Martinez v. Atty Gen. of the U.S., No. 11-2258 (3d Cir. 2012)
Annotate this CaseMartinez, a native of Nicaragua, entered the U.S. without inspection in 1985. In 1989, he married a citizen, had a daughter, and began adjusting his status to lawful permanent resident. In 1990, Martinez pleaded guilty to sexual assault of his eight-year-old stepdaughter. In 1991, prior to sentencing, Martinez traveled to Nicaragua to complete the immigrant visa application process. The consulate approved his application. Martinez was admitted to the U.S.as a permanent resident the following day. He was later sentenced to four years in prison. Martinez was released on parole in 1992. The Department of Homeland Security initiated removal in 2009. Martinez argued that he was eligible for adjustment of status under former INA Section 212(c), which waived the bar against status adjustment for convicted aggravated felons who had at least seven years unrelinquished residence, at least five years as an LPR, and had not served more than five years in prison. The IJ found Martinez statutorily ineligible for relief. The BIA agreed that he had “never been lawfully admitted for permanent residence.” The Third Circuit denied review. A person accorded status as “lawfully admitted for permanent residence” upon physical entry, who did not substantively qualify for such status, is barred from relief.
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