Section 212(h) waiver only available when filed with an adjustment application in removal proceedings

The Board of Immigration Appeals (BIA) recently held that a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act can not be filed by itself in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc (after the fact) to avoid the requirement that the alien must establish eligibility for adjustment. Matter of Giovanny RIVAS, 26 I&N Dec. 130 (BIA 2013).
Section 212(h) Waiver
Section 212(h) of the Immigration and Nationality Act (INA) may waive certain criminal convictions when a person is apply for admission into the United States or when a person is apply for adjustment of status in the United States.  (For a discussion of when a lawful permanent resident is considered seeking admission to the United States, follow this link.)
For example, Section 212(h)(1)(A) waives certain criminal activities which are 15 year old before the date of a foreigner application for a visa, admission, or adjustment of status, if the admission would not be contrary to the national welfare, safety, or security of the U.S. and if the foreigner has been rehabilitated. Section 212(h)(1)(B) waives crimes involving moral turpitude in the case of foreigner or lawful resident who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.
Background of RIVAS
The respondent in RIVAS is a native and citizen of Colombia who was admitted to the United States as a lawful permanent resident on August 11, 1998. In 2001, he was convicted of two petit larcenies in Florida and was found deportable by virtue of his having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.  He applied for a waiver of inadmissibility under section 212(h). The respondent left the United States on several occasions after his 2001 convictions, reentered the country, and applied for 212(h) waiver in removal proceedings.  The immigration judge found the respondent inadmissible for reentry, but granted him 212(h) waiver nunc pro tunc pursuant to Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980).
The DHS argues that the respondent can only qualify for a section 212(h) waiver if he also applies for adjustment of status, and since he is not eligible to adjust status, he is ineligible for the waiver. The issue is whether the immigration judge erred in granting the respondent a nunc pro tunc section 212(h) waiver on a “stand alone” basis  without a concurrently filed adjustment application.
BIA Decision
BIA held that the respondent is statutorily ineligible for the waiver because he is neither an arriving alien seeking to waive a ground of inadmissibility nor one seeking to waive inadmissibility in conjunction with an application for adjustment of status.
The respondent’s situation is different from that of the alien in Sanchez because he does not have a pending application for adjustment of status.
The Immigration Act of 1990 amended Section 212(h) by restricting the waiver to foreign nationals who are applying or reapplying “for a visa, for admission to the United States, or adjustment of status.”
On appeal, the respondent also cites Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) to support his eligibility for a 212(h) waiver.    However, BIA noted that since the respondent in Abosi was an arriving alien seeking readmission, he did not have to establish eligibility for adjustment of status. The respondent in RIVAS, however, is in the country in removal proceedings and therefore must file a concurrent adjustment application in order to seek a waiver of the grounds of removal.
Other Federal Circuits including the Fifth Circuit, the Seventh Circuit and the Eleventh Circuit also support the BIA position as a reasonable statutory interpretation of the law.  Because of the rights and privileges lawful permanent residents enjoy, it is arguably proper to hold them to a higher standard and level of responsibility than illegal aliens. Therefore a waiver is not available to them unless they are also otherwise eligible to apply for adjustment.