PER CURIAM:

Shade Lawal petitions for review of the Board of Immigration Appeal's ("BIA") dismissal of his appeal of the denial of his application for a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(h).

Shade Lawal is a native and citizen of Nigeria. He became a lawful permanent resident of the United States in 1981. In 2004, Lawal was convicted in Georgia state court of theft by taking and sentenced to twenty-four months of imprisonment. He was convicted again in 2008 in Georgia state court of employment insurance fraud and sentenced to twelve months of imprisonment. In 2009, after leaving the United States for a two-week trip to Nigeria, Lawal lawfully reentered. In 2010, the Department of Homeland Security initiated removal proceedings against Lawal, charging him as removable for having been convicted of two crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii), and for having been convicted of an aggravated felony involving a theft offense, id. § 1227(a)(2)(A)(i).1 At his removal proceeding, Lawal submitted an application for a § 212(h) waiver of inadmissibility. The Immigration Judge ("IJ") denied the application, finding that Lawal was not eligible for a waiver because he had been convicted of an aggravated felony after he had been previously admitted to the United States as a lawful permanent resident.

Lawal appealed the IJ's denial of his waiver application to the BIA. Citing our decision in Lanier v. U.S. Att'y Gen., 631 F.3d 1363 (11th Cir.2011), the BIA agreed with Lawal that his convictions did not render him ineligible for a § 212(h) waiver. Nevertheless, the BIA dismissed the appeal after finding that Lawal was ineligible for the waiver because he failed to concurrently file an application for adjustment of status with his waiver application. See 8 C.F.R. § 1245.1(f) ("[A]n application [for adjustment of status] under this part shall be the sole method of requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the Act, as they relate to the inadmissibility of an alien in the United States."). Lawal now petitions this court to review the BIA's decision and claims that the BIA ignored its own binding precedent, Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980), in dismissing his appeal.

Lawal argues that the BIA's decision in Sanchez permits an alien in his circum-stances — an alien who has departed the United States and lawfully returned after becoming subject to removal — to apply for a § 212(h) waiver without filing an application for adjustment of status. In Sanchez, a Mexican native entered the United States as a lawful permanent resident and lived here from 1965 to 1970. In 1970, he moved to Mexico and commuted daily into the United States for work until 1976, when he began residing with his family in the United States. After a visit to Mexico in 1976, he was arrested at the U.S. border before he could seek entry2 into the United States. He was taken into custody, charged with mail fraud, and released the next day into the United States pending his trial — upon his release from custody, the immigration laws treated Sanchez as having entered the United States. Id. at 220. Sanchez eventually pleaded guilty to the mail fraud charge and in 1977 was given a suspended sentence of twelve months and one day. Under the immigration laws, Sanchez's conviction rendered him excludable should he depart and try to reenter the country. Id. at 222-23. Nevertheless, Sanchez made many brief trips to Mexico after his conviction and was never denied entry upon his return. Id. at 222. Instead of excluding Sanchez at the border after these trips, in 1978 the United States initiated deportation proceedings against him for having been "convicted of a crime of moral turpitude committed within five years after entry." Id. at 220.

During the course of these proceedings, Sanchez sought a § 212(h) waiver. Because the facts rendering Sanchez deportable were the same as what rendered him excludable, the BIA found that Sanchez could be eligible for a § 212(h) waiver.3 Id. at 222 (concluding that relief under § 212(h) "may be granted nunc pro tunc in deportation proceedings in order to cure a ground of [excludability] at the time of entry"). By permitting access to the § 212(h) waiver nunc pro tunc, the BIA effectively treated Sanchez's waiver application as if he were seeking admission at the border, even though Sanchez was in a deportation proceeding. See id. at 223 ("[A] waiver of the ground of [excludability] may be granted in a deportation proceeding when, at the time of the alien's last entry, he was [excludable] because of the same facts which form the basis of his deportability.").4

The BIA's decision in Sanchez established that aliens who become excludable after an original lawful entry may later be deported from the United States if they depart and return, but they may also be eligible for waivers of excludability after they have reentered. Following Sanchez, the BIA's policies effectively created two classes of deportable aliens who were eligible for a § 212(h) waiver: (1) deportees who had not left the country since becoming deportable that filed an adjustment of status application while seeking the § 212(h) waiver, see 8 C.F.R. § 1245.1(f); and, after Sanchez, (2) deportees who had departed and returned to the United States whose grounds for deportation were based on the same facts that rendered them excludable at their last entry.5 Deportees belonging to the second class were not required to submit an application for adjustment of status with their application for the § 212(h) waiver.

Decisions of this court and changes in the immigration laws, however, have called Sanchez's viability into question. In Yeung v. INS, 76 F.3d 337, 341 (11th Cir.1995), a lawful permanent resident — who was ineligible to apply for an adjustment of status and who had remained in the United States after being convicted of a deportable offense — challenged the BIA's policy of permitting only those aliens who departed and returned to the United States to seek a § 212(h) waiver without also filing for an adjustment of status, arguing that this policy was a violation of the equal protection component of the Fifth Amendment's due process clause. We agreed and held that no rational basis existed for the BIA's position that an alien is ineligible for the § 212(h) waiver "simply by virtue of his failure to depart and reenter." Id. at 340. We remanded the case to the BIA to reconsider its prior interpretation of § 212(h) in light of that holding.6

Recently, in Poveda v. U.S. Att'y Gen., 692 F.3d 1168 (11th Cir.2012), we indicated that, following our holding in Yeung and the substantial revision to the immigration laws by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the BIA had altered its position on § 212(h) eligibility with regards to whether a deportable alien had departed and reentered the United States. In Poveda, a lawful permanent resident — who was deemed ineligible for a § 212(h) waiver because he failed to also file an application for adjustment of status — raised the same equal protection claim brought in Yeung. We rejected this argument, noting that the BIA had "backed away from" the international travel/lack of international travel distinction it employed in Yeung. Poveda, 692 F.3d at 1174. Now, the BIA differentiates "between those criminal aliens who seek to be admitted to the United States, and those criminal aliens who are being deported from the United States." Id. at 1177 (quoting Klementanovsky v. Gonzales, 501 F.3d 788, 792 (7th Cir.2007)). Eligibility for a § 212(h) waiver, therefore, is now available in two situations:

Id. at 1173 (emphasis added).

Lawal's case reveals that ambiguity exists between the BIA's current interpretation of § 212(h) as articulated in Poveda, prior BIA precedent under Sanchez, and the immigration statutes. Currently, a lawful permanent resident who returns from abroad typically is not regarded as an applicant for admission under the immigration laws. See 8 U.S.C. § 1101(a)(13)(C). But a lawful permanent resident who is convicted of certain crimes before departing the United States is considered an applicant for admission upon his return. Id. § 1101(a)(13)(C)(v). Because Lawal left the country after committing his fraud and theft offenses, the immigration laws considered him as seeking admission at the time he returned to the United States. See id. §§ 1182(a)(2); 1101(a)(13)(C)(v). The manner in which the immigration statutes regard an alien in Lawal's circumstances — as an alien seeking admission — raises some questions as to how he should be treated in light of BIA precedent.

BIA precedent has established that in certain circumstances an alien in the United States subject to deportation is nevertheless treated as if he were outside the border seeking admission into the United States. Under Sanchez, the BIA has treated an alien in a deportation proceeding that seeks a § 212(h) waiver as if he were seeking admission into the United States, provided that the alien was inadmissible at the time of the alien's last entry.7 See Sanchez, 17 I. & N. Dec. at 223.

Similarly, 8 C.F.R. § 1245.1(f) treats an alien in the United States who has submitted an application for adjustment of status as if the alien were outside the country seeking admission into the United States. See Cabral v. Holder, 632 F.3d 886, 891 (5th Cir.2011) ("[A]liens who are already in the United States must apply for an adjustment of status under 8 U.S.C. § 1255; upon application, the applicant is assimilated to the position of an alien outside the United States seeking entry as an immigrant.") (internal quotation marks omitted); Matter of Gonzalez-Camarillo, 21 I. & N. Dec. 937, 947-50 (BIA 1997) (Rosenberg, dissenting) (cataloguing prior BIA precedent acknowledging that an individual seeking adjustment of status in a deportation proceeding is assimilated to the position of an alien outside our borders seeking admission into the United States).

The BIA's current interpretation of § 212(h) permits the Attorney General to grant a waiver to "an alien at the border who seeks admission, including an alien who has departed the United States after committing a deportable offense, so long as the alien remains outside our borders while applying for relief." Poveda, 692 F.3d at 1173. But, as we have seen, BIA precedent already treats certain aliens in the United States as if they were outside our borders seeking admission into the United States. See e.g., Sanchez, 17 I. & N. Dec. at 223. It is thus unclear whether the BIA's current interpretation of § 212(h) — that an alien seeking § 212(h) relief who has not filed an adjustment of status application must remain "outside our borders while applying for relief" — overrules Sanchez, or if the BIA's current interpretation essentially functions as a continuation of its precedent under Sanchez, in which case the BIA would treat an alien satisfying the conditions of Sanchez as if the alien were "outside our borders while applying for relief."

This is "an area of law where uniformity is particularly important." Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir.1993) (en banc). "When the BIA has not spoken on a matter that statutes place primarily in agency hands, our ordinary rule is to remand to give the BIA the opportunity to address the matter in the first instance in light of its own expertise." Negusie v. Holder, 555 U.S. 511, 517, 129 S.Ct. 1159, 1164, 173 L.Ed.2d 20 (2009) (internal quotation marks omitted). We therefore remand to the BIA for the purpose of allowing it to consider Lawal's case in light of our intervening decision in Poveda and — if the BIA deems that Sanchez is not overruled — to apply Sanchez to Lawal's case if the BIA finds that it is applicable.

The BIA also found that Lawal was ineligible for a § 212(h) waiver under the BIA's comparable grounds rule. In Matter of Blake, 23 I. & N. Dec. 722, 729 (BIA 2005), the BIA held that an alien who was deportable based on a charge of deportability to which there was no comparable ground of inadmissibility was ineligible for a waiver under former § 212(c) of the Immigration and Nationality Act. The BIA applied this comparable grounds rule to Lawal in the context of his application for a § 212(h) waiver and found that no comparable ground of inadmissibility existed. The Supreme Court, however, has recently struck down the BIA's comparable grounds rule as arbitrary and capricious. Judulang v. Holder, ___ U.S. ___, 132 S.Ct. 476, 477, 181 L.Ed.2d 449 (2011). Accordingly, on remand, the BIA is also to reconsider Lawal's case in light of the Supreme Court's holding in Judulang.

VACATED and REMANDED.