Status as of September 18, 2026. The Board of Immigration Appeals decided Matter of A-V-O-, 30 I&N Dec. 44 (BIA 2026), Interim Decision #4245, on September 17, 2026. It holds that a noncitizen convicted of an aggravated felony is inadmissible under INA 212(a)(8)(A) as a person ineligible to citizenship, and overrules Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). The Board applied the holding prospectively only: it reaches those seeking admission as immigrants whose guilty or nolo contendere plea was made, or whose jury verdict was entered, after September 17, 2026.
For 26 years, Matter of Kanga held that an aggravated felony conviction did not, by itself, make a person inadmissible under INA 212(a)(8)(A), even though such convictions could carry separate removal consequences and, for convictions on or after November 29, 1990, permanently bar a finding of good moral character for naturalization. The Board has now closed that gap by reading several provisions of the Immigration and Nationality Act together. The effect reaches both immigrant admission and adjustment of status: ordinary adjustment under INA 245(a) requires the applicant to be admissible as an immigrant, so the new ground can independently block adjustment as well as an immigrant visa abroad. Because the Board made the rule prospective, the date a plea is entered now carries an immigration consequence of its own.
Contents
What the Board decided
The holding is one sentence: a noncitizen 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 a person who is ineligible to citizenship. That provision states simply that any immigrant who is permanently ineligible to citizenship is inadmissible.
The case was decided by a Board panel, with Deputy Chief Appellate Immigration Judge Gorman writing, joined by Appellate Immigration Judge Gallow and Temporary Appellate Immigration Judge Picos. As a published Board decision, it binds immigration judges and the components of the Department of Homeland Security nationwide, subject to review by the federal courts of appeals.
How the statutes connect
The Board connected four provisions enacted or amended at different points in the statute’s history.
INA 316(a) allows naturalization only for a person who has been and still is of good moral character during the relevant periods.
INA 101(f)(8), as amended in 1990, permanently bars a finding of good moral character for a person convicted of an aggravated felony on or after November 29, 1990. The aggravated felony category itself was first created in 1988 and expanded later.
INA 101(a)(19) defines "ineligible to citizenship" to cover a person permanently debarred from citizenship under the draft-evasion statutes of 1940 and 1948 or under any section of the INA, any other Act, or any law amending or supplementing them.
INA 212(a)(8)(A) makes any immigrant permanently ineligible to citizenship inadmissible.
The Board treated the closing catchall of 101(a)(19) as forward-looking: because an aggravated felony conviction makes a person permanently unable to satisfy 316(a), that person is debarred from citizenship under a section of the INA, falls within the definition, and is therefore inadmissible under 212(a)(8)(A). It also read the terms "permanently debarred from becoming a citizen" and "permanently ineligible to citizenship" in pari materia, as meaning the same thing.
Why the Board overruled its own precedent
In Matter of Kanga the Board had held that the phrase "ineligible to citizenship" in 212(a)(8) reaches only people barred from naturalization for evading military service, and that an aggravated felony conviction therefore does not trigger that ground. The Board now says Kanga was wrong because it never applied a plain-language analysis.
Three points carry the reversal. Nothing in the text of 212(a)(8)(A) limits it to draft evaders. Subparagraph (B) separately makes draft evaders inadmissible, which would have no purpose if subparagraph (A) already covered only them. And Kanga never addressed the catchall at the end of 101(a)(19), which extends the definition beyond the military-service statutes to any section of the INA or any other Act.
The Board also answered Kanga's structural objections. Kanga had reasoned that reading 212(a)(8)(A) broadly would make other provisions superfluous and undercut earlier decisions on waivers of inadmissibility, and that Congress would simply have listed aggravated felonies among the inadmissibility grounds in 1996 had it meant this. The Board replied that redundancy in statutory drafting is common and is not a reason to rewrite another part of the statute, citing Barton v. Barr, and that inferring the intent of an earlier Congress from the actions of a later one is unreliable. It added that once Congress made an aggravated felon unable to meet the citizenship requirements in 1990, the 1952 definition already did the rest.
Along with Kanga, the Board declined to follow Matter of Martin-Arencibia, 13 I&N Dec. 166 (R.C. 1969), a regional commissioner decision holding that a murder conviction that barred naturalization did not make the person ineligible to citizenship for exclusion purposes.
The rule applies only going forward
This is the part that decides who is affected. Because the Board was overruling its own precedent, it ran the five-factor retroactivity test from Matter of Cordero-Garcia: whether the case is one of first impression, whether the new rule is an abrupt departure from settled practice, how much the party relied on the former rule, how heavy a burden retroactive application would impose, and the strength of the interest in applying the new rule anyway.
The Board found that applying the rule retroactively would burden not only this respondent but could reopen cases in which people with aggravated felony convictions had already received waivers and been granted adjustment of status. It concluded that its interest in the new rule did not outweigh those settled expectations, and limited the holding to noncitizens seeking admission as immigrants who incur an aggravated felony conviction based on a guilty or nolo contendere plea made, or a jury verdict entered, after the date of the decision.
Two things follow from that wording. The new rule does not apply to an aggravated felony conviction based on a guilty or nolo contendere plea made, or a jury verdict entered, on or before September 17, 2026. And for the purposes of that cutoff, the Board keyed the rule to the date of the plea or the jury verdict rather than the later sentencing date; it did not redefine what counts as a conviction under INA 101(a)(48)(A).
Why the date of a plea now matters
A guilty or nolo contendere plea entered in court after September 17, 2026 can place the resulting aggravated felony conviction on the new side of the Board’s prospective line, even where the underlying conduct occurred well before. That date can now determine whether the 212(a)(8)(A) ground attaches at all, and for ordinary adjustment under 245(a), which requires admissibility as an immigrant, that may be decisive.
That places weight on coordination between criminal defense and immigration counsel that did not exist before this decision, and it does so immediately, since the rule took effect with the decision itself. Nothing in the decision changes what counts as an aggravated felony; the definition in INA 101(a)(43) is unchanged and remains far broader than the phrase suggests, reaching fraud offenses with losses over $10,000 and many offenses with sentences of a year or more.
What happened in the case itself
The respondent is a native and citizen of Nicaragua who was admitted on a visitor visa in 1996 and overstayed. She was ordered removed in absentia in 2004; proceedings were reopened on her motion in 2019. In January 2020 she was convicted in the Southern District of Florida of use of an unauthorized access device and aggravated identity theft, with sentences of 8 and 24 months.
The Board held those convictions were aggravated felonies as fraud or deceit offenses with a loss exceeding $10,000, using the circumstance-specific approach from Nijhawan v. Holder. She argued the loss tethered to her conviction was $3,450.42, the price of five phones named in the indictment as an example of her conduct; the judgment ordered restitution of $345,100.14, owed jointly and severally with co-defendants. The Board held that joint and several liability does not reduce her share of the loss.
Because the new rule is prospective, it did not decide her case. Her appeal failed on other grounds. She did not challenge the hardship finding as to her U.S. citizen husband, so that point was waived; as to her U.S. citizen son, the Board affirmed that extreme hardship was not established. The 212(h) waiver was also denied as a matter of discretion given an escalating criminal record, adjustment under 245(a) failed without the waiver, and the claim for deferral of removal under the Convention Against Torture was not supported by evidence particular to her.
What the decision leaves open
The decision does not identify a general waiver for 212(a)(8)(A), and the ordinary waiver at INA 212(h) does not reach that ground: 212(h) is written for specified grounds under 212(a)(2). That is precisely the difficulty Kanga had flagged, and the Board answered it by saying redundancy and interplay problems do not justify departing from the text, rather than by identifying a remedy.
This does not mean the ground can never be waived. Separate programs carry broader, category-specific waiver authority: INA 209(c) for qualifying refugee and asylee adjustment, and INA 245(h)(2)(B) for certain special immigrant juveniles, neither of which lists 212(a)(8) among its exclusions. Whether any such authority is available turns on the person’s immigration category and on the other grounds of inadmissibility in play.
Board precedent is also not the last word. Published decisions bind immigration judges and DHS nationwide under 8 CFR 1003.1(g), but they can be displaced by the Attorney General, by a later Board precedent or by legislation, and a court of appeals that rejects the reading controls within its own circuit. A final order of removal may generally be challenged by petition for review in the appropriate court of appeals, subject to the statutory deadline and to the jurisdictional limits the INA places on such review.
Frequently asked questions
Does this affect convictions from before September 2026?
Not under this holding. The Board limited it to those seeking admission as immigrants whose guilty or nolo contendere plea was made, or whose jury verdict was entered, after September 17, 2026. A conviction based on a plea or verdict on or before that date is outside it.
What exactly triggers the new rule?
A guilty plea, a plea of nolo contendere, or a jury verdict entered after the date of the decision, resulting in a conviction for an aggravated felony as defined in INA 101(a)(43).
What does inadmissibility under 212(a)(8)(A) mean in practice?
For a person the new rule reaches, it is a ground of inadmissibility as an immigrant. It can therefore bar admission on an immigrant visa and ordinary adjustment under 245(a), which requires admissibility as an immigrant, unless some applicable exception or waiver authority is available.
Is there a waiver?
There is no general 212(h) waiver for 212(a)(8)(A). Some separate provisions do carry broader, category-specific waiver authority, such as INA 209(c) and INA 245(h)(2)(B), so the answer depends on the applicant’s immigration category and the other grounds involved. This is a question for a licensed immigration attorney.
Does a conviction have to be for a violent crime?
No. The aggravated felony definition in INA 101(a)(43) includes many non-violent offenses, among them fraud or deceit offenses where the loss to victims exceeds $10,000, which is what the convictions in this case were.
Is this decision final?
It is binding Board precedent now. It remains subject to review by the federal courts of appeals and can be displaced by the Attorney General, a later Board precedent, or legislation.
Official sources
Source | What it covers |
|---|---|
Full text of the decision, including the retroactivity analysis | |
Official headnote and the rest of the current volume | |
The overruled precedent and its holding | |
How Board precedent works and how appeals proceed |
This material is informational and current as of September 18, 2026. It is not legal advice. Whether a particular conviction is an aggravated felony, and what this decision means for a particular case, are questions for a licensed immigration attorney; anyone facing criminal charges who is not a U.S. citizen should raise the immigration consequences with counsel before entering a plea.