Hing Sum v. Holder
| Decision Date | 23 April 2010 |
| Docket Number | No. 05-75776.,05-75776. |
| Parties | Yin HING SUM, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
602 F.3d 1092
Yin HING SUM, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.
No. 05-75776.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 12, 2010.
Filed April 23, 2010.
Marie Kayal and Martin Avila Robles, Immigration Practice Group, San Francisco, CA, for the petitioner.
Blair O'Connor, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, D.C., for the respondent.
Before J. CLIFFORD WALLACE, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.
Opinion by Judge MCKEOWN; Concurrence by Judge GRABER.
McKEOWN, Circuit Judge:
We consider a non-citizen's eligibility for a waiver of inadmissibility under § 212(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(h), where he has been convicted of an aggravated felony after his admission for permanent residence. Section 212(h), also referred to as the "§ 212(h) waiver" or "§ 212(h) relief," expressly bars from relief a non-citizen who has "previously been admitted to the United States as an alien lawfully admitted for permanent residence" and later is convicted of an aggravated felony. Id. Yin Hing Sum, a native of Hong Kong and citizen of China, was denied a § 212(h) waiver because he was convicted of a qualifying offense after his admission as a lawful permanent resident ("LPR").
Sum advances a curious position on appeal: namely, that because he was never legally admitted for permanent residence in the first place, but rather procured his admission by fraud or misrepresentation, the bar on § 212(h) relief does not apply. In other words, he argues that his initial fraud should save him now. We are not persuaded by this change-of-heart approach and deny the petition for review. Having enjoyed the benefits of LPR status, Sum cannot now shed his skin for the purposes of seeking beneficial relief.
The term "admitted" carries special significance within the regime of immigration statutes. Contrary to Sum's position, the previous "admission" to LPR status in § 212(h) does not refer to an admission in substantive compliance with the immigration laws, but rather an admission that is procedurally regular in nature. In this regard we interpret the term "admitted" as used in § 212(h), as distinct from the term "lawfully admitted" as that phrase is defined by the statute. Because Sum was "admitted" as an LPR in the sense of being inspected and authorized at the port of entry, but later convicted, he is barred from § 212(h) relief. It may seem, at first blush, an oxymoron to be "admitted" to the United States and yet "inadmissible" at the same time. But such is the text of the INA and the often opaque world of the immigration statutes.
Sum was admitted to the United States as an LPR in 1990. Before obtaining residency, in December 1987, Sum was arrested, and allegedly convicted, for criminal coercion in the second degree, in violation of New York Penal Law § 135.60. In June 2001, some ten years after his admission, Sum was convicted of conspiracy to produce,
Following Sum's federal conviction, the government initiated removal proceedings in December 2001, charging Sum with removability for having been convicted of an aggravated felony, for an offense relating to counterfeiting for which the term of imprisonment is at least one year. See 8 U.S.C. §§ 1227(a)(2)(A)(iii) (detailing grounds for removability), 1101(a)(43)(R) (defining aggravated felony). Sum conceded removability in immigration court but argued that he was eligible for adjustment of status, withholding of removal, and relief under the Convention Against Torture. In conjunction with his adjustment application, Sum sought a § 212(h) waiver, arguing that he was not subject to the bar on § 212(h) relief because he was actually inadmissible at the time he obtained LPR status either because of his 1987 conviction or because of his failure to disclose that conviction when he entered as an LPR in 1990.1
On August 17, 2004, the immigration judge ("IJ") denied all of Sum's applications for relief. With respect to Sum's application for a § 212(h) waiver, the IJ held there was "no basis on which to conclude that Sum's admission for permanent residence was somehow in violation of law." The IJ found Sum ineligible for the waiver and pretermitted his adjustment application. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision without opinion. Because the BIA affirmed without opinion, we review the IJ's decision as the final agency determination. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004); see also 8 C.F.R. § 1003.1(e)(4)(ii).
I. THE § 212(h) WAIVER
Section 212(h) authorizes the Attorney General to waive certain criminal grounds of inadmissibility, including a crime involving moral turpitude, a single conviction of simple possession of thirty grams or less of marijuana, multiple criminal convictions, prostitution, and offenses by diplomats asserting immunity from prosecution for serious criminal activities. 8 U.S.C. § 1182(h); see also id. § 1182(a)(2)(F) (authorizing waiver). Crucially for Sum, § 212(h) provides one of the few forms of relief available to non-citizens who have been convicted of aggravated felonies. Although § 212(h) does not itself waive an aggravated felony, it potentially provides discretionary relief to non-citizens who otherwise would be eligible for adjustment of status, but for certain grounds of inadmissibility such as crimes of moral turpitude.
However, LPRs and non-LPRs are not eligible for the § 212(h) waiver on equal terms. As part of the 1996 immigration reform, Congress amended the statute to make it more difficult for LPRs to obtain § 212(h) relief. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208,
The crux of this appeal is whether, despite the arrest Sum concealed at the time of his admission for permanent residence, Sum is now ineligible to seek § 212(h) relief. The IJ found that Sum was "previously admitted" for permanent residence within the meaning of § 212(h), had been convicted for an aggravated felony after his admission, and was therefore barred from seeking § 212(h) relief. Sum argues, however, that because he acquired permanent residence through fraud or misrepresentation, he was never lawfully admitted for the purpose of the bar.
We review the proper construction of § 212(h) de novo, Kankamalage v. INS, 335 F.3d 858, 861-62 (9th Cir.2003), employing all "traditional tools of statutory construction" to determine "whether Congress has directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "If Congress has done so, our inquiry is at an end; we `must give effect to the unambiguously expressed intent of Congress.'" FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778).
Our analysis begins with the text. The statutory text bears repeating here: "no waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... since the date of such admission the alien has been convicted of an aggravated felony." 8 U.S.C. § 1182(h). Despite its apparently redundant phrasing, the text is divisible into two distinct phrases: namely, (1) "an alien who has previously been admitted to the United States" and (2) "as an alien lawfully admitted for permanent residence." Id.; see Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir.2008) (parsing the statute in this manner). The first phrase is controlling in this case. In other words, the application of the bar turns on what it means to have "previously been admitted" to the United States "as" an LPR.
This two-part structure is put in sharper relief when § 212(h) is read against the definitions provision of the INA, which sets forth separate definitions for "admitted," as used in the phrases "previously
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