Aggravated Felony Green Card Bar: BIA's Matter of A-V-O-

A Board of Immigration Appeals precedent turns an aggravated felony conviction into a reason to refuse a green card, not only a reason to deport. It reaches pleas and verdicts entered after Sept. 17, 2026.

The Board of Immigration Appeals has created an aggravated felony green card bar. In Matter of A-V-O-, 30 I&N Dec. 44 (BIA 2026), decided Sept. 17, the Board held that a noncitizen convicted of an aggravated felony is inadmissible as a person “permanently ineligible to citizenship” under section 212(a)(8)(A) of the Immigration and Nationality Act, and it overruled Matter of Kanga, the 2000 precedent that had limited that ground to people who evaded military service. The new reading covers only people seeking admission as immigrants whose aggravated felony conviction rests on a guilty or no-contest plea made, or a jury verdict entered, after the date of the decision.

That cutoff is why the ruling matters now. No existing record changes, but every plea entered in a criminal court since Sept. 17 carries a consequence it did not carry before, and Board precedents bind immigration judges and DHS officers nationwide under 8 C.F.R. 1003.1(g).

How a naturalization rule became an aggravated felony green card bar

The Board built its holding from three provisions. Section 101(f)(8) says a person convicted of an aggravated felony at any time can never show good moral character, which section 316(a) requires for naturalization. Section 101(a)(19) defines “ineligible to citizenship” to include anyone “permanently debarred” from becoming a citizen “under any section of this Act.” And section 212(a)(8)(A) makes any immigrant who is permanently ineligible to citizenship inadmissible.

Kanga had read the definition as confined to the draft-evasion provisions in sections 314 and 315. The Board now calls that reading too narrow. Treating those sections as the only source of permanent ineligibility, it wrote, “would require importing a restriction that Congress simply did not write into the INA.” It also declined to follow Matter of Martin-Arencibia, a 1969 regional commissioner decision holding that a murder conviction did not make a person ineligible to citizenship.

Where the change bites

An aggravated felony has long been a ground of deportability for people already admitted, under section 237(a)(2)(A)(iii). It was not, under that label, a reason to deny a green card. Applicants were screened under the criminal grounds in section 212(a)(2), several of which the section 212(h) waiver can forgive.

Two groups lose ground. The first is anyone convicted of an aggravated felony that falls outside the section 212(a)(2) categories, since the two lists do not fully overlap. The second is applicants who were never permanent residents. Section 212(h) bars the waiver for aggravated felons only if they were previously admitted as permanent residents, so a spouse or parent of a U.S. citizen with a fraud conviction could, before this ruling, ask for a waiver of the moral turpitude ground. Section 212(h) waives only section 212(a)(2) grounds, and the decision identifies no waiver for section 212(a)(8)(A). The practical effect is that, for post-Sept. 17 convictions, an aggravated felony is likely to end an adjustment of status case that a waiver once could have saved.

The pressure point moves into criminal court. Under Padilla v. Kentucky (2010), defense lawyers must advise noncitizen clients about deportation consequences of a plea. Several aggravated felony categories, including theft and crimes of violence, turn on a prison term of at least one year, so how a sentence is structured can now decide whether a client remains eligible for a family- or employment-based green card.

The respondent did not lose because of the new rule. A Nicaraguan visitor who overstayed after entering in 1996, she was convicted in federal court in Florida in 2020 of access device fraud and aggravated identity theft, with restitution of $345,100.14, which the Board treated as a fraud aggravated felony involving a loss above $10,000. The Board affirmed the denial of her adjustment and section 212(h) waiver for lack of extreme hardship to her U.S. citizen son and, alternatively, on discretion.

Questions the Board left open

Returning permanent residents. The decision does not discuss green card holders coming back from a trip abroad. Section 101(a)(13)(C)(v) treats a returning resident as seeking admission because of offenses listed in section 212(a)(2), which does not include section 212(a)(8)(A), so whether the new ground reaches them is unsettled.
Consulates. Board precedents bind DHS officers and immigration judges, not State Department consular officers, so how section 212(a)(8)(A) is applied to immigrant visa applicants abroad is a separate question.
Federal court review. Since Loper Bright Enterprises v. Raimondo (2024), courts of appeals no longer defer to an agency’s reading of an ambiguous statute, so circuits will decide for themselves whether section 101(a)(19) reaches this far. Because only convictions after Sept. 17 count, a test case is unlikely to reach an appeals court for some time.

A-V-O- joins other Volume 30 precedents this fall that narrow relief, including rulings on declarations filed with motions to reopen, continuances for U visa petitioners and asylum for citizens of developed democracies. Unlike those, its weight falls less on pending cases than on plea deals being struck now.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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