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Cite as 30 I&N Dec. 44 (BIA 2026) 	Interim Decision #4245
Matter of A-V-O-, Respondent
Decided September 17, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who has been convicted of an aggravated felony is inadmissible under section
212(a)(8)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(8)(A) (2024), as
an alien who is ineligible to citizenship. Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000),
overruled.
FOR THE RESPONDENT: Maria Davydova, Esquire, Winter Garden, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lindsay E. Daniels, Counsel
BEFORE: 	Board Panel: 	GORMAN, Deputy Chief Appellate Immigration Judge;
GALLOW, Appellate Immigration Judge; PICOS, Temporary Appellate Immigration
Judge.
GORMAN, Deputy Chief Appellate Immigration Judge:
The respondent, a native and citizen of Nicaragua, appeals from the
Immigration Judge’s July 29, 2021, decision holding that she is removable
as charged and denying her applications for relief and protection from
removal. The Board requested and received supplemental briefs from both
parties. We will dismiss the appeal.
I. PROCEDURAL AND FACTUAL BACKGROUND
On June 20, 1996, the respondent was admitted into the United States on
a visitor visa. She overstayed her period of authorized stay, and in 2004 the
Department of Homeland Security (“DHS”) issued a notice to appear
(“NTA”) charging the respondent as removable under section 237(a)(1)(B)
of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(B)
(2000). 	On December 15, 2004, the Immigration Judge ordered the
respondent removed in absentia. 	On March 5, 2019, the respondent filed a
motion to reopen her removal proceedings, which the Immigration Judge
granted.
The respondent admitted the allegations in the NTA and conceded the
section 237(a)(1)(B) charge. 	DHS filed a Form I-261, Additional Charges
of Inadmissibility/Deportability, lodging two additional factual allegations

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and an additional removal charge under section 237(a)(2)(A)(iii) of the INA,
8 U.S.C. § 1227(a)(2)(A)(iii) (2018). The Immigration Judge sustained both
removal charges and denied the respondent’s applications for adjustment of
status in conjunction with a section 212(h) waiver and for deferral of removal
under the regulations implementing the Convention Against Torture.1
II. LEGAL ANALYSIS
A. Aggravated Felony Conviction
The respondent was convicted on January 31, 2020, in the United States
District Court for the Southern District of Florida of one count of “Use of
Unauthorized Access Device” in violation of 18 U.S.C. § 1029(a)(2), for
which she was sentenced to serve 8 months in prison, and one count of
“Aggravated Identity Theft,” in violation of 18 U.S.C. § 1028A(a)(1), for
which she was sentenced to serve 24 months in prison. DHS argues that the
respondent’s 	convictions 	are 	aggravated 	felonies 	under 	section
101(a)(43)(M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(M)(i) (2024), which
defines an aggravated felony as an offense that “involves fraud or deceit in
which the loss to the victim or victims exceeds $10,000.”
The respondent does not contest the Immigration Judge’s determination
that the respondent’s offenses involve fraud or deceit. 	The respondent
contends instead that her convictions are not for aggravated felonies under
section 101(a)(43)(M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(M)(i), because
the loss to the victim from her convicted conduct did not exceed the statutory
threshold of $10,000. 	The respondent argues that the indictment and the
factual proffer in the record establish that the loss amount tethered to her
conviction is $3,450.42. 	She contends that the Immigration Judge clearly
erred in finding that the loss amount tethered to her conviction is $345,100.14
because that monetary amount is assigned to a co-defendant, and not the
respondent.
We use a “circumstance-specific” approach to determine whether the
respondent’s offense involved loss exceeding $10,000. Nijhawan v. Holder,
1 	The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020). 	The respondent conceded that her criminal history renders her
statutorily ineligible for asylum and withholding of removal under the INA. 	See INA
§§ 208(b)(2)(A)(ii), (B)(i), 241(b)(3)(B)(ii), 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i),
1231(b)(3)(B)(ii) (2024).

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557 U.S. 29, 38–43 (2009); accord Matter of F-R-A-, 28 I&N Dec. 460, 462
(BIA 2022). The circumstance-specific approach requires an adjudicator to
“look to the facts and circumstances underlying an offender’s conviction.”
Nijhawan, 557 U.S. at 34; see also Garcia-Simisterra v. U.S. Att’y Gen.,
984 F.3d 977, 981 (11th Cir. 2020) (holding that “in order to determine
whether the amount of loss exceeds $10,000 . . . we may consider the entire
record from a person’s conviction”). 	Further, the loss amount must be
tethered to the counts of conviction and “cannot be based on acquitted or
dismissed counts or general conduct.” 	Nijhawan, 557 U.S. at 42 (citation
omitted); accord Matter of F-R-A-, 28 I&N Dec. at 462.
The respondent’s judgment of conviction explicitly identifies the “total
loss” from the respondent’s convicted conduct as $345,100.14 and orders her
to pay $345,100.14 in restitution. See Nijhawan, 557 U.S. at 42–43 (holding
that it is appropriate to rely on, among other things, a restitution order to
determine amount of loss). The judgment also identifies the respondent’s co-
defendants and orders that “[r]estitution is owed jointly and severally by the
defendant 	and 	co-defendants 	in 	the 	above 	case” 	in 	the 	amount 	of
$345,100.14. The fact that the district court also imposed a joint and several
obligation upon the respondent’s co-defendants to pay the full amount of the
victim’s loss does not absolve the respondent of her responsibility for the full
amount of that loss. 	See Black’s Law Dictionary (12th ed. 2024) (defining
joint and several liability as “[l]iability that may be apportioned either among
two or more parties or to only one or a few select members of the group, at
the adversary’s discretion”).2
Contrary to the respondent’s argument on appeal, the indictment and the
respondent’s factual proffer do not support her claim that the total loss from
her convicted conduct was limited to $3,450.42. Both the indictment and the
respondent’s factual proffer identify the $3,450.42 figure as the amount that
the respondent paid to purchase five cellular phones on July 21, 2018, at a
2 	The respondent’s contention that the federal district court assigned the full restitution
amount of $345,100.14 to one of the respondent’s co-defendants is a misreading of the text
of the judgment. The respondent appears to base her argument on the fact that, at page 6
of the judgment in the respondent’s case, there is a box which lists the respondent’s co-
defendants and then two separate boxes identifying the “Total Amount” of the loss and the
“Joint and Several Amount.” The dollar figures appear in the middle of the boxes, which
happen to line up with the name of one of the respondent’s co-defendants. However, it is
clear from a reading of that page, as well as the judgment in its entirety, that the judgment
orders the respondent to pay $345,100.14 in restitution for her convicted conduct. Contrary
to the respondent’s argument, the boxes on page 6 do not mean that only the respondent’s
co-defendant is responsible for the total loss amount, as well as the “Joint and Several
Amount” of $345,100.14.

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retail store in Miami, Florida. 	The reference in the indictment to the
respondent’s July 21, 2018, purchase of the cellular phones for $3,450.42 is
presented in Count One of the indictment as evidence of “at least one” act by
the respondent in furtherance of a charged conspiracy by her and her co-
defendants to commit violations of 18 U.S.C. § 1029(a)(2).3 The reference
in the respondent’s factual proffer to the July 21, 2018, purchase of the
cellular phones for the dollar amount of $3,450.42 is presented as one
“example” of the respondent’s conduct that the parties agree is “sufficient to
prove Counts 3 and 10 of the indictment beyond a reasonable doubt.”
The record here demonstrates that the $345,100.14 restitution amount is
the amount that the sentencing judge ordered the respondent to pay the
victim, and that is the associated loss amount tethered to her convicted
conduct. 	Thus, 	the 	Immigration 	Judge 	properly 	determined 	that 	the
respondent 	was 	convicted 	of 	an 	aggravated 	felony 	under 	section
101(a)(43)(M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(M)(i), and is removable
under that charge.
B. Aggravated Felons are “Permanently Ineligible to Citizenship”
The respondent’s aggravated felony convictions render her not only
removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), but
also unable to fulfill the requirements for naturalization. 	Section 316(a) of
the INA, 8 U.S.C. § 1427(a) (2024), explicitly states that “[n]o person, except
as 	otherwise 	provided 	in 	this 	title, 	shall 	be 	naturalized, 	unless 	such
applicant . . . (3) during all the periods referred to in this subsection has been
and still is a person of good moral character.” Section 101(f)(8) of the INA,
8 U.S.C. § 1101(f)(8) (2024), in turn, precludes a finding of good moral
character for “one who at any time has been convicted of an aggravated
felony (as defined in subsection (a)(43)).” See Sebastian-Soler v. U.S. Att’y
Gen., 409 F.3d 1280, 1287 n.14 (11th Cir. 2005) (per curiam) (explaining
that the alien is “now statutorily ineligible for citizenship by virtue of his
having committed aggravated felonies”).
The question we must answer here is whether the respondent’s inability
to satisfy the naturalization requirements also means that she is “permanently
ineligible to citizenship” under sections 101(a)(19) and 212(a)(8)(A) of the
INA, 8 U.S.C. §§ 1101(a)(19), 1182(a)(8)(A) (2024), and is therefore
inadmissible and ineligible to adjust her status.
3 	The respondent was not convicted on Count One of the indictment. The respondent
pled guilty to, and was convicted on, Counts 3 and 10 of the indictment.

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In addressing this issue, the Board must begin with the plain language of
the INA. 	See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“As with
any question of statutory interpretation, [the] analysis begins with the plain
language of the statute.”). “The plainness or ambiguity of statutory language
is determined by reference to the language itself, the specific context in
which that language is used, and the broader context of the statute as a
whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also Matter
of C-T-L-, 25 I&N Dec. 341, 345 (BIA 2010) (explaining that the Board does
not “view the language of statutory provisions in isolation but instead [is]
charged with reading the words ‘in their context and with a view to their
place 	in 	the 	overall 	statutory 	scheme’”) 	(quoting 	FDA 	v. 	Brown 	&
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). 	“In construing a
statute we are obliged to give effect, if possible, to every word Congress
used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Further, “[w]hen
the words of a statute are unambiguous,” then a court is precluded from
referring to the statute’s legislative history to support a contrary construction
of the law. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992).
Section 212(a)(8) of the INA, 8 U.S.C. § 1182(a)(8), explicitly identifies
aliens who are “[i]neligible for citizenship” as among those who are
inadmissible. It provides in full:
(8) Ineligible for Citizenship
(A) In General
Any immigrant who is permanently ineligible to citizenship is inadmissible.
(B) Draft Evaders
Any person who has departed from or who has remained outside the United States
to avoid or evade training or service in the armed forces in time of war or a period
declared by the President to be a national emergency is inadmissible, except that this
subparagraph shall not apply to an alien who at the time of such departure was a
nonimmigrant and who is seeking to reenter the United States as a nonimmigrant.
Section 212(a)(8) of the INA, 8 U.S.C. § 1182(a)(8), was enacted in 1990
with the passage of the Immigration Act of 1990, Pub. L. No. 101-649, 104
Stat. 4978 (“IMMACT 90”). 	Prior to IMMACT 90, the INA identified 33
classes of aliens who “shall be ineligible to receive visas and shall be
excluded from admission into the United States,” and included as a class:
Aliens who are ineligible to citizenship, except aliens seeking to enter as
nonimmigrants; or persons who have departed from or who have remained outside
the United States to avoid or evade training or service in the armed forces in time of
war or a period declared by the President to be a national emergency, except aliens

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who were at the time of such departure nonimmigrant aliens and who seek to reenter
the United States as nonimmigrants.
INA 	§ 	212(a)(22), 	8 	U.S.C. 	§ 	1182(a)(22) 	(1952). 	Thus, 	the 	1990
recodification of former section 212(a)(22) into section 212(a)(8) of the INA,
8 	U.S.C. 	§ 	1182(a)(8), 	created 	two 	subsections, 	added 	the 	word
“permanently” 	before 	“ineligible 	to 	citizenship,” 	and 	removed 	from
subsection (A) the exception for aliens seeking to enter as nonimmigrants.
Under a plain language reading of section 212(a)(8)(A) of the INA,
8 U.S.C. § 1182(a)(8)(A), immigrants who are permanently ineligible to
citizenship are inadmissible, and nothing in the text of the provision limits
its scope to only immigrants who are ineligible to citizenship due to their
evasion of military service. 	Instead, the statute clearly demarcates two
separate categories of aliens who are inadmissible—immigrants who are
permanently 	ineligible 	to citizenship, and 	“[a]ny person” who left or
remained outside of the United States to evade military service, except for
those who departed and seek to reenter as nonimmigrants.
The INA defines the phrase “ineligible to citizenship” as follows:
The term “ineligible to citizenship,” when used in reference to any individual, means,
notwithstanding the provisions of any treaty relating to military service, an individual
who is, or was at any time, permanently debarred from becoming a citizen of the
United States under section 3(a) of the Selective Training and Service Act of 1940,
as amended (54 Stat. 885; 55 Stat. 844), or under section 4(a) of the Selective Service
Act of 1948, as amended (62 Stat. 605; 65 Stat. 76) [50 U.S.C. App. 454], or under
any section of this Act, or any other Act, or under any law amendatory of,
supplementary to, or in substation for, any of such sections or Acts.
INA § 101(a)(19), 8 U.S.C. § 1101(a)(19) (emphasis added). 	With the
exception of a minor technical revision, the terms of this statute have
remained the same since the provision was first enacted in 1952, as we
observed in Matter of Kanga, 22 I&N Dec. 1206, 1211 (BIA 2000). “When
a statute includes an explicit definition, we must follow that definition, even
if it varies from that term’s ordinary meaning.” 	Stenberg v. Carhart,
530 U.S. 914, 942 (2000). The plain language of the catchall phrase at the
end of section 101(a)(19) of the INA, 8 U.S.C. § 1101(a)(19), is forward-
looking and makes clear that persons debarred from citizenship in other
sections of the INA are likewise ineligible to citizenship.
Section 101(a)(19) of the INA, 8 U.S.C. § 1101(a)(19), employs the term
“permanently debarred from becoming a citizen” while section 212(a)(8)(A)
of the INA, 8 U.S.C. § 1182(a)(8)(A), uses the term “permanently ineligible

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to citizenship.” 	We have not found any legal authority that indicates these
terms are intended to be interpreted differently from each other, and we
therefore consider them in pari materia, construing them in like manner with
reference to each other. See Matter of D-E-, 6 I&N Dec. 698, 701 (BIA 1955)
(construing the phrases “permanently debarred from becoming a citizen” in
section 	101(a)(19) 	of 	the 	INA, 	8 	U.S.C. 	§ 	1101(a)(19) 	(1952), 	and
“permanently ineligible to become a citizen” in section 314 of the INA,
8 U.S.C. § 1425 (1952), in pari materia).
Thus, 	under 	a 	plain 	language 	analysis 	of 	sections 	101(a)(19),
212(a)(8)(A), 	and 	316(a) 	of 	the 	INA, 	8 	U.S.C. 	§§ 	1101(a)(19),
1182(a)(8)(A), 	1427(a), 	the 	respondent’s 	aggravated 	felony 	conviction
renders her ineligible to naturalize under section 316(a) of the INA, 8 U.S.C.
§ 1427(a), and therefore “permanently debarred” from citizenship and
“ineligible to citizenship” as defined in section 101(a)(19) of the INA,
8 U.S.C. § 1101(a)(19). She is thus inadmissible under section 212(a)(8)(A)
of the INA, 8 U.S.C. § 1182(a)(8)(A). 	In short, an alien who has been
convicted of an aggravated felony is inadmissible under section 212(a)(8)(A)
of the INA, 8 U.S.C. § 1182(a)(8)(A), as an alien who is ineligible to
citizenship.
C. Overruling Matter of Kanga
Our decision today overturns Matter of Kanga, 22 I&N Dec. at 1206, and
declines to follow Matter of Martin-Arencibia, 13 I&N Dec. 166 (R.C.
1969). 	The Board previously held in Matter of Kanga, 22 I&N Dec. at
1212–15, that the phrase “ineligible to citizenship” in section 212(a)(8) of
the INA, 8 U.S.C. § 1182(a)(8), is limited to only those individuals who are
ineligible to citizenship due to their evasion of military service. The Board
relied on the “legislative and interpretative underpinnings” of sections
101(a)(19), 212(a)(8), 314, and 315, 8 U.S.C. §§ 1101(a)(19), 1182(a)(8),
1425, 1426 (2000), to hold “that, within the meaning of the [INA], the phrase
‘ineligible to citizenship’ refers to military service evasion.” Id. at 1212. The
Board determined that to rule otherwise would render other statutory
provisions superfluous and would undermine the Board’s earlier precedential
decisions holding that aliens charged with aggravated felonies that also
render them inadmissible may apply for waivers of inadmissibility under
former section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed), and section
212(h) of the INA, 8 U.S.C. § 1182(h) (2000). Id. at 1212–13.
However, the Board erred in Matter of Kanga by failing to apply a plain
language analysis to sections 101(a)(19) and 212(a)(8) of the INA, 8 U.S.C.
§§ 1101(a)(19), 1182(a)(8). 	Nothing in the text of section 212(a)(8)(A) of

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the INA, 8 U.S.C. § 1182(a)(8)(A), suggests, much less states, that its
coverage is limited to aliens who have evaded military service and therefore
are ineligible to naturalize pursuant to sections 314 and 315 of the INA,
8 U.S.C. §§ 1425, 1426. 	Similarly, sections 314 and 315 of the INA,
8 U.S.C. §§ 1425, 1426, do not explicitly state or imply that permanent
ineligibility to citizenship arises only under those draft evasion provisions.
To read either of those sections as being the exclusive source for permanent
ineligibility 	to 	citizenship 	within 	the 	INA 	would 	require 	importing 	a
restriction that Congress simply did not write into the INA.
Further, the statutory text of section 212(a)(8)(B) of the INA, 8 U.S.C.
§ 1182(a)(8)(B), specifically identifies as inadmissible those aliens who have
departed from or remained outside the United States to “avoid or evade
training or service in the armed forces in time of war or a period declared by
the President to be a national emergency.” 	There would be no reason for
Congress to specifically identify individuals evading military service as
inadmissible under that provision if subsection (A) of that statute applied
only to military service evaders as the Board held in Matter of Kanga,
22 I&N Dec. at 1212.
Moreover, the Board’s analysis in Matter of Kanga, 22 I&N Dec. at
1212–15, did not address the catchall phrase at the conclusion of section
101(a)(19) of the INA, 8 U.S.C. § 1101(a)(19). Congress explicitly defined
“ineligible to citizenship” at section 101(a)(19) of the INA, 8 U.S.C.
§ 1101(a)(19), to include not only individuals who evade military service but
also aliens debarred from citizenship under “any” section of the INA or any
other Act.
The Board’s decision in Matter of Kanga, 22 I&N Dec. at 1212–15,
improperly 	strays 	from 	this 	plain 	language 	when 	reasoning 	that 	the
“legislative history pertaining to the [1952] enactment of section 101(a)(19)
and 	[Board] 	case 	law 	interpreting 	this 	provision 	make 	clear 	that 	its
applicability is limited to the military service arena.” 22 I&N Dec. at 1211.
When the words of a statute are unambiguous, a court is precluded from
referring to the statute’s legislative history to support a contrary construction
of the law. Connecticut Nat. Bank, 503 U.S. at 254.
The Board in Matter of Kanga similarly strayed from a plain language
analysis when it cited concerns that holding that aliens with aggravated
felony convictions are ineligible to citizenship and therefore inadmissible
under section 212(a)(8)(A) of the INA, 8 U.S.C. § 1182(a)(8)(A), would
render 	superfluous 	other 	provisions 	of 	the 	INA, 	including 	sections
212(a)(9)(A)(i) and (ii), 8 U.S.C. § 1182(a)(9)(A)(i), (ii) (2000), and would

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also undermine prior decisions of the Board interpreting the applicability of
certain waivers of inadmissibility. 22 I&N Dec. at 1212–13. Given that the
provisions of sections 101(a)(19) and 212(a)(8)(A) of the INA, 8 U.S.C.
§§ 1101(a)(19), 1182(a)(8)(A), were in effect decades before the aggravated
felony provisions of the INA were enacted in 1990, Congress may not have
considered the full degree of interplay between the different provisions. This
is not a reason, however, to ignore the plain language of the INA and read a
limitation into sections 101(a)(19) and 212(a)(8)(A) of the INA, 8 U.S.C.
§§ 1101(a)(19), 1182(a)(8)(A), that is not in the statutory text. See Barton v.
Barr, 590 U.S. 222, 239 (2020) (noting that “redundancies are common in
statutory drafting—sometimes in a congressional effort to be doubly sure,
sometimes because of congressional inadvertence or lack of foresight, or
sometimes simply because of the shortcomings of human communication,”
and that“[r]edundancy in one portion of a statute is not a license to rewrite or
eviscerate another portion of the statute contrary to its text”).
The Board in Matter of Kanga also reasoned that if Congress had
intended aggravated felons to be inadmissible, it would simply have added
an aggravated felony conviction to the list of categories of inadmissibility at
section 212(a) of the INA, 8 U.S.C. § 1182(a), “particularly in the context of
the amendments made to the Act in 1996, which included significant
changes, 	both 	to 	the 	definition 	of 	an 	aggravated 	felony 	and 	to 	the
immigration consequences of having been convicted of such an offense.”
Matter of Kanga, 22 I&N Dec. at 1213. This reasoning, however, is based
on speculation and not consistent with the plain language of the INA. 	See
United States v. Price, 361 U.S. 304, 313 (1960) (“[T]he views of a
subsequent Congress form a hazardous basis for inferring the intent of an
earlier one.”).
Further, because Congress defined the term “ineligible to citizenship” in
1952 in a forward-looking manner to include aliens “permanently debarred
from” citizenship under any section of the INA or other Act, there was no
reason for Congress to add, by way of the 1996 amendments to the INA, an
aggravated felony conviction to the list of categories of inadmissibility at
section 212(a) of the INA, 8 U.S.C. § 1182(a). Once Congress rendered (by
way of the 1990 enactments to the INA) an aggravated felon unable to meet
the requirements for citizenship under section 316 of the INA, 8 U.S.C.
§ 1427, that same aggravated felon was rendered ineligible to citizenship
under 	section 	101(a)(19) 	of 	the 	INA, 	8 	U.S.C. 	§ 	1101(a)(19), 	and
inadmissible 	under 	section 	212(a)(8)(A) 	of 	the 	INA, 	8 	U.S.C.
§ 1182(a)(8)(A). 	See Marvin M. Brandt Revocable Tr. v. United States,
572 U.S. 93, 109 (2014) (recognizing that subsequent legislative events are
particularly ill-suited to determine prior intent where the subsequent actions

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do not alter the already-enacted statutory provision or otherwise “shed light
on what . . . Congress intended” in its original enactment); see also Matter of
Campos-Torres, 22 I&N Dec. 1289, 1293 (BIA 2000) (“Our task is not to
improve on the statute or to question the wisdom of it, but rather to interpret
the language that was enacted as law.”).
The Board in Matter of Kanga, 22 I&N Dec. at 1214, also cited to
“[r]elevant case law [that] has consistently discussed section 101(a)(19) of
the Act with respect to military service and with reference to sections 314
and 315 of the Act.” 	However, with the exception of Matter of Martin-
Arencibia, 13 I&N Dec. at 166, which is discussed below, the cited decisions
do not advance the holding in Matter of Kanga because they only addressed
aliens who had evaded military service. 	Nothing in those decisions, which
precede by decades the enactment of the aggravated felony provisions of the
INA, discusses whether an alien convicted of an aggravated felony is
ineligible 	to citizenship and therefore 	also 	inadmissible under 	section
212(a)(8)(A) of the INA, 8 U.S.C. § 1182(a)(8)(A).
We 	recognize 	that 	before 	Matter 	of 	Kanga, 	an 	Immigration 	and
Naturalization Service regional commissioner issued Matter of Martin-
Arencibia, 13 I&N Dec. at 166, holding that the alien’s conviction for
murder, although it rendered him unable to establish good moral character
under section 101(f)(8) of the INA, 8 U.S.C. § 1101(f)(8), and therefore also
ineligible to naturalize under section 316 of the INA, 8 U.S.C. § 1427, did
not render him “ineligible to citizenship” under section 101(a)(19) of the
INA, 8 U.S.C. § 1101(a)(19), or excludable under former section 212(a)(22)
of the INA, 8 U.S.C. § 1182(a)(22). The regional commissioner held that the
definition of “ineligible to citizenship” is unambiguous but also found
support for his position in the legislative history to the 1952 enactment which
stated that the term “ineligible to citizenship” is “confined in its reference to
such aliens as draft evaders, avoiders, or deserters.” 	Id. at 167. 	However,
the reasoning in Matter of Martin-Arencibia, 13 I&N Dec. at 167, like that
in Matter of Kanga, 22 I&N Dec. at 1212–15, was legally erroneous because
it did not apply the plain language canon of statutory construction. Thus, in
this decision, the Board expressly departs from the reasoning and holding of
both decisions.
D. Retroactivity
As we are explicitly overruling Board precedent in Matter of Kanga, a
retroactivity analysis applies. See Matter of Cordero-Garcia, 27 I&N Dec.
652, 656 (BIA 2019) (discussing when a Board decision constitutes a change

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in law). The test for retroactivity requires the Board to consider the following
factors:
(1) whether the particular case is one of first impression, (2) whether the new rule
represents an abrupt departure from well established practice or merely attempts to
fill a void in an unsettled area of law, (3) the extent to which the party against whom
the new rule is applied relied on the former rule, (4) the degree of the burden which
a retroactive order imposes on a party, and (5) the statutory interest in applying a
new rule despite the reliance of a party on the old standard.
Id. at 658 (citation omitted). Although the issue presented here is not one of
first impression, this decision is explicitly overruling long-standing Board
precedent to the contrary, and therefore the first three factors in the test
articulated above support applying the holding here prospectively.
Further, as the Board’s holding here is a significant change with respect
to the long-standing rule as to whether aggravated felons may be admissible
(assuming eligibility for any relevant waivers) and therefore eligible for
adjustment of status, we recognize that this change would impose a burden
on not only the respondent and her expectations during the course of these
removal proceedings regarding her eligibility for relief from removal, but
may also lead to reopening proceedings in which aggravated felons were
granted waivers of inadmissibility and adjustment of status. As to the fifth
factor in the test above, we hold that the Board’s interest in applying the new
rule articulated is not strong enough to outweigh the past expectations on the
prior rule, particularly as it was articulated in Board precedent, which
warrants applying this decision only prospectively. Thus, this decision will
apply 	only 	to 	aliens 	seeking 	admission 	as 	immigrants 	who 	incur 	an
aggravated felony conviction based upon a plea of guilty or nolo contendere
made, or a jury verdict entered, after the date of this decision.
E. Applications for Relief and Protection from Removal
As we are overruling 	Matter of Kanga 	but applying our decision
prospectively only, we must address the Immigration Judge’s denial of the
respondent’s applications for a section 212(h) waiver, adjustment of status,
and CAT deferral of removal. 	We affirm the Immigration Judge’s holding
that the respondent did not establish that the denial of admission would cause
extreme hardship to a qualifying relative, namely her United States citizen
husband or son, as required for a section 212(h) waiver of inadmissibility in
conjunction with her application to adjust status under section 245(a) of the

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INA, 8 U.S.C. § 1255(a) (2024).4 	The respondent does not challenge this
holding with respect to her husband; therefore, that aspect of her claim is
waived. See Matter of Voss, 28 I&N Dec. 107, 108 n.2 (BIA 2020) (an issue
addressed in an Immigration Judge's decision is waived when a party does
not challenge it on appeal).
The respondent contends that the Immigration Judge erred in holding that
she did not establish that the denial of admission will cause extreme hardship
to her United States citizen son. She argues that the Immigration Judge did
not sufficiently consider the impacts to the respondent’s son if she is
separated from him or if the son moves with her to Nicaragua. 	On the
contrary, the Immigration Judge’s decision makes fulsome findings of fact
as to the impact to the respondent’s son under both scenarios. No clear error
exists in the Immigration Judge’s findings, including the findings that the
respondent and her husband gave her sister custody of their son, and that her
sister is caring for their son, including ensuring that he is seen by a doctor for
his well-child visits. Thus, we affirm the Immigration Judge’s holding that
the respondent did not demonstrate that denial of her admission would cause
her son extreme hardship.
We also affirm the Immigration Judge’s alternative holding denying the
respondent’s application for a section 212(h) waiver in the exercise of
discretion. 	See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA
1996) (listing negative and positive factors relevant to evaluating a section
212(h) waiver in the exercise of discretion). The Immigration Judge properly
considered the relevant factors, including “the existence of a criminal record
and, if so, its nature, recency and seriousness, and the presence of other
evidence indicative of an alien’s bad character or undesirability as a
permanent resident of this country,” as well as “favorable considerations”
such as “family ties in the United States, residence of long duration in this
country (particularly where the alien began his [or her] residency at a young
age),” and “evidence attesting to the alien’s good character (e.g., affidavits
from family, friends, and responsible community representatives).” Id.; see
also Matter of Y-S-P-T-, 29 I&N Dec. 776, 778–79 (BIA 2026) (denying a
section 212(h) waiver in the exercise of discretion).
No clear error exists in the Immigration Judge’s findings that the
respondent is a long-time resident of the United States, has suffered serious
hardships including the murder of her mother when she was 4 years old,
4 	The respondent does not dispute that her convictions for use of unauthorized access
device and aggravated identity theft are for crimes involving moral turpitude that render
her inadmissible. See INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2024).

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graduated from high school, and has a United States citizen son. 	We also
discern no clear error in the Immigration Judge’s findings that the respondent
has a lengthy, extensive, and serious criminal record, including arrests for
shoplifting and credit card fraud and the federal convictions for use of
unauthorized access device and aggravated identity theft.
The Immigration Judge correctly found the respondent had engaged in
the criminal conduct when she was an adult, and, rather than demonstrating
evidence of having learned from her earlier mistakes, her criminal behavior
escalated in its seriousness over time. The respondent also admitted that she
knew she was engaging in criminal behavior. Under our de novo review, we
conclude that the negative factors outweigh the positive factors and support
the denial of a section 212(h) waiver in the exercise of discretion. 	In the
absence of a section 212(h) waiver, the respondent remains inadmissible, and
the 	Immigration 	Judge 	therefore 	correctly 	denied 	her 	application 	for
adjustment of status under section 245(a) of the INA, 8 U.S.C. § 1255(a).
We also affirm the Immigration Judge’s denial of the respondent’s
application for CAT deferral of removal as the respondent has not met her
burden of proving that she is more likely than not to be tortured upon return
to Nicaragua. 8 C.F.R. §§ 1208.17 (2026), 1208.18(a)(1) (2020). On appeal,
the respondent argues that her “anti-government beliefs” will place her in
danger upon return to Nicaragua. 	The Immigration Judge correctly found
insufficient 	evidence 	that 	anyone 	in 	Nicaragua 	is 	interested 	in 	the
respondent’s political opinions or would likely torture her upon return. 	See
Matter of Z-Z-O-, 26 I&N Dec. 586, 590 (BIA 2015) (holding that “an
Immigration Judge’s predictive findings of what may or may not occur in the
future are findings of fact, which are subject to a clearly erroneous standard
of review”). 	The respondent’s citation to the general country conditions
evidence in the record is not sufficiently particularized to her to meet her
burden of proof. 	8 C.F.R. § 1208.18(a)(1) (torture must be “intentionally
inflicted” on a person to qualify for CAT protection).
Lastly, the respondent contends that her due process rights were violated
because the Immigration Judge questioned the credibility of her claims of
abuse by her family members given that she filed a motion to reopen these
proceedings, which was supported by affidavits from the same family
members attesting that the respondent was part of a loving, kind, and
supportive family. 	According to the respondent, the Immigration Judge’s
discussion of the evidence reflects an “inherent personal bias and complete
lack of knowledge or understanding of childhood and sexual abuse” and
establishes that she was not given a full and fair hearing in accordance with
her due process rights.

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The respondent’s argument is unavailing. 	The Immigration Judge
properly reviewed the record in full and raised questions and concerns with
evidence and testimony that contradicted other evidence in the record. The
fact that the Immigration Judge raised questions and concerns with the
credibility of some of the testimony and evidence, as well as the respondent’s
legal tactics in moving to reopen these proceedings, does not establish
improper bias on the part of the Immigration Judge. 	See Liteky v. United
States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.”); see also Matter of
Exame, 18 I&N Dec. 303, 306 (BIA 1982) (stating that “an applicant is not
denied a fair hearing merely because the immigration judge has a point of
view about a question of law or policy”). 	Further, the Immigration Judge
provided the respondent an opportunity to present her testimony and that of
her witnesses in full, and the Immigration Judge reviewed all of the record
evidence presented in adjudicating the respondent’s claims for relief and
protection. We conclude that the respondent received a full and fair hearing.
III. Conclusion
The respondent’s convictions for use of unauthorized access device in
violation of 18 U.S.C. § 1029(a)(2) and aggravated identity theft in violation
of 18 U.S.C. 1028A(a)(1) are aggravated felonies as defined in section
101(a)(43)(M) of the INA, 8 U.S.C. § 1101(a)(43)(M), and thus render her
removable as charged under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii). We affirm the Immigration Judge’s determinations that
the respondent is inadmissible and did not establish her eligibility for a
section 212(h) waiver, adjustment of status, or CAT protection. 	Matter of
Kanga, 22 I&N Dec. at 1206, is overturned prospectively, and the Board
declines to follow Matter of Martin-Arencibia, 13 I&N Dec. at 166.
Accordingly, the following order will be entered.
ORDER: The appeal is dismissed.
NOTICE: 	If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the respondent’s departure pursuant to
the order of removal, the respondent shall be subject to a civil monetary
penalty of up to $998 for each day the respondent is in violation. See section
274D of the INA, 8 U.S.C. § 1324d (2024); 8 C.F.R. § 280.53(b)(14) (2026).

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Further, any respondent that has been denied admission to, removed from, or
has departed the United States while an order of exclusion, deportation, or
removal is outstanding and thereafter enters, attempts to enter, or is at any
time found in the United States shall be fined or imprisoned not more than
2 years, or both. See INA § 276(a), 8 U.S.C. § 1326(a) (2024).