The Board of Immigration Appeals issued Matter of A-V-O-, 30 I&N Dec. 44 (BIA 2026), Interim Decision #4245, on September 17, 2026. The decision overrules Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000), a precedent that stood for 26 years, and holds that a noncitizen convicted of an aggravated felony is inadmissible to the United States under INA § 212(a)(8)(A) as a person who is permanently ineligible to citizenship.
If you have a criminal case coming up in federal or state court, if you are considering a plea agreement, or if you have family-based immigration relief pending, this decision may affect you. It also matters for anyone who has been thinking about applying for adjustment of status to a green card while carrying a serious criminal record. The BIA limited the new rule to convictions entered by plea or jury verdict after September 17, 2026, so older convictions are not swept in by this specific holding. What you do next, however, depends heavily on when your case is being resolved.
The respondent in Matter of A-V-O- is a citizen of Nicaragua who was admitted to the United States on a visitor visa in 1996 and overstayed her authorized period of stay. In 2004, the Department of Homeland Security issued her a notice to appear, and an immigration judge later ordered her removed in absentia. In 2019, she successfully moved to reopen her removal proceedings and continued fighting her case.
In January 2020, she was convicted in the Southern District of Florida of two federal offenses: use of unauthorized access device in violation of 18 U.S.C. § 1029(a)(2), for which she received an 8-month sentence, and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), for which she received a 24-month sentence. The district court entered a restitution order of $345,100.14, and it made her jointly and severally liable with her co-defendants for that amount, meaning that any one of them could be held responsible for paying the full amount if the others did not pay.
Before the immigration judge, she conceded she was removable for overstaying and DHS added a charge that her criminal convictions made her removable as a noncitizen convicted of an aggravated felony. She sought a waiver of inadmissibility under INA § 212(h), adjustment of status to lawful permanent resident, and protection from removal to Nicaragua under the Convention Against Torture. The immigration judge denied all three forms of relief. She appealed to the BIA. The BIA affirmed the denial and used the case to overturn Matter of Kanga.
The BIA reached two significant conclusions.
First, on the loss amount question, the BIA held that the entire $345,100.14 restitution figure applied to the respondent for immigration purposes, not just her individual share of the fraudulent transactions. She had argued that only $3,450.42, the amount of a specific cellular phone purchase attributable to her, should count toward the aggravated felony threshold of $10,000. The BIA rejected that argument, relying on the Supreme Court’s decision in Nijhawan v. Holder, 557 U.S. 29 (2009), and holding that a court restitution order tethered to a defendant’s convicted conduct establishes the loss amount for aggravated felony purposes, even when the defendant is jointly and severally liable with co-defendants.
Second, and more consequentially for immigration practice going forward, the BIA held that any noncitizen convicted of an aggravated felony is inadmissible under INA § 212(a)(8)(A) as a person who is permanently ineligible to citizenship. The BIA reached this conclusion by walking through the plain language of three interconnected sections of the INA: § 316(a) says you cannot naturalize without good moral character; § 101(f)(8) says an aggravated felony conviction forever precludes a finding of good moral character; and § 101(a)(19) defines “ineligible to citizenship” to include people permanently debarred from becoming a citizen under any section of the INA. Because an aggravated felony makes you permanently ineligible to naturalize, the BIA reasoned, it also makes you inadmissible.
For 26 years, the governing rule on this question came from Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). In Matter of Kanga, the BIA had held that the phrase “ineligible to citizenship” in INA § 212(a)(8) applied only to people who had evaded military service, based on the historical origins of the provision, which was first enacted during the World War II era to address draft evasion. The 2000 Matter of Kanga decision looked at the legislative history of the provision, examined how the term had been used across the INA, and concluded that Congress did not intend the citizenship-ineligibility inadmissibility ground to sweep in noncitizens with aggravated felony convictions.
Under Matter of Kanga, a noncitizen with an aggravated felony conviction was still removable as an aggravated felon under INA § 237(a)(2)(A)(iii), still ineligible for asylum and withholding of removal, and still permanently barred from naturalizing. What Matter of Kanga preserved, however, was that the aggravated felony conviction did not, on its own, trigger inadmissibility under § 212(a)(8)(A). That mattered because inadmissibility carries a distinct set of consequences that affect adjustment of status, waivers, and reentry after travel.
The Matter of Kanga rule shaped practice in immigration court and in criminal defense for a generation. Immigration attorneys advising clients on the collateral consequences of criminal pleas relied on it. Criminal defense attorneys structuring plea deals for noncitizen clients relied on it. Adjudicators at USCIS relied on it. The rule was well settled, and no one had recently expected the BIA to revisit the interpretation the Board had built in 2000.
The BIA in Matter of A-V-O- held that Matter of Kanga was decided on flawed reasoning because it did not apply what the BIA calls a plain-language canon of statutory construction. The plain-language canon says that when a statute’s words are unambiguous, the court applies them as written and does not look to legislative history to reach a different result.
Applied to INA § 212(a)(8)(A), the BIA said the plain language is clear. The statute reads, “Any immigrant who is permanently ineligible to citizenship is inadmissible.” Nothing in the text of the provision, the BIA held, limits its scope to noncitizens who cannot naturalize because they evaded military service. Nothing in the statute mentions military service in the ineligibility subsection at all. A separate subsection of the same statute, INA § 212(a)(8)(B), specifically addresses draft evaders, which the BIA reasoned would be redundant if subsection (A) already covered them.
The BIA also examined the definition of “ineligible to citizenship” in INA § 101(a)(19), which references two military service statutes and then includes a catchall phrase covering permanent ineligibility “under any section of this Act, or any other Act.” That catchall phrase, the BIA reasoned, is forward-looking and does not limit itself to military service contexts. Because Congress in 1990 amended the INA to make aggravated felony convictions a permanent bar to good moral character (and therefore a permanent bar to naturalization), any noncitizen with such a conviction is now permanently debarred from citizenship “under any section of this Act” and therefore falls squarely within the § 101(a)(19) definition.
The BIA also declined to follow Matter of Martin-Arencibia, 13 I&N Dec. 166 (R.C. 1969), an older Immigration and Naturalization Service regional commissioner decision that had reached a similar result to Matter of Kanga in a case involving a murder conviction.
When someone is described as inadmissible under U.S. immigration law, it means they cannot lawfully enter the United States and, if they are already here, they cannot obtain certain forms of relief that require admissibility. The most significant of these is adjustment of status, meaning the process by which a noncitizen already in the United States becomes a lawful permanent resident (a green card holder) without leaving the country.
Under Matter of A-V-O-, if you have an aggravated felony conviction entered by plea or verdict after September 17, 2026, you are now inadmissible under INA § 212(a)(8)(A). That means:
A waiver under INA § 212(h) may be available in some cases and not in others. The section 212(h) waiver has its own eligibility requirements, including a showing of extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative and a favorable exercise of discretion by the adjudicator. In Matter of A-V-O-, the respondent was denied a § 212(h) waiver, and the BIA affirmed that denial.
The term aggravated felony under federal immigration law does not track how state or federal criminal law uses the word “felony.” It is a category defined by INA § 101(a)(43) that includes offenses many people would not intuitively associate with the label. The category encompasses murder and rape, but it also includes:
Even relatively common state convictions can fall within the aggravated felony definition if the underlying facts and the sentence structure meet the federal criteria. This is why a criminal defense attorney handling a case for a noncitizen client should always consult with an immigration attorney before advising on a plea.
The BIA in Matter of A-V-O- conducted a retroactivity analysis and expressly limited the new rule to convictions entered by plea or verdict after September 17, 2026. This is a critical piece of the decision and needs to be understood clearly.
If you have an aggravated felony conviction from before September 17, 2026, this new inadmissibility ground under INA § 212(a)(8)(A) does not apply to you based on the reasoning of Matter of A-V-O-. That does not mean your old conviction has no immigration consequences. You may still be removable as an aggravated felon under INA § 237(a)(2)(A)(iii), you may still be ineligible for asylum or withholding of removal, and you may still face other collateral consequences. What Matter of A-V-O- does not do is add the § 212(a)(8)(A) inadmissibility ground on top of what was already applicable to you.
The BIA reasoned that reliance interests weighed against retroactive application. For 26 years, noncitizens with aggravated felony convictions had structured their cases, plea negotiations, and immigration filings in reliance on Matter of Kanga. The BIA acknowledged that a retroactive application would upset those settled expectations and could reopen large numbers of cases where waivers had already been granted. The BIA balanced those reliance interests against its interest in applying the new rule and concluded that prospective application was appropriate.
The prospective-application analysis relied on the framework in Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019), which lists five factors relevant to when a Board decision changing existing law should apply retroactively or prospectively. The BIA found that the first three factors, along with the reliance interests of parties who had structured their affairs under Matter of Kanga, supported applying the new rule only going forward.
The people most immediately affected by Matter of A-V-O- fall into several categories.
If you are a noncitizen with pending criminal charges in federal or state court, and the charges could result in an aggravated felony conviction, the timing of your case now carries a distinct immigration consequence. A plea entered before today does not trigger the new inadmissibility ground under Matter of A-V-O-. A plea entered tomorrow or later does. This is a fact criminal defense counsel and immigration counsel should be discussing with any affected client immediately.
If you are a lawful permanent resident who is considering traveling abroad and returning to the United States, and you have any prior criminal record you have been uncertain about, this is a moment to consult with an immigration attorney before booking travel. Any prior conviction that qualifies as an aggravated felony creates deportability risk on return; a conviction entered after today may now also carry a distinct inadmissibility risk that did not previously exist.
If you have a pending application for adjustment of status and you have any criminal record, your attorney should review the record with the new framework in mind. If your conviction predates today, Matter of A-V-O- does not directly change your case. If your conviction post-dates today, the analysis is materially different.
If you have a pending petition for a family member who has criminal exposure, the same considerations apply. Family-based petitions typically require the beneficiary to be admissible when the visa becomes available. Timing of any anticipated conviction matters.
Matter of A-V-O- is a significant decision, but its scope has limits worth stating clearly.
The decision does not change the definition of an aggravated felony. INA § 101(a)(43) still governs what counts, and the analysis of whether a particular conviction qualifies still turns on the same statutory and case-law framework.
The decision does not apply retroactively to aggravated felony convictions from before September 17, 2026. Your old conviction is not newly weaponized by this decision.
The decision does not eliminate INA § 212(h) as a potential waiver in appropriate cases. It does not foreclose Convention Against Torture protection where the applicable standards are met. It does not affect asylum or withholding eligibility differently from what the aggravated felony bar already imposed.
The decision does not bind federal circuit courts. Circuit courts reviewing petitions for review apply their own interpretive frameworks, and the BIA’s reading of the statute could be challenged on petition for review. If you have a case that the BIA denies based on Matter of A-V-O-, an appropriate federal appellate challenge remains available.
If you are a noncitizen with a pending criminal case, contact both a criminal defense attorney and an immigration attorney before you agree to any plea. The timing of your plea now carries an additional immigration consequence that did not exist as of yesterday. Make sure the two attorneys are talking to each other, because criminal defense strategy that appeared sound under Matter of Kanga may need to be reconsidered.
If you have a pending application for adjustment of status, or if you are considering filing one, and you have any criminal record, your attorney should review the specific charges and dispositions in your history against the new framework. If your prior convictions all predate today, Matter of A-V-O- does not change your adjustment analysis. If you have any anticipated conviction on the horizon, it does.
If you are a lawful permanent resident with a prior aggravated felony conviction who has been considering international travel, do not travel without first consulting with an immigration attorney. Reentry after travel is one of the highest-risk moments for a noncitizen with any criminal record, and the risk has become somewhat more complicated for those whose convictions may be entered after today.
If you have received a notice to appear in immigration court and you have criminal exposure, work closely with your immigration attorney to preserve the record for both trial-level defense and any potential appellate challenge. Federal circuit courts will be the natural forum for challenges to Matter of A-V-O-, and the record built at the immigration court is what those courts will review.
I have an aggravated felony conviction from 2015. Does Matter of A-V-O- apply to me?
No. The BIA expressly limited Matter of A-V-O- to convictions entered by plea or jury verdict after September 17, 2026. Your 2015 conviction was entered under the framework of Matter of Kanga, and the BIA declined to apply the new rule retroactively out of respect for reliance interests. You may still face other immigration consequences from your conviction, but the new § 212(a)(8)(A) inadmissibility ground is not one of them.
I have a criminal case pending right now. When does the timing matter?
The critical date is the date your guilty plea is entered or the date a jury verdict is rendered. Convictions entered after September 17, 2026, fall within the new rule. Convictions entered on or before September 17, 2026, do not. If your case is likely to result in an aggravated felony conviction, the timing of your plea has real immigration consequences, and you should discuss options with both criminal defense counsel and immigration counsel.
Can I still get a waiver if I am now inadmissible under Matter of A-V-O-?
A waiver under INA § 212(h) may be available depending on your specific circumstances. That waiver requires you to establish extreme hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent, son, or daughter, and it requires a favorable exercise of discretion by the adjudicator. In Matter of A-V-O-, the respondent’s request for a § 212(h) waiver was denied. Whether a waiver is available in your case depends on your family circumstances, the seriousness of your convictions, your rehabilitation record, and other factors.
Does this affect my ability to naturalize?
Matter of A-V-O- does not change what has been true for decades: an aggravated felony conviction permanently precludes a finding of good moral character under INA § 101(f)(8), and good moral character is required for naturalization under INA § 316(a). What Matter of A-V-O- does is take that existing bar to naturalization and extend it into a new inadmissibility ground under INA § 212(a)(8)(A).
Can I appeal a decision that applies Matter of A-V-O- against me?
Yes. Immigration court decisions can be appealed to the Board of Immigration Appeals, and BIA decisions can then be reviewed by a federal court of appeals through a petition for review. Federal circuit courts apply their own interpretive frameworks and may reach conclusions different from the BIA. The record built at your immigration court hearing is what those higher courts will examine.
Where can I find Matter of A-V-O-?
Matter of A-V-O-, 30 I&N Dec. 44 (BIA 2026), is a precedential decision of the Board of Immigration Appeals issued on September 17, 2026, as Interim Decision #4245. It is available here and through the Department of Justice Executive Office for Immigration Review website.
Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney on our team is fluent in English and Spanish. We publish same-day analysis when federal decisions shift the ground under our clients, because we know our clients need to make decisions with the current state of the law in view.
Our litigation team handles removal defense in immigration court, appeals to the Board of Immigration Appeals, petitions for review before federal courts of appeals including the Ninth and Tenth Circuits, and federal habeas corpus petitions. Matter of A-V-O- is exactly the kind of decision where timing and record development in a criminal case determine whether a noncitizen faces one immigration consequence or several. If you have a pending criminal case, a pending immigration matter with criminal exposure, or an anticipated plea decision on the horizon, contact us. We will tell you what we would do.