Bracamontes v. Holder

• Decision Date: 29 March 2012
• Docket Number: 10–2280.,Nos. 10–2033,s. 10–2033
• Parties: Adolfo Rendon BRACAMONTES, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.Adolfo Rendon Bracamontes, Petitioner, v. Eric H. Holder, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

675 F.3d 380

Adolfo Rendon BRACAMONTES, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.Adolfo Rendon Bracamontes, Petitioner,

v.Eric H. Holder, Jr., Attorney General, Respondent.

Nos. 10–2033

10–2280.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2011.Decided: March 29, 2012.

ARGUED: Satnam Singh, Norfolk, Virginia, for Petitioner. Sheri Robyn Glaser, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Ernesto H. Molina, Jr., Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

Petition for review granted; vacated and remanded in part and dismissed in part by published opinion. Judge WYNN wrote the majority opinion, in which Judge AGEE concurred. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part.

OPINION

WYNN, Circuit Judge:

Based on Petitioner's conviction for an aggravated felony, the United States sought to remove him pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA). The immigration judge (“IJ”) denied Petitioner statutory eligibility for a waiver of inadmissibility under 8 U.S.C. § 1182(h), or section 212(h) of the INA. Following Petitioner's appeal, the Board of Immigration Appeals (“BIA”) agreed with the IJ, concluding that Petitioner's post-entry adjustment of status to lawful permanent resident constituted an “admission” to the United States.

Because we find that the plain language of section 212(h) does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility, we grant the petition, vacate the order of removal, and remand this case to the BIA for further proceedings.

I.

Petitioner Adolfo Rendon Bracamontes's mother brought him into the United States illegally from Mexico in 1976, when he was under two years old. On December 4, 1987, Petitioner and his mother were granted temporary resident status, which was adjusted to lawful permanent resident status on May 11, 1990. Since 1976, Petitioner has lived continuously in the United States, except for a weeklong visit to Mexico in June 1988.

In 1999, Petitioner pled guilty in Virginia state court to the aggravated felony of malicious wounding. He was sentenced to ten years in prison, with seven years suspended; he served his sentence and probation and has subsequently complied with all court orders. Petitioner was released from custody in May 2001, and shortly thereafter, he married a United States citizen. He has three biological children, ages seven, seventeen, and eighteen, and a nineteen-year-old stepson.

In January 2009, Petitioner's spouse submitted an I–130 Petition for Alien Relative for his benefit, along with Petitioner's I–485 Application to Register Permanent Residence or Adjust Status. Petitioner sought a waiver of removal in spite of his aggravated felony conviction, based on his status as the spouse of a United States citizen, and asserted that his removal would result in extreme hardship for his spouse and children. Following an interview in August 2009, Petitioner's application for adjustment of status was denied on the grounds that because he was already a lawful permanent resident, he was not eligible for adjustment. Removal proceedings were immediately initiated against Petitioner.

On October 27, 2009, an IJ granted the Department of Homeland Security's Motion to Pretermit Petitioner's applications for adjustment of status and a waiver, concluding that he was ineligible for a waiver under 8 U.S.C. § 1182(h), or section 212(h) of the INA (“section 212(h) waiver”), because of his aggravated felony conviction. Specifically, the IJ found that Petitioner was admitted to the United States as a returning temporary resident following his weeklong visit to Mexico in 1988, and was then subsequently “admitted” as a lawful permanent resident by virtue of the adjustment of his status in 1990. Petitioner appealed the IJ's decision to the BIA.

While that appeal was pending, Petitioner filed a motion to remand on July 13, 2010, seeking consideration and adjudication of an application for protection under the United Nations Convention Against Torture (“Convention Against Torture”) on the grounds that he feared retaliation from Mexican gangs for refusing to join them and opposing their activities in California. On August 30, 2010, the BIA dismissed Petitioner's appeal, agreeing with the IJ on the definitions of “admission” and “lawfully admitted for permanent residence.” The BIA also denied Petitioner's motion to remand, holding that Petitioner had failed to show that he could not have presented his Convention Against Torture claim at the earlier proceeding before the IJ.

On September 9, 2010, Petitioner filed a petition for review of the BIA decision with this Court. On September 28, 2010, he filed a motion with the BIA to reconsider his eligibility for a section 212(h) waiver and his motion to remand. Petitioner also sought a stay of removal. That motion was also denied, on the grounds that Petitioner had failed to show any error of law or fact that would change the decision, or to meet his burden of showing that his newly submitted—and largely duplicative—evidence might alter the outcome. Petitioner filed another petition for review of that BIA decision with this Court. The petitions were consolidated by this Court on November 17, 2010. ¹

II.

On appeal, Petitioner presents two main arguments: (1) he is not statutorily barred from seeking a section 212(h) waiver of inadmissibility; and (2) the BIA abused its discretion by denying his motion to remand and precluding him from seeking additional relief under the Convention Against Torture, by denying his motion to reconsider, and by denying him a stay of removal. We consider each issue in turn.

A.

First, Petitioner argues that contrary to the IJ and BIA decisions, he is eligible to seek a waiver of inadmissibility under section 212(h). We review de novo legal conclusions of the BIA, including issues of statutory construction, Li Fang Lin v. Mukasey, 517 F.3d 685, 691–92 (4th Cir.2008),² while affording appropriate deference to the BIA's interpretation of the INA, as outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See also INS v. Aguirre–Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

Under the principles articulated in Chevron, we begin our analysis with a determination of whether the statute at issue is unambiguous with respect to the question presented. If so, then the plain meaning controls the disposition of Petitioner's appeal. Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.2008) (citing Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Thus, we must determine whether Congress, through the INA, has unambiguously prohibited an alien from seeking a section 212(h) waiver if he commits an aggravated felony subsequent to his post-entry adjustment to lawful permanent resident status.

On the other hand, “[i]f ... the statute is silent or ambiguous with respect to the specific issue before us, the question for this court becomes whether the BIA's interpretation ‘is based on a permissible construction of the statute.’ ” Id. (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Moreover, the Supreme Court has noted that if there is ambiguity in the statute, judicial deference to the executive branch agency “is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.” Aguirre–Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (internal quotation marks and citation omitted).

The principal statutory provision at issue in this case, section 212(h) of the INA, vests the Attorney General with the discretion to waive the inadmissibility of an alien based on the alien's conviction for an aggravated felony if the denial of admission “would result in extreme hardship” to the alien's United States citizen spouse or other family members. 8 U.S.C. § 1182(h). Specifically, section 212(h) states in pertinent parts:

The Attorney General may, in his discretion, waive the application of [the statutory bars to admissibility based on, inter alia, a conviction for a crime involving moral turpitude] ... if—

(1)....

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien;

.... and

(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

.... 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 either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

Id. (emphasis added). Thus, by its plain language, section 212(h) prohibits an alien from receiving a waiver of inadmissibility if that alien lawfully entered the United States with lawful permanent resident status and committed an aggravated felony subsequent to “such admission” as a lawful permanent resident.³ Id. (emphasis added).

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