Last week, the Board decided Matter of A-V-O-, 30 I.&N. Dec. 44 (BIA 2026), and overruled Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000).
The new rule claims to be a result of just reading the plain language of the statute, but it does the exact opposite. And by ignoring the words that Congress chose, it creates two large contradictions for aggravated felons, all because the Board claims that “Congress may not have considered” the meaning of the law it is tasked with writing.
To understand the contradiction, let’s start with the new rule: the Board now says that a person convicted of an aggravated felony is inadmissible under INA § 212(a)(8)(A) because an aggravated felony permanently prevents that person from establishing good moral character for naturalization under INA 101. That, in the Board’s view, makes the person “ineligible to citizenship” within the meaning of INA § 101(a)(19). And anyone “ineligible to citizenship” is inadmissible under INA § 212(a)(8)(A). The Board has cobbled together these two unrelated passages to create the rule that it wants, and on its face it has some logical appeal.
But there are two obvious problems with that reading. First, Congress separately addressed what happens when an aggravated felon is removed and later seeks admission. It created a whole mechanism for aggravated felons to apply to come back, including how much time one has to wait and then a process to overcome the resulting inadmissibility. The new rule largely just wishes this part of the statute away. Second, Congress allowed some aggravated felons to apply for 212(h) waivers; but apparently that was all for naught. Just a prank, it seems. You can have a 212(h) waiver, but you can never use it.
Congress specifically provided a way for removed aggravated felons to seek admission again
INA § 212(a)(9)(A) imposes inadmissibility on certain people who have previously been removed. Depending on the circumstances, the ordinary periods are five, ten, or twenty years.
Congress separately addressed aggravated felons.
Under § 212(a)(9)(A)(i) and (ii), someone convicted of an aggravated felony who has been removed is inadmissible “at any time.” The aggravated felony therefore eliminates the normal expiration date for the prior-removal ground.
But Congress then provided an exception.
Section 212(a)(9)(A)(iii) says that the prior-removal ground does not apply if, before the person seeks admission again, the government has consented to the person’s reapplying for admission.
That is the statutory basis for permission to reapply for admission, usually sought on Form I-212.
So the statute specifically contemplates this sequence:
- A person is convicted of an aggravated felony.
- The person is removed.
- The aggravated felony makes the prior-removal ground permanent.
- The person can still ask the government for permission to reapply for admission after waiting for a period of years.
That structure makes sense on its own. Congress imposed a particularly severe consequence for aggravated felons, but it left DHS with discretion to permit a future application for admission.
Then comes A-V-O-.
What does an I-212 accomplish under A-V-O-?
Suppose a person with an aggravated felony is removed and, years later, has a basis to immigrate again.
Section 212(a)(9)(A) says the person remains inadmissible because of the prior removal. The person files an I-212. DHS grants consent to reapply.
The § 212(a)(9)(A) problem has now been addressed exactly as Congress provided.
Under A-V-O-, however, the aggravated felony independently makes the same person forever inadmissible under § 212(a)(8)(A). The Board reasons that the aggravated felony permanently bars the person from establishing good moral character for naturalization, which means the person is “ineligible to citizenship,” which in turn makes the person always inadmissible.
There is no comparable consent-to-reapply exception in § 212(a)(8)(A). Section 212(h) does not waive it either.
The result is strange. Congress expressly created a process by which a removed aggravated felon can obtain permission to reapply for admission. Under the Board’s new interpretation, that process will always be meaningless. Even if the person obtains that permission, created specifically for aggravated felons, they will remain permanently inadmissible because of the same aggravated felony. In essence, the Board’s view is that Congress made a process for aggravated felons to obtain visas but also intended to never allow them to use those visas.
A-V-O- also creates a problem with Matter of J-H-J-, which it never addresses.
There is another provision that becomes difficult to explain under A-V-O-: INA § 212(h).
Section 212(h) contains its own aggravated-felony restriction. But Congress did not make every aggravated felon ineligible for the waiver. The aggravated-felony bar applies to someone who was previously admitted to the United States as a lawful permanent resident and was later convicted of an aggravated felony.
That distinction matters because of Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015). There, the Board held that a person who adjusted to permanent-resident status inside the United States, and who had never entered as an LPR, was not barred from seeking a § 212(h) waiver merely because he had an aggravated-felony conviction. The Board specifically withdrew earlier decisions that had treated adjustment as enough to trigger the aggravated-felony bar.
So under J-H-J-, Congress left at least some aggravated felons eligible for § 212(h).
But according to the outcome in A-V-O-, Congress was just trolling aggravated felons? It must have been, because even with a 212(h) waiver they’d be forever inadmissible anyway.
Under the new rule, an aggravated felon who adjusted status in the United States may still be statutorily eligible for § 212(h) under J-H-J-. The person can waive a crime-related ground of inadmissibility under § 212(a)(2). But A-V-O- says the same aggravated-felony conviction also makes the person inadmissible under § 212(a)(8)(A) as someone permanently “ineligible to citizenship.” Section 212(h) does not waive § 212(a)(8)(A).
So what is left of J-H-J- for convictions covered by the new rule? Nothing, as far as I can tell.
Now a person can establish that Congress did not bar him from receiving a § 212(h) waiver because he adjusted rather than entered as an LPR. He can satisfy the requirements for the waiver. The immigration judge can grant it. Yet he is still forever inadmissible because A-V-O- imposes a different, permanent ground of inadmissibility based on the same aggravated felony. And once he’s deported, that person can wait the 20 years that Congress required and then apply for permission to reenter as Congress said it intended. But that can never be approved because he will be forever inadmissible under a separate section of the law.
The provisions for the 212(h) waiver and the I-212 after 20 years are just a super elaborate goof by Congress, apparently.
This is particularly striking because A-V-O- does discuss the § 212(h) problem generally. In describing Kanga, the Board acknowledges that Kanga was concerned that the broader interpretation of “ineligible to citizenship” would undermine prior Board decisions allowing aggravated felons to seek waivers under § 212(h). The Board’s answer is that Congress “may not have considered the full degree of interplay between the different provisions,” and that the resulting redundancy cannot overcome what the Board views as the plain text.
That is, the Board claims that it’s reading the plain language of the statute, but when the statute contradicts its own “plain language” reading, its explanation is that Congress just didn’t consider the law that it, and only it, has responsibility for writing?
That would not make sense even if the new decision actually addressed Matter of J-H-J-. But it actually never mentions that decision at all.
That omission is hard to overlook. J-H-J- is the Board’s own precedent interpreting the aggravated-felony limitation Congress placed directly into § 212(h). It holds that Congress left a defined class of aggravated felons eligible for the waiver. It’s still good law; the Board hasn’t withdrawn it. But A-V-O- now says that, for future convictions, those same people are independently and permanently inadmissible under § 212(a)(8)(A).
There is one important timing qualification. The Board made A-V-O- prospective. Its new rule applies only where the aggravated-felony conviction results from a guilty or nolo contendere plea, or a jury verdict, entered after September 17, 2026. So J-H-J- continues to have real significance for older convictions.
Going forward, however, the two decisions make no sense together. J-H-J- says Congress deliberately left some aggravated felons eligible for § 212(h). A-V-O- says those same aggravated felons are permanently inadmissible on another ground that § 212(h) cannot waive.
That is another reason the statutory problem in A-V-O- cannot simply be dismissed as harmless redundancy. Congress repeatedly wrote provisions that make sense only if at least some aggravated felons can eventually become admissible. The Board’s new rule makes those provisions increasingly difficult to explain.
Matter of Kanga saw this problem
This is one of the reasons Matter of Kanga rejected the interpretation the Board has now adopted.
Kanga held that the phrase “ineligible to citizenship” in § 212(a)(8)(A) did not sweep in every person who was permanently unable to naturalize. Looking at the statutory history and structure, the Board understood the phrase more narrowly.
Part of the reasoning was that the government’s broader interpretation would make other provisions of the INA basically impossible to explain.
A-V-O- discusses that concern for the 20-year process and I-212. It acknowledges that Kanga relied in part on the fact that reading § 212(a)(8)(A) to cover aggravated felons would make other provisions, including § 212(a)(9)(A), substantially redundant.
Either way, § 212(a)(9)(A) is not some distant provision dealing with an unrelated subject. It is another inadmissibility provision in the same section of the statute. And Congress expressly mentioned aggravated felonies there. The Board’s rationalize is that Congress must not have been thinking straight when it wrote this part of the law. Really.
Congress knew how to say that an aggravated felony creates inadmissibility. It did exactly that in § 212(a)(9)(A). When Congress did so, it also provided a mechanism for overcoming that inadmissibility.
Under A-V-O-, much of that statutory scheme stops making sense.
If every aggravated felon is already permanently inadmissible under § 212(a)(8)(A), why did Congress separately specify that a removed aggravated felon is inadmissible “at any time” under § 212(a)(9)(A)? And why did it carve out an exception to the 212(h) waiver to allow some aggravated felons to apply for waivers?
More importantly, why did Congress expressly allow that person to seek consent to reapply for admission?
The Board’s new reading leaves Congress providing two separate remedies for one aggravated-felony-related ground of inadmissibility while another provision silently prevents the person from immigrating anyway.
An executive agency doesn’t get to ignore the statute Congress wrote and then explain that Congress “may not have considered the full degree of interplay” which essentially means “Congress didn’t mean what it said.” But until the federal court step in, that is in fact the new reality for aggravated felons.