699 F.3d 346 (4th Cir. 2012), 11-1845, Leiba v. Holder

Docket Nº:11-1845.
Citation:699 F.3d 346
Opinion Judge:TRAXLER, Chief Judge:
Party Name:Martin Mendoza LEIBA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. American Immigration Council, Amicus Supporting Petitioner.
Attorney:Xavier F. Racine, Calderon, Racine & Derwin, PLC, Arlington, Virginia, for Petitioner. Benjamin Winograd, American Immigration Council, Washington, D.C., for Amicus Supporting Petitioner. Sheri Robyn Glaser, United States Department of Justice, Washington, D.C., for Respondent. Tony West, Assista...
Judge Panel:Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and MAX O. COGBURN, JR., United States District Judge for the Western District of North Carolina, sitting by designation. Petition granted by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge DAVIS and Judge COGBURN joined.
Case Date:November 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 346

699 F.3d 346 (4th Cir. 2012)

Martin Mendoza LEIBA, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General, Respondent.

American Immigration Council, Amicus Supporting Petitioner.

No. 11-1845.

United States Court of Appeals, Fourth Circuit.

November 9, 2012

Argued: Sept. 20, 2012.

Page 347

ARGUED:

Xavier F. Racine, Calderon, Racine & Derwin, PLC, Arlington, Virginia, for Petitioner.

Benjamin Winograd, American Immigration Council, Washington, D.C., for Amicus Supporting Petitioner.

Sheri Robyn Glaser, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Tony West, Assistant Attorney General, Anthony P. Nicastro, Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for Respondent.

Mary Kenney, American Immigration Council, Washington, D.C., for Amicus Supporting Petitioner.

Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and MAX O. COGBURN, JR., United States District Judge for the Western District of North Carolina, sitting by designation.

Petition granted by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge DAVIS and Judge COGBURN joined.

OPINION

TRAXLER, Chief Judge:

Martin Mendoza Leiba (" Mendoza" ) petitions for review of a decision of the Board of Immigration Appeals (" the Board" ) affirming a decision of an immigration judge (" IJ" ) granting a motion by the Department of Homeland Security (" DHS" ) to pretermit Mendoza's applications for adjustment of immigration status and for a waiver pursuant to Immigration and Nationality Act (" INA" ) § 212(h). We grant Mendoza's petition.

I.

Mendoza is a native and citizen of El Salvador who entered the United States illegally. He married in 1994, and he and his wife now have five children. Mendoza adjusted his status to that of lawful permanent resident (" LPR" ) in 1995 through an employment-based immigration petition, and his wife became a naturalized U.S. citizen in 2001.

In 2008, Mendoza was convicted in the Circuit Court of Loudoun County, Virginia, of receiving stolen property, see Va.Code § 18.2-108, and he received a 36-month suspended sentence. DHS subsequently commenced removal proceedings against Mendoza in 2010 by filing a Notice to Appear (" NTA" ) with the Executive Office of Immigration Review. The NTA charged Mendoza with removability under INA § 237(a)(2)(A)(iii), see 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who, " any time after admission," was convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G), i.e., which includes theft offenses for which the term of imprisonment was at least one year. Through

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counsel, Mendoza admitted the NTA's factual allegations but denied removability as charged and indicated he would apply for adjustment of status and a waiver under INA § 212(h). See 8 U.S.C. § 1182(h). DHS subsequently moved to pretermit Mendoza's application, arguing that his conviction rendered him ineligible for a § 212(h) waiver.

The IJ granted DHS's motion, ruling that an alien convicted of an aggravated felony after obtaining LPR status is ineligible for a § 212(h) waiver. The IJ therefore ordered that Mendoza be removed to El Salvador. Mendoza appealed to the Board, which affirmed the decision and dismissed the appeal. Mendoza now petitions for review of the Board's decision.

II.

Mendoza argues that the Board erred in finding him barred under § 212(h) from obtaining a waiver of inadmissibility. We agree.

We review de novo the Board's legal conclusions, including those regarding statutory construction. See Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir.2008). We also grant appropriate deference to the Board's interpretation of the INA under the two-step framework set out in Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under that framework, we first consider " whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. If a statute is unambiguous concerning the question presented, then " that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778; see Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.2008). On the other hand, if we conclude that " Congress has not directly addressed the precise question at issue, ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. Inc., 467 U.S. at 843, 104 S.Ct. 2778.

The statutory provision at the center of this case, § 212(h) of the INA, grants the Attorney General the discretion to excuse the commission of certain crimes or other misconduct that would otherwise preclude noncitizens from entering or remaining in the United States. As it applies to Mendoza, § 212(h) allows the Attorney General to waive an alien's inadmissibility that is based on the alien's conviction for an aggravated felony if the " denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien." 8 U.S.C. § 1182(h)(1)(B).1

Before 1996, the only aliens categorically barred from receiving § 212(h) waivers were those who had been convicted of committing, or attempting to or conspiring to commit, " murder or criminal acts involving torture." Immigration Act of 1990, Pub.L. No. 101-649, § 601(d)(4), 104 Stat. 4978, 5076-77. However, with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA" ), Congress created a new category of aliens ineligible for the waiver. New language in § 212(h) provided, in pertinent part, that

No waiver shall be granted under this subsection in the case of an alien who

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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.

Pub.L. No. 104-208, Div. C, § 348, 110 Stat. 3009 (emphasis added), codified at 8 U.S.C. § 1182(h).2 The IIRIRA also provided statutory definitions for " admission" and " admitted," which are defined as " with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Pub.L. No. 104-208, Div. C, § 301(a), 110 Stat. 3009 (emphasis added), codified at 8 U.S.C. § 1101(a)(13)(A). On the other hand, the INA defines the term " lawfully admitted for permanent residence" as " the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant." 8 U.S.C. § 1101(a)(20).

In Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir.2006), we construed the definition of " admission" and " admitted" in a context slightly different than that before us here. In that case, the alien, Shanu, had been admitted to the United States on a nonimmigrant visa for pleasure on a six-month visa in 1989. See id. at 579. He remained in the country illegally when his visa expired and was

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able to adjust to LPR status in 1996. See id. In 1998, however, he was convicted of various fraud offenses. See id. On the basis of these convictions, he was charged with removability under 8 U.S.C. § 1227(a)(2)(A)(i), which provides that

Any alien who—

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable.

8 U.S.C. § 1227(a)(2)(A)(i) (emphasis added); Aremu, 450 F.3d at 579-80. The IJ concluded that " the date of admission" in this context included not only the date that Shanu was originally admitted to this country but also the date of his adjustment to LPR status, and therefore ordered Shanu removed. See Aremu, 450 F.3d at 580. The Board affirmed on appeal, and Shanu filed a petition for review in our court. See id.

We granted Shanu's petition under the first prong of Chevron review, concluding that in Shanu's case, " the date of admission" unambiguously referred to the date he entered the country, not the date that he adjusted his status. See id. at 582-83. We reasoned that an " [a]djustment of status is a method of acquiring status as a permanent resident that is only available to those already within the United States." Id. at 581. Because " admission," as...

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