 06/12/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           June 12, 2012

                                       No. 11-60201                        Lyle W. Cayce
                                                                                Clerk

JORGE A. ARELLANO-ACOSTA,

                                                  Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL

                                                  Respondent



                          Petition for Review of an Order of
                          the Board of Immigration Appeals
                                BIA No. A075 214 800


Before JONES, Chief Judge, and WIENER and GRAVES, Circuit Judges.
PER CURIAM:*
        Petitioner Jorge A. Arellano-Acosta, a native and citizen of Mexico, entered
the United States without inspection in 1995. In 1997, his status was adjusted
to that of a lawful permanent resident (“LPR”) pursuant to 8 U.S.C. § 1255(i).
In    February 2010, the          Department of         Homeland Security charged
Arellano-Acosta with being inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I)
because of his 2006 conviction in Nevada state court of a crime of moral
turpitude. The Immigration Judge held, and the Board of Immigration Appeals

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                        No. 11-60201

(“BIA”) agreed, that Arellano-Acosta (1) is inadmissible on those grounds, and
(2) is not eligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h) because
his Nevada crime of conviction is an aggravated felony.
      Section 1182(h) provides, in relevant part:
      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[.]1

With respect to an alien, the Immigration and Nationality Act defines
“admission” and “admitted” to mean “the lawful entry of the alien into the United
States after [1] inspection and [2] authorization by an immigration officer.”2
      In Martinez v. Mukasey,3 we reasoned, based on this statutory language,
that (1) an alien who had never lawfully entered into the United States after
inspection and authorization was never “admitted to the United States,” and (2)
a post-entry adjustment of status does not qualify as an admission. We held,
therefore, that an alien like Martinez, who becomes an LPR only after entering
the United States, remains eligible for a waiver of inadmissibility under 8 U.S.C.
§ 1182(h).4
      Martinez squarely applies to the instant case. On the basis of its prior
decision in Matter of Koljenovic,5 the BIA attempted to distinguish this case from
Martinez on the grounds that the alien in Martinez had entered the United
States lawfully as a non-immigrant visitor before becoming an LPR. Our


      1
          Emphasis added.
      2
          8 U.S.C. § 1101(13)(A) (emphasis added).
      3
          519 F.3d 532, 544 (5th Cir. 2008).
      4
          Id. at 546.
      5
          25 I. & N. Dec. 219, 223 (BIA 2010).

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                                       No. 11-60201

holding in Martinez, however, was not predicated on whether the alien had
entered the United States (1) pursuant to a lawful, non-permanent status, as in
that case, or (2) without any lawful status, as in the present case and Koljenovic.
Rather, we held more broadly in Martinez that (1) according to the unambiguous
statutory text, an admission requires a lawful entry into the United States after
inspection and authorization, and (2) an adjustment in status after an alien is
already in the United States does not qualify as an admission. Indeed, if an
alien, like Martinez, who legally entered the United States as a visitor, was
never “admitted” for purposes of § 1182(h), then an alien like Arellano-Acosta,
who entered the United States without any legal status at all, certainly should
not be deemed to have been “admitted.” Since its ruling in Koljenovic, the BIA
has recognized the breadth of our holding in Martinez, announcing in Matter of
Rodriguez6 (decided after the BIA’s decision in this case) that, for cases arising
in the Fourth, Fifth, and Eleventh Circuits, an adjustment of legal status cannot
be considered an admission for purposes of § 1182(h), notwithstanding the
purported distinction set out by the BIA in Koljenovic.
      Because Martinez controls, Arellano-Acosta is eligible for a waiver of
inadmissibility. We therefore reverse the BIA’s decision and remand this case
to the BIA with instructions to remand it to the Immigration Judge for a full and
appropriate evidentiary hearing on the admittedly discretionary question of
Petitioner’s entitlement to a waiver of inadmissibility. In light of our remand
with instructions, we deny Respondent’s motion to remand this case without
decision.
      REVERSED and REMANDED with instructions.




      6
          25 I. & N. Dec. 784, 788 (BIA 2012).

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