Sammir Poveda, a Nicaraguan citizen and lawful permanent resident, became subject to removal proceedings after a Florida conviction for battery on a child by bodily fluids. He sought an INA § 212(h) hardship waiver, but the Board of Immigration Appeals held that a person remaining in the United States must apply for adjustment of status along with the waiver. The Eleventh Circuit denied review. It held that the Board reasonably interpreted § 212(h) to distinguish aliens seeking admission or adjustment of status from aliens being removed from the United States, and that the post-1996 immigration statutes made the distinction materially different from the departure-based rule previously rejected in Yeung. The court also rejected Poveda’s equal-protection challenge under the Fifth Amendment and held that a lawful permanent resident who had not left the country was not an applicant for admission under § 1101(a)(13)(C). Judge Martin dissented. He would have found that the Board continued to rely on the departure distinction condemned in Yeung and would have remanded for further proceedings consistent with that precedent.