Sometimes a consequential immigration decision turns not on a new act of Congress or a ruling by the Supreme Court, but on whether an agency finally gives existing statutory language its full effect. That is the promise of Matter of A-V-O-, a Sept. 17 ruling by the Board of Immigration Appeals. The board concluded that an aggravated felony conviction can do more than make an alien removable: It can also make that person inadmissible as an immigrant because the conviction permanently forecloses citizenship.
That could prove quite helpful to the Department of Homeland Security. But promising precedent is not the same thing as a settled enforcement policy, much less a final judicial victory. How DHS uses this decision in charging cases—and whether the federal courts of appeals sustain it—will determine whether its promise becomes practice.
The underlying facts are common and hardly a model of respect for American law. The respondent, a Nicaraguan citizen, entered the United States on a visitor visa in 1996 and overstayed. She was ordered removed in absentia in 2004, but later successfully reopened her immigration proceedings in 2019. In 2020, she was convicted in federal court of using an unauthorized access device and aggravated identity theft, receiving prison sentences of eight months and 24 months, respectively.
She disputed whether her crimes crossed the statutory threshold for an “aggravated felony” involving fraud or deceit: losses exceeding $10,000. Her argument concentrated on the fact that she spent $3,450.42 to purchase five cellular phones. But the government identified total losses of $345,100.14, and the trial judge ordered restitution in that amount, jointly and severally with her co-defendants.
The Board of Immigration Appeals rejected her attempt to make the one transaction stand for the whole offense. Applying the Supreme Court’s circumstance-specific approach, the board found the restitution amount tethered to her convicted conduct. The phone purchase was an example, not the totality of her culpability. And sharing responsibility for restitution with co-defendants did not eliminate her own responsibility for the loss. The aggravated-felony removal charge stood.
The more consequential question was what follows from that classification. Immigration law distinguishes between removability and inadmissibility. An alien’s eligibility for removal does not, by itself, resolve whether that person can obtain lawful permanent residence through adjustment of status and an available waiver.
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The board’s new interpretation adds clarity to a separate statutory obstacle.
The reasoning proceeds through a chain of statutory provisions. Naturalization generally requires good moral character. An aggravated felony conviction permanently bars the required finding of good moral character.
Section 212(a)(8)(A) of the Immigration and Nationality Act, meanwhile, makes an immigrant permanently ineligible for citizenship inadmissible. Critically, Congress defined ineligibility for citizenship to include not only certain military-service-related bars, but also permanent debarment under “any section” of the Immigration and Nationality Act or another act.
The board read that catchall to mean what it says. A conviction for an aggravated felony makes a person permanently unable to satisfy the naturalization requirements and falls within that definition and, consequently, the citizenship-related ground of inadmissibility.
The Board of Immigration Appeals specifically overturned one of its previous decisions: a Matter of Kanga, a 2000 board decision limiting the provision to military service evasion. The board also declined to follow a similarly restrictive 1969 administrative decision. Those precedents relied on legislative history, statutory context, and concerns about how a broader interpretation would affect other provisions and waiver eligibility.
The new decision’s answer is refreshingly direct: Adjudicators do not get to narrow statutory language because its consequences are substantial. Nor does overlap between provisions supply a license to rewrite one of them. If Congress used a catchall to include permanent citizenship bars elsewhere in the law, an agency cannot confine it to military service simply because that was the historical focus of earlier cases.
That is a serious textual argument, not a substitute for one. But it still must withstand judicial examination. Reviewing courts will have to decide whether a permanent inability to establish good moral character amounts to permanent debarment from citizenship within this particular statutory definition, and whether the board’s reading fits the broader immigration scheme.
Declaring the text clear does not relieve an agency of demonstrating that its interpretation is correct.
In overturning Kanga, the board recognized that changing longstanding precedent carries consequences of its own. It therefore made the new rule prospective. It applies only to aliens seeking admission as immigrants who incur aggravated felony convictions based on guilty or no-contest pleas made, or jury verdicts entered, after Sept. 17.
That limitation is not fine print. The triggering event is the plea or verdict—not merely a later charging decision or immigration hearing. The ruling is not an invitation to apply the new interpretation to every old aggravated felony conviction. Indeed, the board expressly weighed reliance on its former precedent and the disruption retroactive application could cause.
For that reason, the respondent herself did not lose under the new rule. She lost under existing standards. The board upheld the finding that she had not established the extreme hardship to a qualifying relative required for her requested waiver. It also affirmed the independent discretionary denial, concluding that her serious and escalating criminal conduct outweighed her favorable equities. Without the waiver, adjustment of status failed. Her torture-protection claim likewise lacked the necessary individualized showing, and the board rejected her procedural challenge.
The larger lesson is one of both consequence and restraint. A-V-O- could give DHS a useful additional ground of inadmissibility in qualifying future cases. It does not erase statutory distinctions, dispense with proof, or guarantee that every charging decision will succeed.
Only time will tell how DHS deploys it and whether appellate courts uphold it. The board has put a potentially powerful tool on the table. Whether it becomes a durable instrument of immigration enforcement remains to be seen.
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